Friday, February 25, 2011

Analogy Vs. Inference

Yesterday, we noted that the Gemara does not directly determine the halachah regarding activating electrical circuits on Shabbos. But that does not mean that the Gemara is irrelevant. Rather, a posek decides whether electricity is sufficiently analogous to categories that the Gemara does discuss. Because there can be no exact analogy, this means that ultimately it is a matter of the personal judgment of the posek, which is why there are disputes on the matter. In other words, the halachah cannot be directly or conclusively inferred from the Gemara; but a Posek can exercise his judgment that it is sufficiently - albeit not exactly - analogous to something in the Gemara. As a rough analogy rather than a precise inference (I am not yet sure whether the stress should be on the adjective or the noun - input would be welcomed!), the halachah is ultimately based much more on non-Talmudic considerations rather than on the Gemara itself, even though it may be ultimately rated as falling under a Talmudic category. The recognition of that allows for more incorporation of non-Talmudic-halachic reasoning. For example, one could say that because electricity is not in the Gemara, therefore it is permitted; or, one could say (or subconsciously feel) that because activating electrical circuits destroy the spirit of Shabbos, therefore we will consider it analogous to one of the forbidden melachos.

Now, back to brain death!

In an earlier post, I noted how Rav Shlomo Zalman Auerbach admitted that he was mistaken in attempting to determine the halachah of brain death based on the Gemara regarding the impossibility of delivering a live baby from a woman who dies. What happened here is that Rav Auerbach realized the impossibility of inferring the halachah from the Gemara. One cannot infer that since a brain-dead woman can deliver a healthy child, then brain death is not death - for when the Gemara says that a dead woman cannot deliver a live baby, this was merely describing the reality of 1500 years ago, and it has no bearing whatsoever on the modern question of brain death.

By the same token, one cannot draw inferences from the Gemara in Yoma regarding a person found under a collapsed building, where respiration is ruled to determine whether he is alive. This only tells you (and correctly so) whether with a person found under a collapsed building 1500 years ago, respiration determined whether he was alive; it does not tell you what the ruling is regarding someone brain dead and breathing via a respirator.

What about the Mishnah regarding a decapitated animal being considered dead even if the limbs twitch? Again, one cannot draw any direct inferences to brain death, which is not exactly the same. One can judge that it is sufficiently analogous, but because this is a personal judgment regarding sufficient analogy, there can be - and are - those who disagree.

The Gemara really does not address the situation of brain death at all. How could it? In order to do so, the Gemara would have to differentiate between the functioning of different organs and systems. It would have to reflect an awareness of the differentiate between respiration, circulation and neural activity - and the correct identification of which organs are responsible for each. But 1500 years ago, there was no concept of the difference in these functions, or in keeping part of the body alive while another part has died, let alone correctly identifying the function of each part of the body. Thus, no clear inferences about brain death - either way - could possibly be drawn from anything that the Gemara could conceivably say.

But what we can do is to decide that brain death is analogous to something in the Gemara - either to a case in which someone is considered alive, or to a case in which someone is considered dead. So, we will subsume it under a category in the Gemara. But to determine which, we will have to make a judgment call based on ideas, facts and values. How to do this is a thorny problem, which we have touched upon in the past and to which we may return on a future occasion.

36 comments:

  1. Interesting post. I wonder if you've seen Moshe Halbertal's

    מהפכות פרשניות בהתהוותן: ערכים כשיקולים פרשניים במדרשי הלכה

    where I think his basic thesis is that the halachic discussions in the Gemara themselves always involve implicit value judgements (for example not implementing the sota ritual as a reflection of changing mores in the Biblical vs. Rabbinic period)

    Eric

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  2. "The Gemara really does not address the situation of brain death at all."

    All poskim look to the passage in Yoma, dealing with the man buried upside down, for guidance and understanding on whether physiological decapitation is halachic death. My unspoken assumption has always been that this particular passage in Yoma is precisely there so that 21st century poskim can decide this issue.

    Elsewhere, you refer to a "respirator". On the HODS web site, it is said that the correct term is "ventilator". What the difference is between the two machines, I don't know.

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  3. R' Natan, the issue is not whether we can use the simple absence of breathing criterion of Yoma 85a to determine death today. Of course, if EMS or emergency room personnel come across an individual who is still warm but has neither pulse nor is breathing, they aren't permitted to simply abandon him. They must attempt to resuscitate him. We don't use either the talmudic breathing criterion nor the pulse criterion added in the 19th century. Our knowledge of the function of organs and sustaining life is far greater than in the past, and we can't rely on the views of those with lesser knowledge when it comes to life and death decisions. However, the brain death criterion of modern medicine that necessarily involves absence of spontaneous breathing satisfies both a medical as well as the talmudic-Mishne Torah-Tur-Shulchan Aruch determination of death. That agreement is what justifies and legitimates the harvesting of organs from someone whom other halachic authorities consider to be possibly alive.

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  4. "It would have to reflect an awareness of the differentiate between respiration, circulation and neural activity "

    Considering that nobody understood blood circulation until the 17th century, there is no way that it could have been used as a standard by the authors of either the Talmud or the Shulchan Aruch.

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  5. All poskim look to the passage in Yoma, dealing with the man buried upside down, for guidance and understanding on whether physiological decapitation is halachic death.

    I wouldn't say "all," and those that do are committing exactly the same error that Rav Shlomo Zalman Auerbach admitted to after years of arguing that one can derive the halachah from the halachach about a pregnant woman.

    All that the Gemara in Yoma is telling us is that a person found under a collapsed building 1500 years ago is only alive if he is breathing. That has no bearing whatsoever on the question of brain death.

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  6. However, the brain death criterion of modern medicine that necessarily involves absence of spontaneous breathing satisfies both a medical as well as the talmudic-Mishne Torah-Tur-Shulchan Aruch determination of death.

    But by incorporating the idea of absence of spontaneous breathing, this raises other problems. For example, there are people with fully functioning brains who nevertheless suffer from conditions that prevent spontaneous respiration, and nobody considers them dead! So you have to make the definition more complicated, and this is exactly what some anti-BSD poskim used to disprove the BSD position.

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  7. "My unspoken assumption has always been that this particular passage in Yoma is precisely there so that 21st century poskim can decide this issue."

    Would that it remained so.

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  8. The problem, of course, is that "brain death" in secular terms, is really nothing more than a consensus position on what a person who has experienced a maximal degree of neurologic devastation will look like. "Maximal" meaning according to commonly accepted tests. If we were willing to implant EEG depth electrodes into a person's brain, who was considered brain dead, we might very well notice differences between individuals deemed to be in this state--greater and lesser degrees of minute cortical activity. No one would recommend such a thing, but it is important to keep in mind that the neurologic definition of brain death was arrived at by consensus. It is not tantamount to a scientific determination of "when the soul has left the body."

    So throwing halachah out the window (God forbid) still leads us to a place where consensus rules the day, as opposed to some sort of objective criterion, that completely removes all doubt.

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  9. Nobody is suggesting "throwing halachah out of the window"! Rather, the idea is to find some other Torah-based way of resolving it other than by making inferences from halachic sugyas. One way is along the lines of that mentioned by Rav Ezra Bick in an earlier post regarding surrogate IVF. There are other ways, which I will discuss.

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  10. "All that the Gemara in Yoma is telling us is that a person found under a collapsed building 1500 years ago is only alive if he is breathing. That has no bearing whatsoever on the question of brain death."

    Rabbi Slifkin,

    It has a bearing. It says that if someone is breathing then in Halacha they are alive. A question dealt with by the Poskin is whether breathing with artificial means is breathing. If it is the Talmud would definitely rule it out. You seem to feel forced to make the whole issue one not addressed by the Talmud and it seems artificial.

    You can have an opinion on brain death and it doesn't have to conform to a Halachic definition. There is no reason for you to try to determine Halacha here.

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  11. It says that if someone is breathing then in Halacha they are alive.

    No, it doesn't. It says that if someone under a collapsed building is breathing, then in halachah they are alive.

    Just like when the Gemara says that a dead woman cannot give birth, it means a woman dead in their particular circumstances, not ours.

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  12. "No, it doesn't. It says that if someone under a collapsed building is breathing, then in halachah they are alive."

    It would seem to say a bit more than that. A person who is "crushed" or "buried" but still breathing is halachically alive.

    I think any rational person would agree that the gemorah is not talking specifically about a building, and not even specifically about a building with the same construction consideration that existed 1500 years ago.

    If this applies to a person who is breathing under water, or a person who is breathing in high altitude while on their way to hit the ground is still considered alive, or any other non, "buried" or "crushed" instance I think is more reasonable to argue that the gemora is not talking about those situations, then suggesting that it is only under a building from 1500 years ago.

    I don't believe anyone could argue that a person using Scuba equipment is questionably dead even though the breathing might appear artificial.

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  13. "You seem to feel forced to make the whole issue one not addressed by the Talmud and it seems artificial."

    The way it seems to me, you are the one forcing the issue not R' Slifkin. Does it not seem weak to you, to attempt to derive from a statement made by Chazal (regarding their times) that a person under a collapsed building is alive if breathing that they are making any statement about brain death whatsoever??
    How could this statement possibly be used as an origin for a concept, if the people that made the statement did not even know such a concept existed? other statements of chazal that can be related to modern medical advancements are possible becuase when chazal discussed those ideas the basic fundamental concept of the idea existed. Therefore their commentary holds weight

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  14. I think any rational person would agree that the gemorah is not talking specifically about a building, and not even specifically about a building with the same construction consideration that existed 1500 years ago.

    Of course. You can extrapolate to any similar case. But what you cannot do is extrapolate to a case which may be significantly different. Such as brain death.

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  15. Natan Slifkin said...

    "...No, it doesn't. It says that if someone under a collapsed building is breathing, then in halachah they are alive."

    As opposed to before they were in a collapsed building? It is obvious it is teaching they are alive because they are still breathing. There are no special definitions for people under debris. You may argue that there can be more complicated cases now but still breathing would be an indication of life straight out of this Gemara. As a result a part of the issue is whether there is real breathing according to Halacha when it is through a machine. Are you trying to formulate Psak? If you are I must say so far as far as logic here you are more sophistry than anything else.

    "BA said...

    The way it seems to me, you are the one forcing the issue not R' Slifkin. Does it not seem weak to you, to attempt to derive from a statement made by Chazal (regarding their times) that a person under a collapsed building is alive if breathing that they are making any statement about brain death whatsoever??

    How could this statement possibly be used as an origin for a concept, if the people that made the statement did not even know such a concept existed? other statements of chazal that can be related to modern medical advancements are possible becuase when chazal discussed those ideas the basic fundamental concept of the idea existed. Therefore their commentary holds weight"

    They clearly held that breathing is a sign of life. Are we to say that because we are unaware of concepts to come our proposed ideas can be said to have no bearing on them or that laws can be overturned because of that? Laws work with what they say and are then applied to new circumstances.

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  16. "...No, it doesn't. It says that if someone under a collapsed building is breathing, then in halachah they are alive."

    As opposed to before they were in a collapsed building?


    No, as opposed to if they are not breathing!

    You may argue that there can be more complicated cases now but still breathing would be an indication of life straight out of this Gemara.

    No, it wouldn't, because those cases are more complicated!

    As a result a part of the issue is whether there is real breathing according to Halacha when it is through a machine.

    Exactly. Which is why the Gemara is not any proof.

    Are you trying to formulate Psak?

    At this point, I am explaining why anyone who does formulate a psak based on this Gemara is mistaken.

    If you are I must say so far as far as logic here you are more sophistry than anything else.

    It's strange that you keep throwing out such accusations when to others it seems that it is you who are engaging in sophistry and forced arguments.

    Are we to say that because we are unaware of concepts to come our proposed ideas can be said to have no bearing on them or that laws can be overturned because of that?

    Certainly if new CIRCUMSTANCES arise then our laws might not apply!

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  17. There are many reasons why people on both sides of this issue do not see eye to eye. Allow me to point to two we have seen in our conversation.

    The first, as articulated by Mr. Pasik, is the magical thinking with which we were raised. He believes that a man writing about one circumstance 1500 years ago really intended to comment on some other circumstance which would not exist for another 1500 years (I guess commenting on then-contemporary issues was already passe, what with all the prophets walking around.). Unless Mr. Pasik is too subtle for me, this comment was made seriously.

    The second issue is the inability to deal with gradations. We're raised to think in black-and-white terms of assur/muttar tamei/tahor, etc. (See Sholom's comment, "So throwing halachah out the window (God forbid) still leads us to a place where consensus rules the day, as opposed to some sort of objective criterion, that completely removes all doubt.") In the real world people recognize that whatever one's underlying assumptions (the halachic system included), there's no such thing as black and white. Cars are allowed to move but not dangerously fast; on some roads people might think a maximum of 30mph reasonable, on others 65. It probably doesn't terrify Sholom to think God hadn't ordained some objective speed limit.

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  18. The same is true of life and death. Sperm and ovary go through infinite gradations before becoming life. Mankind and the legal system are forced to articulate a point at which they feel life has occurred. Conversely in death, organs fail. If Sholom thinks that there are gradations of brain death (and he is correct) then there are gradations of respiratory arrest as well (How shallow can the breathing get? What of Sholom's neuronal action potentials; if these are found in the muscles of respiration, is the non-breathing person then alive?).

    As it happens, brain death is not some point in the middle arbitrarily chosen (for example, the loss of function of 6 of the 12 cranial nerves could have been chosen) but a point way at the end of the spectrum where no brain activity at all is evident. Could there theoretically be an action potential? Undoubtedly there could be, but it's far more reasonable to suggest that we are are halachically over the issur of eating bugs every time we breathe in bacteria then to think that such a person is alive.

    I believe that these two assumptions are very psychologically convenient for us. They remove the ambiguity of the real world and the responsibility of making decisions. They allow us to go on thinking that there is some for-ordained objective truth to every moral quandary.

    (For those who need rabbinic endorsement, by the way, the second point above is elaborated upon by the maharal.)

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  20. I still see a problem hereFebruary 27, 2011 at 11:40 PM

    As a rough analogy rather than a precise inference (I am not yet sure whether the stress should be on the adjective or the noun - input would be welcomed!),the halachah is ultimately based much more on non-Talmudic considerations rather than on the Gemara itself, even though it may be ultimately rated as falling under a Talmudic category.

    I see where you are going, but believe all your "non-Talmudic considerations" are actually Talmudic ones. If you know where to look, the Talmud actually provides guidelines about how and when to apply halacha as well as giving halachic rulings and principles.
    הלכה ואין מורין כן, לפי שאינן בני תורה, מצא פירצה וגדר

    What people have been calling "meta-halachic" principles are quite often explicit gemaras cited by the poskim such as Rabbi Moses Sofer.

    The recognition of that allows for more incorporation of non-Talmudic-halachic reasoning.

    You're conscious attempt to liberalize the halachic process in order to include "non-Talmudic considerations/reasoning" is what defines your approach as outside the pale of Orthodox halacha. (No offense intended, just calling it as I see it.)

    For example, one could say that because electricity is not in the Gemara, therefore it is permitted; or, one could say (or subconsciously feel) that because activating electrical circuits destroy the spirit of Shabbos, therefore we will consider it analogous to one of the forbidden melachos.

    Please cite the actual words of respected poskim who use these arguments and see whether they invoke talmudic sources or not.
    (The one posek I've seen who incorporated non-Talmudic considerations the most is RYYW. For example:
    Re: The source for eating a non kosher animal rather than human flesh:
    Seridei Eish, 3:127
    )

    I don't see how you can judge if a posek is just engaging in wishful thinking when he cites a talmudic source or is being genuine in his search for an appropriate Talmudic analogy.
    Unless of course, you pull out your Chareidi stereotypes and let it do the judging for you.

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  21. I see where you are going, but believe all your "non-Talmudic considerations" are actually Talmudic ones. If you know where to look, the Talmud actually provides guidelines about how and when to apply halacha as well as giving halachic rulings and principles.

    Following that way of describing things, you could justify any psak halachah whatsoever - even those by Reform rabbis - as being Talmudic. After all, there's always some maamar Chazal that you could hang the operating value on.

    You're conscious attempt to liberalize the halachic process in order to include "non-Talmudic considerations/reasoning" is what defines your approach as outside the pale of Orthodox halacha. (No offense intended, just calling it as I see it.)

    When saying something extremely offensive, even if no offense is intended, one should be very, very certain that what one is saying is correct.
    Why on earth is this outside of Orthodoxy?! I ma talking about a case which the Gemara does not discuss, so no direct Talmudic basis for the halachah is possible. So we have three choices - either to say that we are incapable of paskening it, or to issue a ruling based on non-Torah considerations, or to issue a ruling based on concepts that are in the Torah but are not direct Talmudic halachah. How on earth is the latter non-Orthodox?! It's not "liberalizing" the halachah - it's finding a way to pasken it within a Torah framework, when the normal mechanism is not available!

    I don't see how you can judge if a posek is just engaging in wishful thinking when he cites a talmudic source or is being genuine in his search for an appropriate Talmudic analogy.

    I think that the Chasam Sofer which I cited two weeks ago shows that sometimes Poskim will deliberately present something as being based in a Talmudic source even when they know that not to be the case. So is it so hard to imagine that this might occur subscnsciously? Especially since we see Rav Shlomo Zalman acknowledging that he was mistaken in thinking that the Gemara addresses something that it did not in fact address. Of course, we can't conclusively determine what is going on in each case. But it doesn't matter; the point with brain death is that we can very certainly say that the Gemara does not and could not discuss it, and anyone who thinks it does is either making an innocent mistake or is deliberately implementing a policy of hanging something on the Gemara (which many Poskim see as the proper way to act).

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  22. We seem to keep talking past one another. Of course, the gemara in Yoma 85a is not merely limited to a collapsed building some 1500 years ago. The proof text offered there for the movement of air through the nostrils criterion was "kol asher ruach chaim be'apav". In other words, they found biblical support that breath and life were synonymous. Given our far greater experience and knowledge about life and death and the function of organs, we have today an additional criterion - whole brain death, including the brain-stem. The argument about the centrality of blood circulation in defining life and death is based on some language in teshuvot of the Chacham Tzvi and Chatam Sofer. They, in turn, based themselves on their knowledge of the medical understanding of their times - rather than earlier authoritative halachic sources such as the talmud, Rambam, and Shulchan Aruch. Our medical knowledge and ability to sustain life is greater. Why should we be bound by their understanding? The argument that death is determined when the soul leaves the body is a red herring since no one really knows exactly when that occurs.

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  23. Y. Aharon - the problem with any definition involving "spontaneous breathing" is as Rav Bleich points out - that polio victims cannot breath spontaneously and yet are definitely alive!

    And you have to have a single definition of life/death. So it's brain death or something else; but you can't have a contingent definition.

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  24. Natan Slifkin said...
    “"...No, it doesn't. It says that if someone under a collapsed building is breathing, then in halachah they are alive."

    As opposed to before they were in a collapsed building?

    No, as opposed to if they are not breathing!”

    So breathing is an indication of life. That Gemara also indicates that the heart being alive is an indication of life. That seems to be why making an analogy with a chopped off head is used on behalf of brain death to deal with the other indications.

    “You may argue that there can be more complicated cases now but still breathing would be an indication of life straight out of this Gemara.

    No, it wouldn't, because those cases are more complicated!”

    In the future perhaps heads could be preserved independent of bodies but that would still result in ruling that what occurs because of a chopped off head being not preserved is an indication of death. We would be able to rule for instance that natural breathing is an indication of life even today and the ruling on the preserved head would have to address this. In other more complicated cases still have to meet the requirements of the past.

    “As a result a part of the issue is whether there is real breathing according to Halacha when it is through a machine.

    Exactly. Which is why the Gemara is not any proof.”

    But it is proof that natural breathing indicates life even today.

    “If you are I must say so far as far as logic here you are more sophistry than anything else.

    It's strange that you keep throwing out such accusations when to others it seems that it is you who are engaging in sophistry and forced arguments.”

    There is nothing strange in my accusation that others support. I don’t have an opinion on whether brain death is death in Halacha so I am not trying to force an argument.

    “Are we to say that because we are unaware of concepts to come our proposed ideas can be said to have no bearing on them or that laws can be overturned because of that?

    Certainly if new CIRCUMSTANCES arise then our laws might not apply!”

    I didn’t say otherwise but that is what we have to see.

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  25. So breathing is an indication of life.

    In the case of a person under a collapsed building, yes. In a brain-dead person - no. Or, not necessarily.

    That Gemara also indicates that the heart being alive is an indication of life.

    No, it doesn't.

    "Exactly. Which is why the Gemara is not any proof.”

    But it is proof that natural breathing indicates life even today.


    You mean, breathing without a ventilator? I don't think that anyone would dispute that that is a sign of life!

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  26. R' Natan, I didn't say that spontaneous breathing by itself is a valid criterion for life. That is the viewpoint expressed in Yoma 85a. Since talmudic and medieval times, additional requirements have been made. In the 19th century, it was lack of a pulse and medical certification. Today, it involves an irreversible non-functioning brain - including the brain-stem. At any time, the best medical information should be governing - provided that it includes the talmudic specification of absence of breathing.

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  27. I still see a problem hereFebruary 28, 2011 at 10:16 PM

    Following that way of describing things, you could justify any psak halachah whatsoever...

    Um, not one that declares openly that there is NO conceivable source in Chazal by which to pasken.
    ( Reform and Conservative pseudo-halachic literature very transparently put up these ma'amarei Chazal as wallpaper-- or more accurately, as a fig-leaf. The language of their responsa reflect this clearly.)


    So we have three choices - either to say that we are incapable of paskening it, or to issue a ruling based on non-Torah considerations, or to issue a ruling based on concepts that are in the Torah but are not direct Talmudic halachah. How on earth is the latter non-Orthodox?!

    I would consider your approach closer to the second than the third. Here's why:
    If you exclusively follow medical science/ethics in establishing brain-death criteria in order to declare someone dead, and if by your lights the Talmud could not possibly recognize this new definition, then --according to pure Talmudic criteria-- you are possibly killing the brain-dead patient when harvesting his organs.
    It's that simple.

    NO aggadic or midrashic concept you could find would lead one to conclude that it is permitted by Torah law to *actively* possibly kill someone else in order to save others.
    It is a "psak" built squarely on NON-Torah consideration.

    Using aggadic positions of Chazal as a basis to issue such a "ruling" in favor of organ harvesting would be more like the "fig-leaf Chazal" employed by Reform pseudo-halachic "responsa".


    It's not "liberalizing" the halachah - it's finding a way to pasken it within a Torah framework, when the normal mechanism is not available!

    Find me examples in the classic responsa literature where we "pasken" outside the normal mechanism.
    RSZA said we DON'T "pasken" in such a case. The burden of proof is on you to show that we can.

    To be continued in the next comment...

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  28. I still see a problem hereFebruary 28, 2011 at 10:17 PM

    Continued from previous comment...

    I think that the Chasam Sofer which I cited two weeks ago shows that sometimes Poskim will deliberately present something as being based in a Talmudic source even when they know that not to be the case. So is it so hard to imagine that this might occur subconsciously?


    Um, I believe I cited explicit gemaras which instruct poskim to do just that when the social reality warrants it! These poskim *are* following the gemara's psak to the T! It is not at all as you make it out to be: some kind of meta-Halachic non-Talmudic consideration.
    See Iggros Moshe:
    שו"ת אגרות משה אורח חיים חלק א סימן קכב
    .
    וכל זה מדינא אבל למעשה אין להתיר כיון שבני תורה מועטין בעוה"ר עיין בשבת דף קל"ט שבמקום שאינן בני תורה יש דברים שאין להתיר כדי שלא יבואו להקל, ורואה אני שכ"ש בזה וכ"ש בדור ובמקום פרוץ כבזמננו ומקומותינו שצריך להחמיר ואין לקרוע לא שק של בגד ולא של נייר ולא לשבור הקענס ותיבות השפראטן ואף לא לחתוך ולקרוע החבל שקשור בו השק אף בדברים שהם יותר צורך שבת וכ"ש בדברים שאין בהם צורך שבת כ"כ רק שהוא לכבוד ועונג שהמניעה אף רק מחמת יראה מחשש חלול שבת זהו כבוד שבת היותר גדול.

    He is citing an explicit gemara in Shabbos:
    תלמוד בבלי מסכת שבת פרק כ -

    שלחו ליה בני בשכר ללוי: כילה מהו? כשותא בכרמא מהו? מת ביום טוב מהו? אדאזיל, נח נפשיה דלוי. אמר שמואל לרב מנשיא: אי חכימת - שלח להו. שלח להו: כילה - חזרנו על כל צידי כילה ולא מצינו לה צד היתר. ולישלח להו כדרמי בר יחזקאל? - לפי שאינן בני תורה.
    כשותא בכרמא - עירבובא. ולישלח להו כדרבי טרפון? דתניא: כישות, רבי טרפון אומר: אין כלאים בכרם, וחכמים אומרים: כלאים בכרם. וקיימא לן: כל המיקל בארץ - הלכה כמותו בחוץ לארץ? - לפי שאינן בני תורה.

    If poskim do this subconsciously, then it only shows that they have honed their purely halachic instincts. They are not making up their own values outside halacha.


    Especially since we see Rav Shlomo Zalman acknowledging that he was mistaken in thinking that the Gemara addresses something that it did not in fact address.

    This mistake was due to a misunderstanding of the biological facts and possibilities. Nothing more.
    He simply wasn't aware of the independence of the various life-giving systems of the body. He thought that the body could not be reduced to a biological incubator.
    This shows nothing about your claim: harboring a bias that will exaggerate what a gemara can prove.

    Of course, we can't conclusively determine what is going on in each case. But it doesn't matter; the point with brain death is that we can very certainly say that the Gemara does not and could not discuss it, and anyone who thinks it does is either making an innocent mistake or is deliberately implementing a policy of hanging something on the Gemara (which many Poskim see as the proper way to act).

    I suppose you are entitled to an opinion on this matter since you are also a rabbi.

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  29. Slifkin...""Exactly. Which is why the Gemara is not any proof.”

    But it is proof that natural breathing indicates life even today.

    You mean, breathing without a ventilator? I don't think that anyone would dispute that that is a sign of life!"

    Stop yelling please and in logic class they teach you to not give your opponent a weak view. It doesn't do anything for your side and actually makes your side look weaker. I mean breathing. It then becomes an issue what is called still natural breathing ie. is the person considered still breathing in Halacha.

    "That Gemara also indicates that the heart being alive is an indication of life.

    No, it doesn't."

    Then what is it mentioning the heart for in your view?

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  30. It then becomes an issue what is called still natural breathing ie. is the person considered still breathing in Halacha.

    In other words, the Gemara does not say anything about whether someone who is brain dead and not breathing naturally is considered to be breathing naturally and alive!

    Then what is it mentioning the heart for in your view?

    First of all, according to some girsa'os, it doesn't mention the heart. Second, even if it does, it mentions it as a way to check breathing (chest movement), not pulse.

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  31. "Natan Slifkin said...

    It then becomes an issue what is called still natural breathing ie. is the person considered still breathing in Halacha.

    In other words, the Gemara does not say anything about whether someone who is brain dead and not breathing naturally is considered to be breathing naturally and alive!"

    If that is all there is to it you may be right. Also there is more than one Gemara to deal with. Rabbi Shlomo Zalman Auerbach said that most brain death isn't death since brain dead women have given birth, because of the Gemara saying first the mother dies and then the fetus.

    "Then what is it mentioning the heart for in your view?

    First of all, according to some girsa'os, it doesn't mention the heart."

    I know but that doesn't help. It is quoting an actual authority, if I remember correctly Abaye. We can't tell him he didn't say something because of another Girsa. Also it makes sense that he would be saying the heart or meaning it as that fit in with medical theory then.

    "Second, even if it does, it mentions it as a way to check breathing (chest movement), not pulse."

    Then why the heart? They did check for pulses in those days. All cultures did. It was a way to see if someone was really dead. No pulse and no breathing equaled cardiac death. Brain death also existed except it wasn't long enough or able to be detected unless you saw someone's head chopped off or crushed or something.

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  32. The role of the heart in blood circulation was not discovered until 300 years ago. See Rabbi Dr. Edward Reichman's article.

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  33. Yes I am aware of that from college. Still it is hard to see what they would see as far as "breathing" at the heart if not for the pulse. In the Encyclopedia of Medical Halacha it says they did not know of blood circulation but they thought the heart was involved in air circulation. It is that it says that they were looking for.

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  34. If the gemara does not address brain death, how should a posek decide whether brain death constitutes halachic death?

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  35. You are missing the criteria 'mutal ke'even domem" whisch is part of the criteria besides irreversible respiration.
    You need to read the objections of R.Steinberg,R.Halperin, R.Tendler and Harav Yisraeli to Rav Bleich.This can be found in the Sefer "Kviat Reba Hamavet ,2007,second edition.

    I suggst learning more of the Halachic discussions and articles before making any conclusions.

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  36. "The role of the heart in blood circulation was not discovered until 300 years ago. See Rabbi Dr. Edward Reichman's article."

    That may be true, but it is also true that the "pulse" was discovered 1900 years ago.

    Actually. this seems to not be completely true....
    Reading the wiki article on Galen

    "Among Galen’s major contributions to medicine was his work on the circulatory system. He was the first to recognize that there were distinct differences between venous (dark) and arterial (bright) blood. Although his many anatomical experiments on animal models led him to a more complete understanding of the circulatory system, nervous system, respiratory system and other structures, his work was not without scientific inaccuracies.[8] Galen believed that the circulatory system consisted of two separate one-way systems of distribution, rather than a single unified system of circulation. His understanding was that venous blood was generated in the liver, from where it was distributed and consumed by all organs of the body. He posited that arterial blood originated in the heart, from where it was distributed and consumed by all organs of the body. The blood was then regenerated in either the liver or the heart, completing the cycle.[34] Galen also believed in the existence of a group of blood vessels he called the rete mirabile, near the back of the human brain.[34] Both of these theories of the circulation of blood were later shown to be incorrect.[12]"

    So while the modern correct theory might only be 300 years old, the general concept is much much older.

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