Tuesday, November 30, 2010

A Different Halachic Approach

Please forgive me if I delay a few days between posts.  Sometimes my work keeps me bogged down and makes it difficult for me to keep up with the blog every day.

The basis and foundation of my approach to treating a goy on shabbos is the famous shita of the Meiri.  Many of you are probably familiar with the Meiri's opinions as they relate to the halachic status of non-Jews. However, you may not be aware of the full extent of his opinions, and the extent to which many later authorities have subscribed to his opinions.  When i learned the Meiri in yeshiva, I was under the impression that his words were just apologetics that were meant to calm relations with the goyim, but that in reality they were not halachically important and that they were not meant to be taken seriously.

However, while I searched for answers to the problems that were bothering me, I not only found out that the Meiri's opinions were not apologetics at all, but I discovered that they are a comprehensive and complete philosophy of how to learn the sugyos relating to the treatment of goyim in halacha.  I also learned that many Acharonim, and even some rishonim also ascribed to his views.  I also learned that many recent halachic authorities actually wrote that the Meiri's derech should be considered Halachah Le'maaseh, even though his opinion may have been a minority opinion at the time that he wrote them.

So I beg you to be patient and let me present my case, which will probably take a few posts.  Especially if you have preconceived ideas about the Meiri, please hold back from comment until you hear everything I have to say. Then all bets are off and say as you wish.

First, let me describe what the Meiri held.  According to the Meiri, the contemporary gentiles of his day (basically Muslims and Christians) are all considered "Baalei haDat" - people of religion.  The Meiri considered these Baalei haDat to be different from the non-Jews referred to in most of Chazal - who were idol worshippers that had no religion (at least not what Chazal would have considered a religion).

The Meiri divides the laws that concern our dealings with gentiles into three basic categories.  The first category regards the laws of business interaction with non-Jews.  This refers mostly to things that are prohibited due to fear that the gentile would use the profits for idol worship.  This category the Meiri held did not apply at all to his contemporary gentiles.  The second category deals with all halachic distinctions between Jews and non-Jews. This includes the obligation to save a non-Jewish life (including on Shabbat), the obligation to return his lost object, the death penalty for killing a human being (which the Meiri held applied to non-Jews as well) to give him charity and many more such laws.  In this category, the Meiri held that his contemporary gentiles were equal to Jews on all levels.  The third category deals with halachot meant to keep Jews from intermingling (and intermarrying) with gentiles.  This includes things like a Gentile's wine, milk, bread and so on.  In these halachot, the Meiri did not distinguish between his contemporary gentiles,and from the time of the gemara.

Lest one believe that the Meiri was simply apologetics, I challenge you to learn through the Meiri and consider that his comments are consistent throughout his commentary on Shas.  Repeatedly his points are emphasized and reiterated, and he clearly developed his shita thoroughly and comprehensively. I will be bringing many sources as we progress through this blog, but let me start with HaRav Eliezer Waldenberg ZT'l (author of the Tzitz Eliezer) who writes in a letter published in "Bein Yisrael le-Ammim" p16-17 that it is implausible to argue that his entire approach to shas was simply constructed out of fear of the censors.  He also states that we should use the Meiri as a "Makor Beit Av" (roughly translated as - "a conceptual building block" - my admittedly poor translation) when considering questions for dealing with gentiles in our times.

To assume that it was simply fear of the censors that drove the Meiri to formulate his extensive theories will become less and less plausible as we continue our discussion.

I owe much of my understanding of the Meiri to a great book called "Bein Torah leChochmah" by Moshe Halbertal.  It is worthwhile reading for anyone interested in learning more about the Meiri.

Probably the most interesting thing I learned from Halbertal's study is how he derives the reasoning behind the Meiri.  It is clear from his study that the Meiri that he felt that anyone who did not have a "Dat" was certainly someone who would not be bound by basic morality and justice. Halbertal proves that according to the Meiri, a society of Ba'alei Dat is a society of morals and justice, whereas a society without "Darchei HaDat" is one that is evil and corrupt.  This is a very important point, and it is one that we will come back to later in this blog discussion. Any society that is moral and just according to the Meiri would have the same status as Jews regarding these types of laws.

For example, the Meiri goes as far as saying that those that are "gedurim beDarchei Hadat would be  considered "Am She'Itcha BeTorah uveMitzvot".  (see Bava Metziah 59a where the gemara learns that one is only obligated to retuirn the lost object of someone included in the pasukl, lo Tonu Ish et Amito - Am  She'Itcha B'Torah UVe'Mitzvot, which the Meiri learns explicitly includes non-Jews, as opposed to learning that it is excluding them!)

There is much to write about the Meiri,and I promise I will write more, but I first want to deal with an important issue.  Is the Meiri simply a lone voice in the wilderness?  Can we rely on a lone opinion in formulating halacha

Comment as you wish, but I beg you to hang in there, because there is a lot more to say.

Saturday, November 27, 2010

Does it really matter why you can treat a gentile on shabbos?

In our last post we reviewed the halachos of treating a goy on shabbos.  Now let me change gears a little bit and talk about my experience in the "real world".  If you recall my first post on this topic, I discussed the moral dilemma that I have encountered since I have become a physician.  Let me now describe this dilemma.

I have the very special privilege of spending my entire professional life taking care of people.  I am very fortunate to be able to use my skills healing and helping people every day.  I believe in the depths of my heart that what I do every day is the work of the Ribbono Shel Olam. 

I have always made a special effort to make sure that as much as possible I spend shabbos where I belong, at home with my family, in shul and in my community.  Most of the time, I am able to spend shabbos without having to see patients as a physican. However, the nature of my occupation is such that I am sometimes called upon to treat people on shabbos.  I know the basic parameters of what is muttar and what is assur, although I am sure there is still a lot for me to learn.  I am not at all perfect, but I think I would be telling the truth if I said that I do the best I can.

It really matters to me that not only am I doing what is halachically permissible, but that I am doing the right thing.  It is very challenging and difficult to spend long and stressful hours with complicated issues, especially when I would rather be home enjoying a good cholent.  However, I still do it in the belief that I am needed, that it is important, and if halacha permits it, it must be what the Ribbono Shel Olam wants from me.  More so, when I look my patients in the eye, when I see their appreciation for what I am doing for them, I get validation that this is indeed the right thing.

Many Orthodox Jews might argue that it might not be the right thing to choose a professional situation which  forces one to need to work on shabbos.  This is a legitimate issue, which I will try to deal with at another time.  For now, please allow me to assume that in some circumstances it is inevitable that a God fearing Orthodox Jewish doctor will end up treating patients on Shabbos.

Now let us contrast two hypothetical patients in pain, a Jewish one, and a non-Jew.  It is shabbos afternoon, and i am called to the hospital to take care of both.  I have to drive to the hospital, which is painful to begin with, but i tell myself ... "It is a mitzvah to save a life. You can drive now." 

I see the patients in their beds. At the Jew's bedside, I think to myself ... "It is a mitzvah to take care of this person.  I can transgress the Shabbos because his/her life is more important than Shabbos. After all, doesn't the Torah say ... vechai bahem?" At the non-Jews bedside I think to myself ... "Well if i don't save his life, what would the goyim think!? The nurses will think I am immoral .. you helped the Jew but not him!! Imagine what they would write about me in the newspapers tomorrow!! I guess I have to treat him to!"

The following thoughts, in one version or other then flows through my soul. Dear Ribbono Shel Olam, I cannot act this way to a fellow human being. I cannot watch a person suffering and think that I am only helping him because of some vague sort of fear of reprisal.  This is not the Torah I accepted at Sinai.  I accepted a Torah that was Deracheha Darchei Noam.  I will help this gentile because I am a compassionate human being and because i know that it is the right thing to do.  Please God, show me a better way. Show me the right thing.  Help me learn the halachos once again so that i might learn Your true intent. It cannot possibly be that I am only alowed to do this as some sort of b'dieved.

So to answer my question, does it really matter why you can treat a goy on shabbos? Absolutely! Of course it matters. It certainly matters to me!

If you are thinking something like the following, "who cares why you are allowed, the bottom line is the halacha. The halacha says it is OK, why do you care what the reason is!"  If this is good enough for you, then I am not writing this blog for you.  You do not need what I have to offer, so don't even bother reading it.  But if you understand me and it does bother you as well, then please listen further.

So hang in there dear blog followers, in my next post, I will start to show you another halachic way. One that is founded on great Halachists of previous centuries, one that is firmly grounded in the Torah that we accepted at Sinai, but one that sounds very different from what you may read in most contemporary "halacha guidebooks".  It will be a Torah way that I can live with and live by, and I hope that you will agree.

If I sound tantalizing and the suspense is building, that is my intent. I hope that it entices you to hang in there for the ride to come.

Friday, November 26, 2010

The Halachic Background of Treating a Goy on Shabbos

We need to start with a review of the basic halachos of treating a non-Jew on shabbos.  At this point, our assumption will be that anyone who is not Jewish would be considered a non-Jew for halachic purposes.  While this may sound obvious at this point, you will soon see that it is not obvious at all.  Today we will summarize the sugyah, and delineate the basic halachic opinions regarding the matter of treating a non-Jew on shabbos.

First,  let us begin with the primary sources. The most important is the gemara in Avodah Zara 26a, "Rav Yosef thought to say that for a Jew (midwife) to deliver an idol worshipers baby on shabbos for pay should be permitted due to eyvah (a fear of causing hatred among non Jews towards Jews) Abaye responded, She can say to her, for us that keep shabbos we can desecrate shabbos, but for you who do not keep shabbos we do not desecrate shabbos".

There are several issues which the poskim try to clarify from this gemara, and for the sake of clarity, let me summarize the issues.

1) It seems that the maskanah of the gemara is that one is NOT allowed to treat gentiles on shabbos because of Abaye's statement that there is no Eyvah.  If one were to argue that in modern times this "explanation" of Abaye won't work anymore, does Rav Yosef's heter of Eyvah still apply?

2) If Rav Yosef's heter of Eyvah applies nowadays, on what severity of issur does it apply? There are three possibilities.

a) It could be that Eyvah cannot supersede ANY prohibition, not even a rabbinic decree.  If this is true, then Rav Yosef only meant that Eyvah allows one to treat a gentile at all.  This would be because the gemara elsewhere prohibits a Jew from treating a gentile who worships avodah zarah.  If this is true, rav yosef's heter was only meant to permit transgressing this specific decree.

b) Alternatively, it could be that Eyvah is only meant to permit transgressing Issurei Derabbanan, but not issurim of Torah origin

c) Or maybe Eyvah can even allow transgressing an issur de'oraysah.

As you can imagine, there is a lot of literature on this subject, but allow me to review the basics.

1) The Ritva and the Ran on that gemara take the position that Eyvah cannot even allow an issur derabbanan.  The Bais Yosef brings a famous argument between the Ramban and Rashba vs. Rabbeinu Yonah regarding the permissibility of giving infertility treatments to a gentile.  The Ramban and Rashba allowed it due to Eyvah, whereas the rabbeinu Yonah was famously very critical.  It would seem that the argument revolved around the heter of Eyvah for treating a goy, but none of these authorities approved of using this heter even for issurei derabbanan.

2) Tosfos on that gemara explicitly allows the heter of eyvah for issurei derabbanan but not for issurei de'oraysah.  Many acharonim seem to take up this position including the Tosfos Shabbos, and the Chassam Sofer.

3) No posek seriously entertains the possibility that eyvah would allow transgressing an issur de'Oraysah.  However,  several poskim, including the Maharik, and the Tiferes Yisrael cleverly use the heter of Eyvah to allow transgressing an Issur Deoraysah through an interesting "halachic trick".  They use the following argument.  Since the Jew is only doing the issur de'Oraysah because he is afraid of causing hatred (eyvah)  that makes the melachah that he is doing an melacha she'aynah tz'richa l'gufa (work that is done for a purpose OTHER than accomplishing the work itself) . Therefore it is not really an issur deOraysah, and can be done mishum eyvah.

As we come to more modern times, there are several Poskim that must be mentioned.  The Chassam Sofer (YD Siman 131) has a classic teshuva where he allows transgressing an issur deoraysah to take care of a non-Jew when there is reason to be concerned that the Jew's life would be in danger if he does not treat the Goy.  This is kind of like what I sometimes call "Super-Eyvah".  The Divrei Chaim of Tzanz (OC Chelek 2 Siman 25) writes, "It is the custom of (Jewish) doctors to transgress Isurei De'Oraysah on shabbos..and I heard that it was a decree of the Council of Four Lands that allowed them to do this." The obvious question is, how could the Council decide to allow an issur deroysah by decree? The answers given to this problem include the clever explanation of the Maharik, or the explanation of the Chassam Sofer of "super-eyvah".

We can't leave this part of the discussion without mentioning the Mishna Berura (Siman 120 Seif Katan 8), who sharply criticizes Jewish doctors who transgress Issurim De'oraysah while taking care of non-Jews on Shabbos.  He writes "They are completely intentional transgressors of the sabbath (mechallelei Shabbos gemurim hem b'mazid) May God protect us!"  So many times, a yeshiva bachur who learns the Mishna Berura and thinks he knows everything has come to me with this accusation, "haven't you seen the mishna berura! How could you...." Whatever. Tell them to go back to yeshiva and learn the sugyah properly.

To finalize this post.  Virtually all important modern poskim agree (Rav Moshe Feinstein ZTL, Rav SZ Aurbach ZTL, Rav Waldenberg ZTL, Rav O Yossef Shlita and numerous others) that when push comes to shove, a Jewish physician can violate even an issur de'Oraysah to save a non-Jewish life.  They come to this conclusion using some combination of the Chassam Sofer, Maharik, and Divrei Chaim.  Each posek has his own stipulations etc... but the bottom line is about the same.  Their advice is, try not to be there on shabbos, but if you're the only one available, do what needs to be done.

Now that we've made this clear, we can go on with our discussion in my next post. there I will tackle the following question, "If you can treat a gentile on shabbos anyway, does it really matter why you are allowed?"

Thursday, November 25, 2010

Treating a Gentile on Shabbos

I am really sorry that I have not posted in the last few weeks, but I want the readers of the blog to know that I have been working hard on this next topic.  This is a subject that has been bothering me for quite some time.  Let me share with you my personal history of my quest for an understanding of the halachos of treating non-Jews on shabbos.  I am sharing this with you only because I believe that it will help you appreciate the full force of my arguments that I intend to put forth.

As a yeshiva graduate, newly armed with semicha and a few years of kollel behind me, I decided to go to medical school.  I knew that treating patients on shabbos was going to be an important halachic issue so I made it my business to study the topic thoroughly so I would be ready to handle whatever situations I would encounter.

So I started by reading some articles and teshuvos, mostly in the Tzitz Eliezer and Igros Moshe to familiarize myself with some of the basics.  I threw in a little bit of Nishmas Avrohom, Shemiras Shabbos Kehilchasah, and other seforim, and reviewed a few contemporary halacha books that were available then.  This was the beginning.  I also had some long conversations with some contemporary poskim, who shall remain nameless only because I don't want it to sound like I am claiming that any of them would endorse my ideas that I will be expressing in this blog.

In my final year of medical school I had the opportunity to take off a few months to do some "electives", so i chose to learn in kollel (under the guise of studying "Jewish medical ethics") for a few months to study the relevant sugyos in shas, the rishonim, acharonim, and ultimately the shulchan aruch and acharonei haposkim on the topic of treating gentiles on shabbos.  So I thought that I at least had a handle on the relevant issues, i had poskim to call if I needed help, and I was ready to go.

However, I wasn't really prepared at all for what eventually became the real issue for me.  Stepping out into the "real world" forced me to think seriously about what moral and ethical messages the Torah had to teach me, my colleagues, my patients and indeed the entire world about what it means to be responsible to take care of people's lives.

There is SO much in the Torah to draw strength from, and starting with Verapo yerapey, veahavta lereiachah kamocha and on down, there was so much in the Torah for me to draw strength from and teach others. But I kept on hitting a big bump, nay, a big brick wall.  Everywhere I turned, I hit a brick wall.  what I believed in my heart, and what I learned in shulchan aruch kept on crashing into each other like a game of chicken where both contestants "win".

In my heart I knew that treating and saving a human life is the highest calling.  In my heart I knew that Hashem wants me to do everything I can to take care of all human beings with equal compassion, equal concern, and treat everyone appropriately no matter who they may be.  I knew it in my bones, I knew it in my heart.  So why then does halacha distinguish between caring for a Jew and a non-Jew on Shabbos?

The more I spent my life caring for others, doing what i know Hashem wants from me, the less I was able to reconcile these two seemingly contradictory lessons that the Torah was teaching me.

Let me now be really honest.  I have went through many stages before I came to the conclusions that i will be arguing in this series of blog posts.

Stage One) Not willing to God forbid throw out the Torah, I first thought that maybe my priorities were messed up.  If the Torah teaches me something, then my set of values must be wrong!  Maybe I am just absorbing foreign non_Torah values, and I need to learn the Torah-true values and accept them as the word of God.  But I couldn't accept it.  Sure, on many levels I know that we cannot accept every whim of modern society as a proper value system.  Things like premarital sex, abortion on demand, and other issues shouldn't become acceptable to me just because modern society says so!  But  this issue was different.  Something deep down inside of me told me that this value system was right.  God would not want me to treat a goy or jew differently on shabbos.

Stage two) So maybe the Torah is wrong?  Maybe i should get with the program and join the modern world!  As scary as this thought was to me, I would be dishonest if I claimed that such thoughts never entered my mind.  If God were to ask me why I rejected the Torah, my answer would be, because I believed that all of your children were created equal!  If I burn in hell for that conviction, then go ahead and let me burn!  As such thoughts percolated in my head, I was disgusted.  It can't possibly be that the Torah really believes this way! It is too beautiful, too wonderful, too peaceful, too loving, and I just KNOW that what Hashem wants from me is to treat everyone with the same respect.

Stage three)  So I spoke with people to whom I could trust my inner thoughts, and I studied numerous seforim which entertained these types of doubts.  I turned to thinkers that I knew had grappled with these issues honestly, and remained faithful to the Torah.  Thinkers like the Rambam in the sefer Moreh Nevuchim.  Thinkers like Rav Kook and Rav SR Hirsch.   Poskim like the Seridei Aish. I spoke with people who dealt with these issues openly and honestly, and eventually I realized that with study, discussion, honesty, and openness, the true beauty of the Torah will always shine forth.

Armed with this new approach, I learned something both wonderful and scary.  I learned that what shines forth from the Torah may be something new and refreshing to me, but others often seem to find it difficult to accept.  The famous "Slifkin Affair" was a watershed event for me.  That is because R' Slifkin was a person who also was grappling with the same difficulties that I was, and he seemed to find a path that both satisfied his rationalistic personality , and remained faithful to the Torah.  His area may have been  zoology, the age of the universe and so on, while my area was medical halacha, but the issues were the same to me.  When he got "shot down" by the chareidi establishment, I was "shot down" as well.

I have made it clear in this blog that I have set out to revisit the entire field of medical halacha in a rationalist way, and I have determined to do this unapologetically, and rely on the research that I have conducted.  I will do this because I am a frum Jew, and i will always love the Torah.  For the sake of God, for the sake of my children, and for the sake of every Jew and every human being who uses his or her own head when they think about these issues, I will offer a way to deal with these very difficult subjects.  I would love to hear your thoughts in the comments.

In the upcoming posts i will attack the following fundamental question. Despite the fact that all contemporary poskim DO allow chillul shabbos to save ANY life, we know that this is generally considered a heter due to fear of reprisal, mishum ayvah or some other heter. If the halacha is an ethical guide to life in addition to just being a book of rules, how could it be that the fundamental principles that underlie the halacha are so contrary to what most of us would consider to be basic ethics? How could it be that the halacha only allows chillul shabbos to save the life of  a Jew but not a gentile?  Does this not run counter to our basic ethical instincts?

If you are not bothered by this ethical problem, then you probably should not be reading this blog.  If it doesn't bother you, then our perspectives are so different from each other, that further dialogue will probably not be very productive.  However, if this problem bothers you, then please read it, listen, and tell me what you think.