Quicksilver כספית

Teasers about Tenafly eruv battle

Tenafly NJ was home to a big communal and legal brouhaha over a proposed eruv.  The eruv was proposed on June 1, 1999 and, once installation of the ritual boundary was underway in fall 2000, the eruv was opposed by the Borough of Tenafly. The lawsuit wound its way through U.S. federal courts, the eruv supporters won in the U.S. Court of Appeals (pdf file), and a final appeal was denied by the Supreme Court. Is it discriminatory for a government to deny Jews the opportunity to set up a ritual eruv? Does it violate the Establishment Clause for a municipality to authorize and assist an eruv?

At the Jewish Law website, you can read amicus curiae briefs by the Orthodox Union (joined by ADL, RCA, AJC, Hadassah, Reform Judaism) and Agudath Israel. The site also mentions two previous cases: Smith v. Community Bd. No. 14, 491 NYS2d 584, 128 Misc2d 944 (S.Ct. Queens County, 1985) and ACLU of New Jersey v. City of Long Branch, 670 F. Supp 1293 (D.N.J. 1987). Background on Tenafly for the media, with many good links. An atheist's brief recap and comment on the Tenafly case.

Read about the ACLU's involvement, which went from neutral to anti-eruv, I believe.

Take care and stay well-bounded,

Kaspit

PS  I found various legal articles that discuss the Tenafly case. These include:

COMMENT: USING AN ERUV TO UNTANGLE THE BOUNDARIES OF THE SUPREME COURT'S RELIGION-CLAUSE JURISPRUDENCE 5 U. Pa. J. Const. L. 831 by Shira J. Schlaff

SUMMARY (courtesy of Lexis): ... This comment uses the creation of an eruv, the name of this procedure, as a case-study to display the ambiguities of current First Amendment law and the need for more specific guidance from the Supreme Court on what the Establishment Clause permits and forbids and what the Free Exercise Clause requires. ... An eruv should also pass Establishment Clause scrutiny even if it is considered speech, and no other groups are permitted access to the forum since it passes the Lemon and endorsement tests even if there is no additional purpose of complying with the Free Speech Clause. ... If a restriction on an eruv fails the reasonableness test that would most likely be applied if a wide variety of groups are denied access and restrictions on other forms of speech do not, permitting an eruv is not "preferential," but neutral. ... Since an eruv would almost always be less obtrusive than any other request, a city cannot permit other groups to have access, and deny access to eruv seekers on the grounds that its ordinance is narrowly tailored to the compelling interest of avoiding visual clutter and maintaining control over city property. ... " In Lukumi, the Court noted that the Free Exercise Clause protects against governmental hostility which is "masked as well as overt. ...

ARTICLE: A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence by CHRISTOPHER C. LUND (26 Harv. J.L. & Pub. Pol'y 627) Excerpt:

The general applicability test puts center stage the existence of secular exceptions (and thus the existence of secular burdens) in determining whether a religious claimant should get an exception. ... Other cases, such as Tenafly Eruv Association, Inc. v. Borough of Tenafly n90 and Rader v. Johnston, n91 also expose the role that demographic factors can play in exemption analysis. In the Tenafly case, a group of Orthodox Jewish residents sought permission to attach lechis, which are thin black strips of plastic, along neighborhood utility poles. In doing so, the residents were attempting to create an eruv, a ceremonial demarcation of a particular area. Creating an eruv allows Orthodox Jews, who are usually forbidden from pushing or carrying objects outside their homes on the Sabbath, to conceive of the entire space within the eruv as their home. Without an eruv, Orthodox Jews who have small children or who are disabled cannot attend synagogue on the Sabbath. n92 The Third Circuit granted the residents a preliminary injunction against enforcement of an ordinance forbidding signs on public places because the rule was not enforced in a generally applicable manner. The Third Circuit relied upon the fact that, among other exceptions, the Borough had allowed orange ribbons to remain on utility poles during a controversy over school regionalization and the fact that residents often nailed their address number signs to utility poles. n93 As these exceptions were necessary to the result, the clear implication is, of course, that if the Orthodox Jews had lived in a community where people posted their address numbers over their doors and where the school district was not embroiled in political controversy, the Orthodox Jews living there would have no right to an eruv. n94    (n94 I must confess that this discussion oversimplifies the case in Tenafly. The Borough made several other exceptions to the rule; it permitted local churches to post permanent directional signs, residents to post lost animal signs, and the local Chamber of Commerce to affix holiday displays. Id. at 151-52. My point, however, remains. All of the secular exceptions seem traceable to idiosyncratic factors about the Borough of Tenafly that may not exist in other communities. It seems instinctive to question the sense of an exemption system that makes religious claimants' rights contingent on such factors.)

NOTE: The Utility and Efficacy of the Rluipa: Was It a Waste? (31 B.C. Envtl. Aff. L. Rev. 723) by SARA SMOLIK

The Appeals Court found that the association could not sustain its claim that the ordinance infringed on its free speech rights. n216 The association argued that the lechis that marked the eruv's boundaries were so innocuous that even members of the Tenafly Orthodox community  [*751]  would not be able to recognize them for what they were; rather, knowledge of the eruv and its boundaries would be passed by word of mouth. n217 Because of this, the court determined that the act of affixing lechis to the utility poles was not "sufficiently imbued with elements of communication to be deemed expressive conduct" worthy of protection under free speech jurisprudence. n218 The court concluded that, in the absence of evidence that such demarcations convey an "attitude or belief," geographical boundary lines, like the eruv or fences and walls, were not expression protected by the First Amendment. n219

In reaching this holding, the Tenafly Eruv court was obviously concerned with the implications of making it easier for plaintiffs bringing free exercise claims to allege an infringement of hybrid rights. n220 The court expressed concern that, by analyzing the construction of an eruv under the Free Speech Clause, it would set a precedent that would easily allow plaintiffs and courts to side-step the essential holding of Smith. n221 "Moreover, if solely the act of erecting a wall separating the interior of a building from the secular world constituted 'speech,' every religious group that wanted to challenge a zoning regulation preventing them from constructing a house of worship could raise a 'hybrid' rights claim triggering strict scrutiny." n222 Commentators have expressed similar concerns that Smith's exemption for hybrid rights threatens to swallow the rule it creates. n223

Judgment day approaches...

Judges and judgments in the news. Tom DeLay indicted. A new Supreme Court Chief Justice sworn in, effectively ending the chance for a Rehnquist Memorial Amnesty inspired by Biblical law. A Rosh Yeshiva resigns because he violates Jewish law (i.e., the law against homosexual activity).

In Israel, a convicted forger refuses to resign as a judge. She also destroyed court documents. (Am I missing something here?!) Judge Hila Cohen, at least you've got chutzpah. "Your hands are sullied with blood and your fingers with sin" (Isaiah 59), the Talmud (bShab 139a) assigns this verse to corrupt judges and court scribes.

The same Talmud page teaches that it is permissible to teach boorish judges a less sophisticated form of The Law. In other words, if you aren't educated, you are in no position to take advantage of the leniencies of the erudite. So, there is one law for the unlearned, like the "Bashkarians", and a more comprehensive law for Bnei Torah, i.e. scholars of rabbinic law. In jurisprudence, this is the difference between law for the judges and law for the masses. I wonder if it also might shed light on R. Moshe Feinstein's 1981 responsum on smoking, in which he argues that smoking is permissible because "The Lord preserves the simple" (shomer peta'im HaShem) but that Bnei Torah shouldn't get addicted or let their children smoke.

Finally, judgment will come for the Red Sox. Saved by the last game of the season, the Red Sox face the White Sox. Repent all ye sinners in Red Sox Nation, else we will be wearing white -- the pure color of the High Holy-Days -- this week.

May you be sealed in the book of life,

Kaspit

Photo credit and Haaretz article, and another weird update on Judge Hila.

Siamese twins and an exceptional Jewish law ruling

Joined at the heart, it's painful to realize that these Israeli twins were doomed from start. Ha'aretz reports that the ultra-Orthodox parents would have used modern diagnostics (cf. my previous post). Furthermore: "A source close to the family said that had the diagnosis of the conjoined twins been presented in time, the parents would have sought rabbinical approval to stop the pregnancy."

It's not the first time that an Orthodox family had Siamese twins who shared a heart.

Philadelphia, 1977. The country's top halakhic authority, R. Moses Feinstein, agreed orally to let C. Everett Koop terminate one (non-viable) of the doomed twins so that the other (viable) twin could live. Here's the story as told by Rabbi Moshe Tendler. R. Feinstein apparently treats the non-viable twin as a rodef, a pursuer, who may be terminated (cp. fetus that threatens a mother's life). I believe that R. Bleich (Tradition 31:1, 1996) and R. Tendler also suggest another rationale, based on classifying the non-viable twin as a treifa, a person who cannot live for long. R. Shabtai Rappoport harmonizes the two approaches. From any standpoint, R. Feinstein's decision is highly controversial because it seems to permit the active termination of a newborn for the sake of another's life.

R. Moshe Feinstein's compassionate and sui generis decision has been used to critique the Catholic position in a similar, more famous Siamese twins case in England. (by Leora Rosen, Gregg Easterbrook)

Sobering case to consider, as we enter the gates of repentence, the gates of judgment, as The Supreme Judge decides who shall live and who shall die.

May you be written and sealed in the book of life, a redemptive Rosh ha-Shanah (Jewish New Year) to all,

Kaspit

Another link: essay on conjoined twins cases

Technologies diagnosed recently under Jewish law...

Touching and thoughtful post about ultrasound: Does Jewish law permit the use of ultrasound to diagnose the condition of the fetus? ADDeRabbi mentions one Rabbi's view: "His rationale is based on anecdotal evidence of stress caused by misdiagnosis, and some examples of cases where misdiagnosis resulted in unnecessary operations, from which the infant died. He felt that the potential costs far outweighed the potential benefits that may result from such a procedure." Read ADDeRabbi's sound rebuttal here.

"Leading Torah authorities signed the proclamation, including but not limited to Rabbi Ovadia Yosef, Rabbi Yosef Sholom Elyashiv and the Rebbe of Gur." What was the occasion? Approval under Jewish law for "kosher" cellphones. HT to Town Crier.

And this just in time for the Days of Awe and awesome diets: Maalox is among the pharmaceuticals getting a kashrut certification. HT again to TC.

Shanah tovah u-metukah, a sweet and happy new year,

Kaspit

Circumcision as a once and future risk ...

Circumcision can be a hazardous activity in two ways, according to recent daf yomi readings (Shabbat ch. 19). For one, Jewish observance and performance of the bris milah (= covenant through circumcision) may be persecuted by Gentiles. The Romans apparently sought to suppress bris milah, as indicated by our mishnah (bShab 130a)* and other rabbinic texts (e.g., the midrash Mechilta 20:6). Despite the persecution, rabbinic Judaism continued to require bris milah, sometimes at the price of martyrdom. The gemara deduces that circumcision is extraordinary for various reasons, such as the thirteen (1) covenants for which milah is done.

Of course, circumcision is hazardous in a second way -- as a physical, "medical" procedure. In my draft chart on risk in Jewish law, I see circumcision as a fascinating case because, depending on the circumstances, a bris may exemplify four different categories of risk:

(A) First, I label circumcision as a medium risk for newborns -- not the lowest probability of harm, and not necessarily fatal harm -- in the pre-Modern era. On 134a, the rabbis focus on bandaging, which if applied badly could disfigure the child's genitalia. Circumcision was a rather risky surgical procedure in antiquity and medieval times (cp. story of womana whose first 2 sons died, 134a Shabbat).

(B) Secondly, the Talmud also looks at elevated risk conditions for circumcision, as when an infant is too weak, too emaciated, or discolored. As a general principle. the mishnah states that a sick newborn is not circumcised until he becomes healthy. Specifically, the rabbis felt that the infant's color indicates a danger to their life (e.g., yellow = jaundice) may require postponement of the procedure (134a).

(C) Third, today, yellow skin tone is much less an indicator of actual danger to the baby. Instead, doctors can measure jaundice directly. Thus, today circumcision has become far less risky thanks to medical changes.** (Hence, here is where Jewish medical ethics adapts to a change in medical care. Contrast this situation with cases of where modern-era traditional rabbis feel that nature has changed.) DovBear tells an anecdote and poses a fine question: If a "yellowish" newborn is cleared by a doctor as ready for an immediate circumcision, should the Jewish father stay loyal to the medieval rabbinic authorities who cautiously require the postponement of the bris milah? Or, can our Jewish medical ethics (halakhah) waive the postponement, and thereby recognize and downshift to a lower risk based on modern medicine's ability to cure, prevent and remedy nearly any risks from circumcision for newborns?

(D) Fourth, the halakhah of circumcision also tackles an extremely low or implausible probability of harm. The Talmudic rabbis deal with the belief (or superstition) that an ominous wind may increase the risks to the infant (bYev 72b). Today, we are not inclined to credit a spooky wind as adding any marginal risk to the bris of an 8-day newborn. Indeed, I venture to say that many Rabbis themselves may not have considered the additional marginal risk as significant. After all, they judged it unnecessary to delay circumcision for any wind-related risk because "The Lord preserves fools" (shomer peta'im haShem) -- God protects us from dangers, at least dangers like inauspicious winds.

Although circumcision may illustrate rabbinic handling of these four different types of risk, I would emphasize that circumcision is unique and not illustrative. Almost no matter what the risk, throughout history Jews have felt commanded under Jewish law to take chances and perform the bris. In other words, circumcision is one of those actions that rabbinic law considers as highly unresponsive to the changes in risk conditions.

Sincerely,

Kaspit כספית

APPENDIX: Tractate Shabbat chapter 19 deals with much Talmudic medicine. For care of a circumcised baby, for instance, the Talmud discusses the use of cumin, salves, bandages, treatment of the wound, . In interpreting a mishnah, several rabbis insist that sabbath prohibitions may be overridden in order to bathe the baby's wound, as well as its entire body, because to refrain from a hot water bath is considered dangerous (saqanah) (134b). The Talmud also discusses androgynous babies (136b), babies with rare conditions ("suppressed" or absent foreskin) premature births and the danger facing premies (135a). The Talmud also contemplates whether, during its first 30 days of life, a newborn is deemed a safeqa, one of doubtful viability (136a), which leads into several aspects of fetal and newborn medical ethics. Feverish newborn (137a). Retakes w/a second circumcision procedure (137b).

* Rabbi Eliezer rules that, as an exception to the Shabbat laws, the Jew who will perform a bris, the mohel, may carry a concealed knife to the ceremony. R. Shimon b. Elazar categorizes the bris as a divine commandment for which "Israel sent themselves to death" (masru Yisroel atzman).

** A fierce dispute is raging among different Orthodox Jewish groups over a traditional part of the bris, the removal of blood by suction (metzitzah). As I revise this post, I will add links to this dispute here. Apparently, metzitzah administered directly by mouth exposes the newborn to the very low probability of a severe infection or contagion.
On the halakhah: Hirhurim: Metzitzah I (intro, R. Soloveitchik), II (RCA statement), III (view of R. Feivel Cohen), IV, V (RCA June 7), and VI (NY Times).
On the politics: DovBear re: Rabbi Moshe Tendler (and comments re: regulation), Yeshiva Ortho. The Canonist (e.g. Agudas Israel v. Satmar). Media links.
Volokh Conspiracy blog.
Current status of dispute (YO).

The practice of halakhah: an eruv

For a personal look at the practical workings of halakhah, please read the wonderful story by Rabbi Publisher Student* about how he set up "the weirdest eruv on the block". Rabbi Gil Student's tale of the eruv** begins with the following anecdote, which speaks volumes I think about the actual practice of halakhah in daily life:

I live in Flatbush, in which there is an eruv that is a matter of great controversy.[1] In all likelihood, were it not for the social stigma I would use the "old" Flatbush eruv, which I believe my rabbe'im would approve but they refuse to take a stance on a controversial matter in a community in which they do not reside. When I first started davening at my current shul, the Flatbush eruv came up in conversation with the rabbi and when I asked him whether he liked it or not, he said that it depends who asks him. "What if I ask you?" "No, it's not for you." I can respect that answer. The "new" Flatbush eruv is not better than the old one in any meaningful way. Plus, it does not reach my block.

I was particularly struck by the response of the shul's rabbi, "No, it's not for you." Jewish law requires much more than systematic deductions from a compilation of rules. Judaism revolves around individual cases and situations; halakhah is quite casuistic. The controversy in Flatbush does have the advantage of making space for leniencies, depending on rabbinic discretion. Rabbi's Gil's account implies that another shul-goer might get the answer, 'Yes, that eruv is made for you.'

{New} Rabbinic controversies and minority opinions are recorded by the tannaitic literature (the Mishnah, the Tosefta and BT/JT baraitot). Why? Perhaps to rule out the path not taken; but also to leave a trace of alternative paths, their supporting authorities and plausible halakhic reasoning. Just like we see between generations of the U.S. Supreme Court, a dissent in one case may become the groundwork for a divergent decision (or, rarely, direct reversal) in a similar case in the next generation.

{New} To put Rabbi Gil's narrative in a social science context, I would turn to Pierre Bourdieu's Outline of a Theory of Practice. (Corrections welcome here as elsewhere.) Bourdieau is writing about different theoretical models of the social world. He offers an alternative to the mode of theoretical knowledge that he calls objectivist. Objectivist knowledge constructs rituals and social relations as if built upon formal roles, conditions, exchanges, and rules. When it comes to law, including halakhah ("Jewish law"), the typical objectivist model is legal positivism. (See Mishpat Ivri in Wikipedia.) Objectivist knowledge withdraws from the social experience, sets up a point of view that turns rituals and other practical activity -- such as daily practice of law -- into objects of observation and analysis, i.e. objectivist representations. Bourdieu (3f.) argues that objectivist abstractions exclude and deny certain experiences, including the ways that social agents really do have explicit knowledge of the structures of the social world. I think this means, crudely, that objectivists assume that the natives can't know as much as the 'objective' anthropologist. Bourdieu gives the natives far more credit.

Looking back at the eruv story, it is apparent that Rabbi Gil does have a sense of how halakhah functions in practice, how the experience of halakhah is fully objectified in its abstract rules. So he knows how to ask for a rabbinic opinion, who to ask, and he can observe the subtleties at play in his interaction with the shul rabbi. The shul rabbi, the eruv consultant(s) in the story, and, I dare say, Rabbi Gil are "virtuosos" who know both the legal postivist account of formal "Jewish law" as well as the lived experienced of halakhah as a practice. As Bourdieu writes:

... only a virtuoso with a perfect command of his 'art of living' can play on all the resources inherent in the ambiguities and uncertainties of behaviour and situation in order to produce the actions appropriate to each case, to do that which people will say "There was nothing else to be done", and to do it the right way. We are a long way, too, from norms and rules... but [objectivists are] never presuming to encompass in a catalogue of recurrent situations and appropriate conduct, still less in a fatalistic model, the 'art' of the necessary improvisation which defines excellence. (p8)

The language of rules and models, which seems tolerable when applied to 'alien' pracices, ceases to convince as soon as one considers the practical mastery of the symbolism of social interaction -- tact, dexterity, or savoir-faire -- presupposed by the most everyday games of sociability and accompanied by the application of a spontaneous semiology, i.e., a mass of precepts, formulae, and codified cues. This practical knowledge ... continuously carries out the checks and corrections intended to ensure the adjustment of practices and expressions to the reactions and expectations of other agents. (p10)

{New} Kudos to Rabbi Gil Student (and his various interlocutors) for the masterful, necessary improvisation of his "weird eruv" in Flatbush. From his account, it seems that he has indeed adjusted for "the reactions and expectations of other agents" in his neighborhood, who are both impressed and inspired by the virtuosity mobilized by Rabbi Gil and his co-conspirators. Kudos, too, for writing a fine, almost anthropological account of the transactions involved. Bourdieu would be pleased.

(For readers unfamiliar with an eruv, I expect to be writing more on this topic. Soon the daf yomi Talmud cycle will shift to the tractate Eruvin. Meanwhile, I wrote one post on Sabbath space and time, which has been "vanished" to Quicksilver: The Prequel here.)

Kol tuv,

Kaspit

* Insider joke based on comments to this Hirhurim post.
** An eruv is a ritually designated enclosure, a symbolic wall or fence that marks off an area in which some sabbath prohibitions on carrying do not apply. An eruv is an example of a legal fiction in Jewish law.

[1] For background on the Flatbush eruv controversy: Technical Jewish legal analysis at Hirhurim here (w/in-depth comments) and by R. Yisroel Hirsch. Analysis supporting the eruv here (HT here w/comments). Non-technical discussions by Gedanken (and again). R. Micha Berger at Avodah. The bitterness. Steven Weiss on the Manhattan eruv.

Recycling in halakhah (and in Europe)

"Take back" legislation in Europe is driving car makers to vastly improve recyclability (and recycling), as noted in articles in the NYT (9/19 HT Env Law) and Grist (9/20). Grist explains the "take back" laws which require manufacturers to assume end-of-life responsibility for the disposal of appliances, cars and certain other products. The New York Times argues that U.S. companies are lagging in recyclability work:

["Take back" legislation] is definitely not a cost of doing business in the United States, where such "extended producer responsibility" laws are not on the legislative agenda. "The U.S. has generally failed to match Europe in making producers responsible for their products, in large part because of its zealous overreliance on voluntary, market-based approaches," said Charles Griffith, auto project director for the Ecology Center, an environmental advocacy group based in Ann Arbor, Mich.

Meanwhile, the Kol-Chai listserv of Jewish environmentalists is mildly buzzing about more run-of-the-mill recycling, e.g. at Jewish schools and synagogues.

For an excellent Orthodox article on recycling, there is a Hebrew article in Techumin (Hebrew) by Rabbi Yosef Gavriel Bechhofer. This article looks in detail esp at the rules of bal tashkhit ("do not destroy") as they apply to various recycling scenarios. Rabbi Bechhofer argues that recycling is a discretionary positive commandment. He also offers an in-depth analysis of whether and when recycling of waste is required in order to avoid the negative command of bal tashkhit.

Rabbi Bechhofer also taped a teaching (shiur 98), Reversing Bal Tashchis: Recycling, which you may find at your local Orthodox school, yeshiva or maybe by mail order. ($5 each but soon to be on-line for free)

I also came across a sweet, idiosyncratic sermon by Rabbi Adilman. He cites Jewish sources on the reuse ("recycling") of various ritual items, such as the lulav , tzitzit (fringes), and foods, and he advocates reusing yahrzeit candles. Also, you may be interested in the Torah recycling network. Here, again, instead of "recycling" they might more accurately say reuse. Recycling of materials requires a significant amount of reprocessing, often with much attendant pollution. More environmentally sound are programs to reuse things, whether underutilized Torah scrolls or beverage containers, as with Israel's bottle bill program.

Kaspit

PS The Grist article also refers to the European law, "Restrictions on Hazardous Substances", which clamps down on lead, mercury (aka quicksilver), hexavalent chromium, PBBs and PBDEs (e.g. flame retardants). Reportedly, some U.S. businesses are not planning well for the European toxics use reduction deadline. The law is pushing manufacturers like Intel and Hitachi to make lead free electronics equipment.

Orthodox and unorthodox Jewish environmentalists

Hazon recently wrapped up another successful New York Jewish environmental bike ride. This unorthodox group also runs an Israel ride, created a buying co-op between urban communities and organic farmers, and worked on developing Limmud NY. Hazon was recently listed among the top 50 innovative Jewish groups. (I would have reported on the Hazon bike rider earlier, but for hurricane Katrina. New Yorkers can still go to their celebration party on Sept. 21st.

Canfei Nesharim, a more Orthodox Jewish environmental group, issued another newsletter. One article deals with one of my pet peeves, the plastic and styrofoam waste on Shabbat at Orthodox homes and shuls. The author recommends bulk purchase of recyclables, but it would be better to use non-disposables. Also in the newsletter:

Rabbi Shmuel Simenowitz from Sweet Whisper Farms explains the halakhah on re-using "graywater" (that's wastewater except toilet waste). Graywater can be used for toilet flushing and lawn and garden irrigation. The freiliche* Rabbi S. says that, under Jewish law (halakhah) graywater shouldn't be used for ritual handwashing. He also explains that graywater was analyzed in daf yomi about 2 months ago:

Not only is wastewater reuse consistent with halachic principles, but the Talmud actually addresses the issue of graywater explicitly. In Shabbos 78a, the gemara discusses volumes of liquids which may be transported from one domain to another on Shabbos. The quantity given for wastewater is a r'viis. The gemara then inquires as to the uses for wastewater. The gemara replies that it can be used to mix with clay (an industrial use). The Tosfos (ad loc.) goes even further to differentiate between lightly used non-potable water which could still be used for washing cups and platters and heavily soiled or disgusting water which even then could be reused as suggested by the gemara.

Thanks to a maple syrup-making Rabbi, Talmudic environmentalism lives on...

Kaspit

* "The freiliche farmer - Rabbi ShmuelL Simenowitz is one of the finest guitarists on the Jewish musical scene. Well versed in Jewish liturgical and folk melodies, he blends the different musical styles that shaped his life - Hebraic chant, Southern blues and rock, bluegrass, jazz and reggae. The result was "The Jewish Blues" released in 1980 with long-time friend and musical mentor, guitar legend Roy Buchanan. Simenowitz has toured extensively with his band, "The Jewish Blues" at concerts in colleges and festivals throughout the US, and has accompanied Shlomo Carlebach, Piamenta, and others. In 1995, Shmuel and his family established Sweet Whisper Farms, a horse-powered, organic maple syrup farm in rural Vermont. He heads "Project Ya'aleh V'Yavo" introducing day school students to farming. The Freilicher (happy) Farmer will perform his jolly tunes, and also sell his own maple syrup products, and offer maple syrup tasting."

Risk-taking with a Talmudic frame of mind [DRAFT]

Risks in the modern sense are not systematically addressed by Talmudic thought. Last week, the Talmudic daf yomi reading (bShabbat 129b) covered the risk-taking principle of “The Lord preserves the simple” (shomer peta’im HaShem -- see smoking example). In this post, I’ll try to get a handle on the overall Talmudic context for risk-taking, esp. as it may apply to environmental and occupational hazards. I’ll analyze the shomer peta’im HaShem principle later. [This post and accompanying chart are in draft form. Feel free to comment or ignore…]

Risks are somehow wrapped up in dangers, yet risks are not the same as dangers. So, to judge environmental, occupational, consumer, and other health risks from Talmudic state of mind, we first need to ask, what are dangers?

From danger to risk. Danger is a common term throughout halakhic literature. Dangers include anything that works to one’s serious disadvantage, causing loss, pain, damage, or injury. Life is an awesome and marvelous gift, yet danger is omnipresent. Some basic human activities hurt, like giving birth and dying. Plus, accidents happen. And God happens. In Judaism, the omnipresent HaShem (d/b/a The Almighty) is awe-inspiring and fearsome. Merciful and kind, God is also utterly dangerous. Arguably, any serious loss or harm is caused by HaShem or, at least, under God’s watch.

Danger can be felt. You can have an intuition of danger or look at the white of its eyes. Stand in the eye of the hurricane and then experience its destructiveness. Danger is about as real as pain and death.

“Risk” is a step removed from danger. Risk is a concept, a category of understanding (Kant) that adds to danger another element: chance, hazard, probability. Risk = danger + probability. Probability is found in two types of Talmudic reasoning about uncertainty.[1]

However, in modern thought, probability goes beyond uncertainty. Thanks to probability theory, nowadays ‘risk’ mixes danger with a dose of randomness. For Judaism, randomness seems to cut against a pure theology of divine power. By the same token, randomness throws a wrench into the theological machinery of free will. Perhaps this explains why, in futile protest to the arbitrary and random, Jewish law (halakhah) does not quite have a traditional Hebrew term that translates into ‘risk’

Luckily, Jews tend to eschew systematic theology. Classical Judaism works more smoothly with archetypes than abstract definitions. So, in our narrative and legal discourses, traditional Judaism does not define ‘risk’ yet it talks about numerous risks. Though it may be theologically contradictory or paradoxical, the Talmudic tradition also allows for fate, chance and the random.

Talmudic writings on risk-taking are expressed through various literary forms, e.g. as principles, rules, and cases/examples. To gain an overview of the various Talmudic approaches to risk-taking, I am trying to organize the material in a chart. This DRAFT chart of Talmudic risks takes into account the type of halakhic norm (e.g., prohibition or advice), the subject’s response to the risk (e.g., prevent or take risks), and the risk characterization (level of danger + probability of harm). The chart shows the breadth of risks and range of rabbinic approaches; it also calls attention to the difficulty in formulating a consistent theory of risk-taking for Jewish law.

I would appreciate getting feedback on this work in progress, but it may contain errors so please read it at your own risk.

Good shabbos,

Kaspit

[1] Moshe Koppel analyzes two types of Talmudic reasoning about uncertainty: (1) When the rabbis can count up the possibilities in an uncertain situation, they calculate the odds. The halakhah is then decided with the majority (rov - RDIK). (2) When an uncertainty cannot be counted, I think that the sages reason from ballpark estimates. They then devise an ad hoc probabilistic rule to decide with the majority (rov - RDLK).

“Considering how dangerous everything is, nothing is really very frightening.” (Gertrude Stein)

Sources: [JD Bleich, M Slae, D. Cohen, M Koppel, N Rabinovitch, forthcoming...]

More talmudic health care

Health care has come up a number of times in the last few weeks of daf yomi Talmudic readings. For instance, at Shab 123a the sages discuss the needle used to remove splinters, the use of emetics, and the (proto-chiropractic?) readjustment of the dislocated limbs of a newborn. There is also a fascinating conversation about about the measures that may be taken, regardless of Sabbath prohibition, to take care of a women before, during and well after labor, e.g. lighting a lamp for a blind woman (128b-129a). (Plus, the halakhah that the umbilical may be not only tied but also cut on shabbat.) Here Mereimar teaches the principle that rabbinic laws "are interpreted leniently for an uncertainty involving life" (safeq nefashot le-heqel).

Having read so much about folk medicines in tractate Shabbat, I looked at Jewish Magic and Superstition by Joshua Trachtenberg (1939!), still a fount of information and highly readable. In the long chapter on medicine, he digests supernatural etiologies of disease, bloodletting, psychic treatments, homeopathy, charms, incantations, magic names, use of Torah verses and scrolls, gross potions, misc. healing devices, name change, and herbs. this passage caught my eye:

[Medieval] Northern Europe, walled off from the enlightenment that radiated from the Arab lands, produced not a single Jewish physician of note. Jewish practitioners of medicine there were aplenty, but their science was little more than a faint reflection of the learning of their southern co-religionists. … It is unfair to suggest… that Jewish medical superstition is to be regarded mainly as an imitation of the Christian. … the rationale of superstition and magic in medicine was part and parcel of the Jewish cultural heritage.” (194)

It's hard for some of us to admit the degree of medical and other superstition within Judaism, but that's one kind of knowledge they had available. And it's nice to remember the level of Ashkenaz during the golden age of Sefarad...

Stay well,

Kaspit