Parshat Mishpatim – פרשת משפטים

Parshat Mishpatim – פרשת משפטים
THOUGHTS ON THE PARASHAH Rabbi Evan Hoffman – Congregation Anshe Sholom evanhoffman@gmail.com Parshat Mishpatim – פרשת משפטים February 25, 2017- כ"ט שבט תשע"ז   The Legitimacy of Health Care   Scripture mandates that an assailant pay for the “idleness and cure” of his victim (Exodus 21:19).  The injured party is indemnified for potential wages lost during the period of convalescence and for any medical expenses directly attributable to the injury sustained in the assault.  The academy of Rabbi Ishmael derived from the phrase ורפא ירפא that a physician is permitted to ply his trade (Baba Kama 85a).  Logic dictates that if the Torah allows the plaintiff in a civil suit to collect from the defendant for plaintiff’s medical bills, it must be that a physician and patient, respectively, are permitted to provide and consume health care.  The later books of the Bible confirm that it was customary in ancient Israel to consult physicians.  The prophet lamented, “Is there no balm in Gilead?  Can no physician be found?  Why has healing not yet come to my poor people (Jeremiah 8:22)?”   Why was it necessary for the academy of Rabbi Ishmael to seek exegetical proof for the seemingly obvious point that dispensing and receiving medical treatment are permissible?  We do not seek proofs for the permissibility of breathing, eating, drinking, etc.  It is taken for granted that basic functions necessary to sustain human life are not only permitted but are, indeed, obligatory.  It follows that the intellectual exercise at Rabbi Ishmael’s academy must be understood as combating an alternative theologically fundamentalist viewpoint extant at that time.   The clearest expression of the contra-Ishmaelian viewpoint regarding medical treatment is the suggested prayer composed by Rav Acha for someone undergoing a bloodletting procedure. “May it be Your will, Lord my God, that this therapy should serve me as a remedy, and that You should heal me, for You are God the faithful Healer, and it is Your remedy that is genuine, for it is not the place of people to seek medical treatment, but so they have accustomed themselves (Berakhot 60a).”  Rashi explained that, in Rav Acha’s view, people suffering from ill health should beseech God for mercy rather than seek professional medical help.  God alone brings illness; God alone heals.  The efforts of the physicians are regarded as heretical attempts to undermine the decree of the Heavenly King – especially if the illness was Heaven-sent and not the result of a bloody clash between two people (Tosfot).  From this perspective, resorting to physicians for treatment is a barely tolerated concession to the pervasive low level of religious belief.   This absolutist position is not devoid of Scriptural support.  After the splitting of the Sea of Reeds, God vouchsafed: “If you heed the Lord your God diligently, doing what is upright in His sight, giving ear to His commandments, and keeping all His laws, then I will not bring upon you any of the diseases that I brought upon the Egyptians, for I am the Lord your Healer (Exodus 15:26).”  In a prophecy of consolation, God promised, “I am going to bring her relief and healing (Jeremiah 33:6).”  The notion of God as healer operating without the assistance of human intermediaries is manifest in two episodes involving Davidic monarchs.  When Hezekiah became ill, Isaiah came to him with the grim news that God had decreed death for him; there was no hope of recovery (II Kings 20:1).  Hezekiah prayed, seeking relief in the merits of his righteousness.  In response, God rescinded the harsh decree and granted Hezekiah fifteen more years of life.  In contrast: “In the thirty-ninth year of his reign, Asa suffered from an acute foot ailment.  But ill as he was, he still did not turn to the Lord but to physicians (II Chronicles 16:12).”  Scripture abruptly reports, “Asa slept with his fathers (16:13).”  The clear implication of the language of Chronicles and the juxtaposition of verses is that Asa’s failure to beseech God cost him his life.  Resorting to physicians who are unaided by God is inefficacious.   The Mishnah states that the best physicians are destined for hell (Mishnah Kiddushin 4:14).  This text is not necessarily reflective of the fundamentalist position that regards physicians as usurping God’s authority to determine who will live and who will die (which judgment readers will recognize as the key theme of U’netaneh Tokef in the Rosh Hashanah and Yom Kippur liturgies).  The commentators offered non-theological explanations for the gloomy afterlife predicted for physicians:  They make fatal mistakes (Ramban).  They refuse to consult with colleagues on the arrogant and unwarranted assumption that they know best (Maharsha).  They pretend to know the relevant remedy even in cases where they do not, and they kill patients for whom they have given up hope of finding a cure (Meiri).  They refuse to see poor patients who cannot afford to pay their fees (Rashi).  Yet Rashi also suggests that physicians are damned because they refuse to recognize God’s absolute and ultimate authority over matters of human health.  Such hubris can lead even religiously observant patients to place their trust entirely (or principally) in the hands of the self-assured physician, while slighting their devotion to prayer.   Ramban wrote favorably of the fundamentalist position, though he noted that it should be urged only during a generation of great righteousness (Torat Ha-Adam Inyan Ha-Sakanah).  In ordinary times, when very high standards of piety and Divine providence do not prevail, people should not be dissuaded on religious grounds from seeking medical help.  The rabbinic consensus, therefore, favors the Ishmaelian position.  Abaye refuted Rav Acha and rejected his bloodletting supplication by citing without qualification Rabbi Ishmael’s interpretation of Exodus 21:19.   In his magnum opus, Torah Min Ha-Shamayim, Abraham Joshua Heschel understood the rabbinic debate about health care in the broader context of the theological rift between the schools of Rabbis Akiba and Ishmael.  Akiba was the uncompromising fundamentalist; Ishmael was the sober realist.   We read twice daily in the second paragraph of Shema: “I will grant the rain for your land in season, the early and late rains.  You shall gather in your grain, wine, and oil (Deuteronomy 11:14).”  Ishmael cited the verse in justifying the practice of earning a living.  “Behave in the ways of the world (Berakhot 35b).”  He interpreted the Scriptural demand that one “choose life (Deuteronomy 30:19)” as a mandate for pursuing a remunerative occupation (Yerushalmi Kiddushin 61a).  Like his interpretation of Exodus 21:19, these exegetical derivations seem to be stating the obvious.  Of course one can work for a living!  The rulings are necessary only to counter an extremist position.   The fundamentalist school was dismissive of mundane work, insisting upon constant and uninterrupted Torah study.  Rabbi Simon bar Yochai, a disciple of Akiba, was the foremost exponent of that extreme position.  He asserted that others will attend to all our mundane needs so long as Israel studies Torah and fulfills the will of God.  Nehuniah ben Ha-Kanah similarly opined that he who takes upon himself the yoke of Torah has the burdens of earning a livelihood and paying taxes lifted from him (Avot 3:5).  The rabbinic consensus is not in accord with Rabbi Simon’s assertions.  The Talmud reports that many followed Ishmael’s advice of mixing Torah study and gainful employment and were successful.  Others tried to follow the extreme Torah-only view of Simon and were unsuccessful.  In the legend concerning Simon’s twelve-year stay in the cave while hiding from the Romans, the Talmud reports that Simon and his son were sent back to the cave for their hostile view of agriculture and the essential ways of the world (Shabbat 33b).   In his preface to the chapter entitled “Torah and Life” in Heavenly Torah, the English translation of Heschel’s book, Rabbi Gordon Tucker described the differences between the two schools this way:  “Is the Torah the sole imperative and life only a means to fulfilling its peremptory demands?  Or did God imbue the world with value as well?  Did God establish another realm, less sacred but still valuable, with its own autonomous rules -- the realm of derekh eretz, of material livelihood, of common etiquette, and sensual enjoyment – which also makes demands on us?  If the claims of Torah are exclusive and absolute, then all the Akivan conclusions follow.  On the other hand, if the value of the world is granted, the claims of derekh eretz must also be weighed: survival, where justifiable, is preferable to martyrdom; study and livelihood should be balanced; the pleasures of life are legitimate and fulfill part of the purpose of creation.”   The school of Ishmael insists that Judaism allows and wants Jews to behave like normal human beings.  Jews should not suffer from curable maladies because of a supposed religious objection to modern science and human healing.  (It is the case that certain Christian sects adhere to an Achan view, and often resort is had to the courts to compel medical treatment for children whose parents forbid it on that fundamentalist basis.) Jews should not suffer in abject poverty because of a supposed religious objection to gainful employment or to the educational attainments necessary for employment in the contemporary labor market.  Yet, it is the case, in Israel and in the diaspora, that some of our co-religionists refuse to embrace these points.  For that refusal they pay a painful price.