The shoteh portrayed as such is best understood today as manifesting symptoms typical of the insane, or what in clinical terms is known as the psychotic individual. Psychosis in this sense may be heuristically defined as the state in which an individual lacks the ability to distinguish fantasy from reality. The concept has also become clinically synonymous with an associated severe impairment of social and personal functioning characterized by an inability to perform expected roles.3 With gross impairment of reality testing and insight, the psychotic individual incorrectly evaluates perceptions and thoughts and, in so doing, makes incorrect inferences about external reality despite evidence to the contrary.
Having described the shoteh in this manner, it is clearly evident that the shoteh is one who is expected to struggle to meet societal expectations of functioning and who would demonstrate impaired ability to cope with the usual frustrations and routine challenges of life. Halakhic norms and values demonstrate acute sensitivity to the nature of the shoteh, thereby displaying exquisite sensibility and preparedness to the range of human experience and occurrence, in this domain as in all others. This sensitivity manifests not merely toward the shoteh himself - thus protecting his rights, status, and standing in the community - but also the rights of the community itself, which may find itself at times compromised by psychotics' irrational acts.
How precisely are these factors played out within the rubric of halakha? What are the ways in which the shoteh is shielded from excessive unrealistic expectations extended to sane individuals? We will elaborate briefly on some of these issues, fully aware that a concise discussion cannot do the subject adequate justice.
Categories defined by Hazal include the following:
This categorization is important since it determines various obligations expected of and permitted to the shoteh and designates potentially sanctioned roles.
The shoteh is also exempt from certain forms of punishment.11 The Mekhilta even extends this to exemption from responsibility for murder, under certain conditions.12 The Talmud details particular examples of mitsvot from which he is exempted, including the reading of Megillat Ester13 and re'iya (pilgrimage on shalosh regalim).14 Furthermore, the shoteh is exempt from certain obligations of participation in communal activities, such as zimmun.15
Interestingly, it should be noted that while a shoteh is exempt from mitsvot when he is psychotic, once he remits from this state he again becomes obligated. For example, as stated by Rambam and more recently by Rabbi Moshe Feinstein, a shoteh in remission is obligated to eat matsa for a second time had he eaten the first amount in a psychotic condition, a state in which he is patur (exempt) from the mitsva. Once he is no longer in a psychotic state and is able to understand, he is hayyav be-mitsvot (obligated) and he must repeat the act even if he had performed it while psychotic.16
While it may be argued that the shoteh's exemption from the obligation of mitsvot contains an element of discrimination, one can also view this halakhic paradigm as demonstrating acute sensitivity. The functionally impaired shoteh is not unnecessarily burdened by obligations that in essence either add a further stress to an already challenged psychological state of mind, potentially exacerbating the clinical picture, or impede recovery from a current disabling psychotic illness.
If a shoteh finds an object, it would be considered stolen rather than lost property.20 This is because the shoteh lacks comprehension of what truly belongs to him and, consequently, there is a real possibility of his acquiring an object that does not actually belong to him. This halakha thus aids in safeguarding the property of others.
It is interesting to note that when the shoteh is psychotic and incompetent to manage his affairs, the beit din is permitted to take from his property in order to support his wife and children (even including the purchase of jewelry for his wife).21 The beit din's unilateral action appears to be sanctioned by the assumption that the psychotic individual would surely want to support his wife and children. Essentially, the beit din is asserting that the shoteh has a responsibility to his dependents despite his ill state, and interjects itself into the process of carrying out this charge.
In a similar vein, there is an opinion that the beit din is permitted to make a contribution to tsedaqa from the shoteh's property in his name, and he merits the reward of the mitsva even without his knowledge. The underlying assumption here is that had the shoteh been sane, he surely would have done the same.22 Hatam Sofer also discusses the matter of the shoteh and tsedaqa, stating that the meritorious act - even if done by others for his benefit - will "protect" him, despite his exemption from the mitsva of tsedaqa.23
The halakha becomes more complex in reference to yibbum (levirate marriage) and halitsa. A shoteh is considered able to act as a meyabbem and, accordingly, to enter a levirate marriage. However, he is considered unable to perform halitsa since he does not possess adequate understanding (mi-shum de-lav benei da'at ninhu) and, therefore, cannot release his deceased brother's wife from yibbum.41 According to Tosafot, the inability of the shoteh to perform halitsa is due to his lack of the intellectual faculties needed to make sense of all the regulations inherent in the process.42 Rambam gives as a reason for this prohibition that the shoteh lacks the intelligence to read and to comprehend.43 That the shoteh may perform yibbum but cannot marry is not related to any intrinsic ability to perform the act of yibbum, but rather from the fact that the woman was married to his sane brother. Similarly, the sane wife of a shoteh is not liable to yibbum or halitsa since their marriage had no legal standing in the first place (mi-pnei she-ein lahem ishut kelal).44 The subject of marriage occupies most of the responsa relating to the shoteh, so a brief report on the topic clearly cannot do it justice.
Rambam clearly explains that this is a protective measure shielding her from abuse since she is unable to protect herself. The interests of the sane husband, however, are also protected in that he may be permitted to remarry with the provision of a heter me'a rabbanim (approval of one hundred rabbis). He is nonetheless still obligated to provide her with food and drink from her own means, but not with she'er, kesut, and ona (food, clothing, and conjugal union) as one cannot expect a ben da'at (sane person) to live in the house of shotim. Furthermore, Rambam is of the opinion that he is not expected to provide medical treatment or redeem her if she is kidnapped.46 Tur and Raavad, however, assert that he is obliged to provide medical treatment, but Raavad states that this would be required only if a potential treatment was available.47
Another example of sensitivity toward the psychotic female can be noted in the opinion of Seridei Eish, which maintains that one can be lenient and allow sterilization of a shota out of significant concern for her welfare and potential exploitation.48
Over the past few decades, the field of psychiatry has made great progress. These across-the-board advances have contributed significantly not only to the understanding of the brain both in its normal and aberrant functioning but, most importantly, to the successful treatment and relief of many mental disorders, including some of the most severe and previously treatment-resistant psychotic illnesses. It is imperative to communicate this progress with the Torah community and to consider its relevance to the appropriate application of Talmudic and halakhic concepts. The assumption as expressed in the Talmud, "shoteh lo samei be-yadan" (essentially, "once insane, always insane," since we have no cure)53 may no longer necessarily apply in light of current clinical practice.
From the example of the spirit of halakha, it behooves us at all times to maintain sensitivity to the shoteh. The Talmud in Berakhot cites Rava's instruction that the ultimate purpose of Torah wisdom encompasses beneficence toward others.54 Not only will the shoteh benefit from this, but extending sensitivity and discretion toward those less fortunate, and afflicted by disabling illness, is in and of itself fulfilling.
1. Tosefta, Terumot 3:1.
2. Hagiga 4a.
3. Harold I. Kaplan, Benjamin J. Sadock, Jack A. Grebb, Synopsis of Psychiatry, Behavioral Sciences, Clinical Psychiatry, 7th ed. (Baltimore, Md.: 1994).
4. Rambam, Hilkhot Eidut 9:9-10.
5. Rama, Even ha-Ezer 44; Ahi'ezer, Even ha-Ezer 1:10.
6. Ketubbot 20a; Yevamot 113b; Nedarim 36a; Gittin 5a, 23a; Rosh ha-Shana 28a; Palestinian Talmud, Ketubbot 1:25b; Palestinian Talmud, Gittin 2:44a. Note that the Yerushalmi appears to differentiate between halim (incomplete remission) and shapui (full remission) (see responsa Rashba 4:201). See also Rambam, Mekhira 29:5
7. For more in-depth analysis, see the discussion of the Get of Clevs in Or ha-Yashar and Or ha-Yesharim.
8. For example, Yevamot 99b; Menahot 93a; Hullin 13a; Erkhin 2a, 5b; Rashi, Hagiga 2a.
9. Hagiga 2b.
10. Peri Megadim, introduction to pt. 2, 2.
11. Rashi, Hagiga 3b, s.v. eizehu shoteh.
12. Mekhilta, Mishpatim 4.
13. Megilla 19b.
14. Hagiga 2a.
15. Mishna Berura 199:29.
16. Rambam, Hilkhot Hamets u-Matsa 6:3; Iggerot Moshe, Even ha-Ezer 2:18.
17. Bava Qama 87a.
18. For example, Bava Qama 39a, 42a; Palestinian Talmud, Bava Qama 5:5a.
19. Shabbat 153b.
20. Gittin 59b, 61a.
21. Ketubbot 48a; Rambam, Hilkhot Ishut 13:7; Shulhan Arukh, Even ha-Ezer 70:6.
22. Rambam, Hilkhot Nahalot 11:11; see also Kesef Mishna.
23. Hatam Sofer, Orah Hayyim 2.
24. Rambam, Hilkhot Ishut 3:17, Hilkhot Me'ila 7:1; Tur, Hoshen Mishpat 96, 188.
25. Rosh ha-Shana 29a; Palestinian Talmud 3:48c; Tur, Orah Hayyim 589.
26. Tur, Orah Hayyim 460.
27. Eruvin 31b; Palestinian Talmud, Eruvin 3:20c.
28. Gittin 9a, 23a; Palestinian Talmud, Gittin 2:44a.
29. Gittin 22b, Palestinian Talmud Gittin 2:44a.
30. Tur, Hoshen Mishpat 235.
31. Ibid. 243.
32. Rambam, Zekhiya u-Mattana 4:7. Rosh (Ketubbot 2:14) maintains that this applies only in the case of the cyclical shoteh ('itim halim 'itim shoteh).
33. Qetsot ha-Hoshen 243:6.
34. Tur, Hoshen Mishpat 96.
35. Sefer ha-Terumot 36:1 (cited in Mishpetei ha-Da'at).
36. Rambam, Hilkhot Ishut 2:26, 4:9.
37. Tur, Even ha-Ezer 44:2.
38. Yevamot 112b.
39. Even ha-Ezer 44.
40. Rama, Even ha-Ezer 44.
41. Tosefta, Yevamot 2:6; Yevamot 104b.
42. Tosafot, Yevamot 104b.
43. Rambam, Yibbum ve-Halitsa 6:3, 6.
44. See note 4; Rambam, Yibbum ve-Halitsa 6:8.
45. Yevamot 112b.
46. Rambam, Gerushin 10:23.
47. Tur, Even ha-Ezer 119; Raavad on Rambam, Gerushin 10:23; see halakhic analysis in M. M. Brayer, "The Concept of Insanity in Rabbinic Law and in Psychiatry," Proceedings of the Association of Orthodox Jewish Scientists 10 (1990): 11-66.
48. Responsa Seridei Eish 3:21.
49. Responsa Tsits Eli'ezer 8, 15:12, no. 5; Nishmat Avraham, vol. 3 (Even ha-Ezer), 145:3.
50. Tosefta, Nidda par. 2.
51. Rambam, Hilkhot Mekhira 29:4.
52. Rambam, Hilkhot Eidut 9:9-10. Rambam also cites the halakha that a shoteh is pasul (unfit) for 'eidut (giving testimony) since he is not bar mitsvot.
53. Gittin 70b.
54. Berakhot 17a.