A Torah Response to Jews with Disabilities
January 13, 2008, a new organization, Yad HaChazakah
The Jewish Disability Empowerment Center, held
its official launch. As Rabbinic Advisor to Yad, I invite
you peruse their website at www.yad-jdec.org.
Yad defines its uniqueness as being the first and only service organization, led by Jews with obvious and hidden disabilities, in accordance with Orthodox precepts. To this end, it declares that its mission is driven by the spirit of Rabbi Moshe ben Maimons (RAMBAMs) highest level of tzedakah; to strengthen each others capacities to live with dignity and respect. In declaring its allegiance to Orthodox principles, Yad is not simply stating that it will abide by Halacha in its decisions and activities. In invoking the famous principle of Rambam, Yad is informing the world that it will apply a Torah perspective in its very philosophy of how to respond to the needs and concerns of individuals with disabilities. This may be more unique than most may think.
Many present a distinction between the system of Torah and the Western Worlds legal system in terms of rights and obligations. They contend that Torah is a system built upon the presentation of obligations; the Halachic codes define duties, not rights. The Western legal system, it is contended, is, however, built upon the presentation of rights; these legal codes define rights, not duties. The distinction is often taken to an extreme. Rights and obligations are often, simply, mirrors of each other. Defining a right in the one often necessarily defines an obligation in the other. Similarly, defining an obligation in the one can often create or reveal a right in the other. In addition, it is clear that, at times, the Torah also does define certain rights and that the Western Worlds legal systems, also at times, can define duties. Yet there may be some truth and substance to this assertion, at least in terms of language. The Western legal system, generally, attempts to affect the workings of society by expressing, defining and implementing rights. The Halachic system generally attempts the same goal, by expressing, defining and implementing obligations. This difference in methodology can have an effect on the workings of the respective societies.
One area where this distinction can have an impact is in how a society responds to the needs of the disabled. American society, for example, has granted certain rights to people with disabilities, to which the general society is to respond. The granting of rights to this one segment of society does effectively create obligations on other segments of society but the process is through the granting of rights. We would expect the Halacha, applying this theoretical distinction, to respond to similar needs in society by creating or declaring certain obligations. Is this actually so? There is no category within Halacha specifically defining a unique obligation in response to the needs of a person with a disability. If we apply Rambams principles on how one is to give charity to individuals with disabilities, as Yad has done, we are actually attempting to respond to the issue by placing people with disabilities in the same category as the ani, the poor person. The obligation on others, as such, would seem to be similar to the obligations created under the rules of tzedakah. In comparison to the American response, as presented, for example, in The Americans with Disabilities Act of 1990 would, thus, seem to be major. Tzedakah, it would seem, is motivated by sympathy. Caring in this manner, though, can be defeating. The American response to people with disabilities is marked by the word empowerment. It would seem that the Halacha, in not granting rights to the disabled, does not share this objective.
There is a fundamental weakness in the way individuals approach the distinction between Torah and Western systems through the application of concepts of rights and obligations. There is a broader context that is often overlooked. Western legal systems had to be defined by rights because the movement of legal development was against a backdrop of imposition and tyranny. The historical assumption was that the people were almost like the chattels of the ruling powers. The advocacy of legal initiatives in the development of a society, as such, had to be through the process of granting rights. This is not so with the Halacha. The Torah legal system was built upon a recognition, by and from the Divine, of inalienable rights in the human being. Thus God in effecting the development of a Torah society did so by marking duties that would act upon, even infringe upon, these rights. Thus to gain a full appreciation of the mechanics of any halachic enactment, it is important to note the inalienable rights upon which this duty is enacted. This recognition will allow us to gain a fuller perspective of the laws of tzedakah and understand why it truly can form a model of empowerment as defined by Halacha.
Tzedakah defines a duty to care but, while sympathy and empathy are necessary emotions in the process, it is built upon a different motivator. The ani is but one example of an individual who lacks an ability to act, in this case due to lack of monetary funds. A key to understanding the halachic response to the ani is built upon this recognition he/she is an individual who lacks the power to act. Our duty of care, as defined in the laws of tzedakah, is to assist this individual in gaining or regaining this power by acting for them or enabling them to act on their own. This is the significance of Rambams highest principle to truly care means to assist the individual in regaining his/her power to act. This demands more than sympathy or empathy for a persons specific plight. It demands of us to recognize the inherent value in the human desire for independence and that our caring and sympathy can also be part of the problem.
This formulation of the highest level of caring is actually a result of a recognition of inherent rights upon which an obligation to care is formulated. Halacha mandates that we should care and act upon this empathy for others. The uniqueness of Halacha, though, is that this obligation does not exist in a vacuum. Caring and giving is not enough. As there is an inalienable right which this obligation can affect, any fulfillment of this obligation must be considered in tandem with this right the right to dignity. Caring can often create a class system with those who feel empowered through their giving and those who feel little through their taking. Not recognizing this pitfall in giving causes us to ignore the right to dignity that all human beings have. As such, Rambams principles demand of us to recognize the inalienable right in all to dignity and to ensure that even as we care, we respect this dignity. This is the halachic standard of empowerment a recognition of the right to human dignity.
The laws of tzedakah thus do form a proper basis for understanding a halachic vision as to how a society should respond to the needs of those with disabilities. We all have better qualities and worse qualities. We all need each other, some more and some less. The obligation to care calls upon each of us to help one another. The inalienable right of the human being to possess and maintain dignity demands of us to ensure that our caring does not stifle the individualbelittling him or herbut rather empowers the individual.
This is the fundamental vision of Yad in its approach to empowering individuals with disabilities to live fuller lives. It is not the empowerment envisioned by such presentations as The Americans with Disabilities Act. Halacha does not necessarily grant the rights that are bestowed within this American legal perspective. But Halacha does recognize that as we care for another, we must ensure that we safeguard that other persons dignity and that our acts of giving have the intent to empower everyone to meet their Divine potential and full capacities as individuals. This is the Torah directive to care and respect.