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Jewish Ethics and the Care of End-of-Life Patients

KTAV Publishing House, Inc.

Chapter One

Rabbi David Bollag

HALAKHAH, the term now used to denote the body of Jewish religious law, is a Hebrew word meaning "to walk" It expresses the aim of Jewish law, which is to accompany the Jewish person on his way through life, implying that he live his life according to its prescriptions.

One of the most characteristic features of Halakhah is to attend at every step in a Jew's life, even the apparently most profane. Jewish religious law comprises regulations, in the literal sense of the word, from cradle to grave, from the first to the final moments of life, from birth until death. "From before birth until after death" would be a more appropriate expression, because contraception, abortion, gene technology, and stem-cell research, as well as post-mortem examination and organ donation, are all problematic areas confronted by the Halakhah and subject to its decisions.

Thus Jewish religious law includes much more than so-called ritual matters. Of course these too constitute an integral, fundamental, and essential component of Judaism. Prayer, the Sabbath, the festivals, as well as kashrut, the laws governing food, are allindispensable components of Jewish religious practice. Halakhah is not, however, restricted to these areas, and, in its concern for all sides and aspects of human life, it also necessarily addresses and decides on the issues of assisted death and terminal care.

Jewish religious law is founded on Divine revelation. Halakhah is primarily a body of law given by God - in philosophical terms, it is heteronomous. This distinguishes it from, and to an extent contrasts it with, autonomous law, which is man-made and based on human reason alone. Nevertheless, many Jewish philosophers of religion throughout the ages have taken pains to emphasize that there is never a contradiction between Halakhah and human reason, which is to say that it is never irrational. On the contrary, Halakhah may be understood and explained rationally and is in complete consonance with human reason.

For example, the prohibition of murder in the Decalogue does not differ from the prohibition of murder found in human ethical systems. The origins of the prohibitions differ, but their content is the same.

According to Orthodox Jewish tradition, the commandments of the Torah, on which today's Halakhah is based, were revealed by God to the Jewish people at Mount Sinai more than three thousand years ago. Now it is clear that the commandments were revealed with reference to that era. Questions of Halakhah that arose in the ensuing centuries out of new circumstances, developments, and discoveries receive no explicit mention in the Sinaitic Law. Nevertheless, the commandments revealed then and anchored in the Torah have formed the basis of Jewish religious law to the present day, for they provide the principles and criteria by which new questions are resolved. The fields of technology and medicine, above all, have made huge progress in the last hundred years, and this progress has led to a plethora of halakhic questions.

The basis for the solution of novel halakhic problems is the principle of analogy. Contemporary halakhic authorities will endeavor to compare new, as yet unresolved problems to existing halakhic rulings, in order to adopt the considerations and decisions they apply and to use them in solving the new problem. This was the approach to questions arising out of the advent of electricity, and it is the approach to the attempted resolution of halakhic problems in modern medicine.

The complexity of many halakhic questions arises from the multiplicity of factors and aspects which must be considered in the process of argument and decision-making. Thus it is understandable that divergent halakhic decisions may often result, and that two rabbis may arrive at contrary conclusions for the same query. Both are correct and acceptable in that their authors both regard the commandments of the Divine revelation at Mount Sinai as the essential basis and the obligatory starting point for the treatment of halakhic questions.

The very complexity of many halakhic questions, particularly in the field of medicine, often causes a rabbi's pesak halakhah (religious-legal decision) to be very individual in nature. As the product of halakhic deliberations, it must take into account a multiplicity of criteria and factors about the specific situation. With questions of a medical nature, the considerations that enter the process of decision-making must include psychological, economic, sociological, and sometimes sociopolitical factors in addition to the medical facets.

Thus, abstract discussions of halakhic ordinances are often of only theoretical significance, because they treat and answer specific questions without reference to the environment. They are in vitro decisions. Of course they have a role to play in vivo, but in the process they often undergo significant restriction, expansion, and alteration.

The aim of this chapter is to present an overview of the content and history of Jewish religious law. The most important halakhic works and their authors will be introduced and briefly described. The presentation is arranged chronologically but should not be regarded as a history of the Halakhah. Instead, our primary purpose is to present and clarify the religious and theological basis, the sources, external influences, and inner mechanisms, involved in modern halakhic decision-making.

TORAH

The Five Books of Moses, the Pentateuch, form the basis of all halakhic ordinances. Jewish religious law recognizes 613 positive and negative biblical commandments. All 613 are to be found in the Pentateuch.

The other sections of the Jewish Bible, or Old Testament, are of little halakhic importance relative to the Pentateuch. These other sections, the books of the Prophets and the Writings (the Hagiographa), do occasionally play some role in halakhic discourse, but it is both qualitatively and quantitatively very limited. None of the biblical commandments originates from the Prophets or Writings, and no essential aspect of any commandment stems from these parts of the Bible. Only the Pentateuch is of primary importance for the birth and development of the Halakhah.

The Five Books of Moses are often called the Torah and are frequently referred to as the Five Books of the Torah. The word torah means "instruction" and expresses the Torah's purpose of guiding us on our way through life.

The term Torah is not always used only in this narrow sense. Sometimes the whole Bible is denoted as Torah. In a halakhic context, however, the name Torah is frequently used in a much broader sense, denoting the literature of Halakhah as a whole. All the works composed over the ages in the field of Halakhah are known in toto as Torah.

The Pentateuch serves as the foundation for the structure of all these works. Nevertheless the Five Books of Moses contain only a small fraction of the information required for the comprehension and application of the biblical commandments. For example, the prohibition of work on the Sabbath that is mentioned in the Decalogue is incomplete, because it does not define what is meant by work. Does the prohibition mean to forbid those activities on Shabbat by which we normally earn our living? Does it intend the interdiction of all strenuous physical actions - or perhaps something else?

In the view of Orthodox Judaism, God revealed the 613 commandments at Mount Sinai and instructed Moses exactly how to record them in writing. At the same time, for each commandment, God gave Moses explanations necessary for its application and comprehension. Thus He informed Moses, among other things, that the prohibition of labor on Shabbat comprises thirty-nine different acts of work, namely those performed during the construction of the Tent of Meeting in the desert, and analogous acts.

The part of the ordinances recorded in the Five Books of Moses is known as the Written Torah or Written Law. The additional explanations are called the Oral Law or Oral Tradition because they were not intended to be written down and were originally passed on by word of mouth down the generations.

The rise of Liberal Judaism began some two hundred years ago, and for the sake of simplicity, we will include the contemporary Reform and Conservative movements in that term. Their conception of the origin and development of the Torah is fundamentally different and represents the view that a considerable part of the Written and Oral Torah does not go back to a Divine revelation but is of human authorship, and above all, that what Orthodoxy calls the Oral Law arose only much later, after the destruction of the Second Temple.

Orthodox Judaism, however, adheres to the tenet that the Oral Tradition originated at Mount Sinai and explains that this part of the Sinaitic Tradition was not to be committed to writing in order to ensure a transmission free of errors. Information handed down orally can always be checked for having been correctly understood, with the possibility of corrective intervention. Thus, in Orthodox thought, the Torah falls into two mutually dependent and complementary parts: the Written Torah, being the Five Books of Moses, and the Oral Torah, which will be presented in detail below.

MISHNAH

For some fifteen hundred years the Oral Law was handed down from generation to generation without being recorded in writing. Individual scholars presumably made private notes as a memory aid, but these were intended only for personal use and were not published.

The compass of the Oral Tradition greatly increased during this time. After forty years of wandering in the desert, the Jewish people entered their land, where they created their own state, established a kingdom, and built a Temple. They faced many novel situations, for some of which exact instruction was available in the Sinaitic Law. However, for a significant part of these unprecedented situations new decisions had to be made. These new halakhic decisions on the most varied religious, political, and economic questions were all absorbed into the Oral Tradition, and their compass has grown steadily.

With the destruction of the Second Temple in 70 C.E., a new, very perilous situation arose for the Jewish population of the Land of Israel. The Temple, which had been the religious and spiritual center uniting them, no longer existed, and the Romans, a major political and military power, ruled the land with an iron hand. Among other things, they forbade the Jews under pain of death to study Torah and thus endangered the complete and sound transmission of the Oral Tradition.

Although Jews in considerable numbers ignored the prohibition of Torah study, tradition weakened so considerably with time that the loss of important parts of the Oral Tradition was widely feared. Rabbi Yehudah Hanasi (R. Judah the Prince), head of the Jewish community in Palestine at the end of the second century C.E., therefore decided, after thorough deliberation, to commit it to writing. He was fully aware that this was a breach of the original prohibition against writing down the Oral Law, but in view of the emergency, he justified the infringement as right and essential in order to ensure the intact transmission of the Torah.

Rabbi Judah the Prince had an extraordinary memory. He knew the whole Oral Law by heart, with a complete overview of its contents. He knew which scholar had handed down or innovated which decisions and where disagreements existed between the authorities; relying on his memory, he committed the Oral Law to writing.

Rabbi Judah's work is called the Mishnah. The word means "study" and "repetition," and refers to the prime function of the Mishnah text as the vehicle for study and rehearsal of the Oral Torah.

From what we have said, it is clear that Rabbi Judah the Prince did not so much write the Mishnah as write it down. He was not the author but the editor of the Mishnah. His labor, and his tremendous achievement, lie in his having collected the entire contents of the Oral Torah and prepared it for publication. He eliminated repetitions and whatever material he regarded as superfluous, and gave the final material a thematic arrangement.

The Mishnah is made up of six mains sections, known in Hebrew as sedarim ("orders"). These are divided into tractates (massekhtot), and these again into chapters. The Mishnah comprises a total of sixty-three tractates.

All the material that was part of the Oral Law at the time of Rabbi Judah the Prince but, for one of the reasons mentioned, was not included by him in the Mishnah is known as baraita, an Aramaic word meaning "outside, external." We will have more to say about the baraita below.

The prescriptions of Jewish religious law appear in the Mishnah as "case law." This means that halakhic rulings are presented for quite specific cases without explanation of the fundamental rules or principles behind them. What is more, the Mishnah is very laconic and is indeed formulated in key-word style. Rabbi Judah decided on this style of recording the Mishnah because his prime purpose was simply to save the Oral Law from oblivion. The Mishnah is an extremely brief memory aid to the Oral Law and always required a parallel commentary for its full comprehension.

TALMUD

The Mishnah achieved its purpose within a very short time, and was accepted everywhere as a reliable and authoritative collection of the Oral Law. In Palestine and also in Babylon, where large and important Jewish centers had existed since the destruction of the First Temple, the information in the Mishnah now became the starting point for religious-legal discussion and for consideration of every halakhic question.

Now, as we have said, this information was formulated not in full but rather as key-words. Because any written statement can be variously interpreted and understood, a lively debate about the correct interpretation of the Mishnah arose soon after its publication. All the prominent rabbis at the great academies in Palestine and Babylon participated in the discussions, presenting their opinions and arguments. These debates, conducted orally, were not recorded; they acquired the status of Oral Law and were handed down as such.

However, just as with the Mishnah itself, the concern gradually prevailed that these discussions, which had grown in importance and volume, might be forgotten, and again the decision was taken to record Oral Law. In Palestine the discussions in the academies were committed to writing toward the end of the fourth century, and in Babylon, at the turn of the fifth century and the beginning of the sixth. This written record of the interpretation of the Mishnah is known as the Talmud ("learning" in Hebrew). The Talmud composed in Palestine is known as the Jerusalem Talmud (JT), and that in Babylon, as the Babylonian Talmud (BT).

The Talmud was not carefully edited in the modern sense and should be regarded as a loose collection of discussions. As a result, it often contains repetitions, overlapping material, and also, frequently, contradictions. By whom and when the Talmud was composed is not entirely clear. In the current scientific view it was assembled by various scholars over a number years or even decades.

Although a talmudic discussion always starts from the Mishnah, the Talmud differs fundamentally from that work. While the Mishnah, in key-word style, wishes merely to save the most essential data of the Oral Law from oblivion, the Talmud aims at the most comprehensive analysis possible of the whole Oral Tradition, drawing all relevant aspects of the Mishnah into the discussion. The Talmud seeks to discover the reasons behind the rulings of the Mishnah, to understand the abstract and theoretical principles underlying the mishnaic case law. In contrast to the Mishnah, it also seeks to examine the connection between the Written and the Oral Torah, to ascertain what biblical commandment lies at the base of each mishnaic ruling, and to uncover the integral connection between the Written and the Oral Law.

(Continues...)

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Excerpted from Jewish Ethics and the Care of End-of-Life Patients Copyright © 2006 by Peter Joel Hurwitz. Excerpted by permission.
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