JEWISH LAW AND THE INSANE

QUESTION:

What, in accordance with Jewish law, is the status of the insane, and our duties to them? (Asked by Rabbi Melanie Aron, Morristown, New Jersey.)

ANSWER:

As may well be imagined, the problem of the insane has concerned the tradition from the earliest Biblical times. Curiously enough, three people who are mentioned as insane, or in connection with insanity, were kings, King Saul, of course, and Nebuchadnezzar, King of Babylon (Daniel 4:21 ff.) and David, even before he was king, pretended in the presence of Achish, King of Gath, to be insane (I Samuel 21:16). Virtually nothing is mentioned in Scripture as to the treatment of insanity except perhaps the suggestion made by the friends of King Saul (I Samuel 16:16) that if the king will find someone who can play soothing music, that might help end the mad fury of the king.

As for the talmudic literature, it is understood that the insane cannot perform such legal duties which would require full conscious consent or general carefulness. Thus, for example, an insane person cannot execute marriage which requires full conscious consent, nor divorce. An insane woman cannot be divorced because she cannot properly conserve the document, the get. So an insane person cannot be held guilty if what he has done is clearly beyond his control. The Mishnah puts it tersely (Baba Kamma 8:4): that contact with the insane is to be avoided because if you injure them, you are liable, but if they injure you, they cannot be held liable. He is like a minor. He cannot validly buy or sell real estate or movable property. Yet, if he does have lucid intervals, his actions in these intervals are valid (Hoshen Mishpat 235).

As important as are these legal inabilities of the insane, equally important is our responsibility to them. Thus, for example, if a man is insane, the court must appoint trustees to conserve his property so as to provide for his wife and children (Ketubot 45a). It is clear, then, that our responsibilities to the insane are great. We must protect and help them in any way we can. This is always our duty. Yet if they are unable to participate in certain joint social meetings, such as public worship, etc., they are not always necessarily responsible to do so.

In brief, there are two varying elements involved in the situation. One, it is our duty to help them as much as we can. Two, there are many responsibilities in Jewish law in regard to which they are not eligible and therefore not required to fulfill. Hence, on such occasions when certain ones of them can be safely included, for their own benefit, and yet not destroying the benefits of the assembly for the others, they may of course be included. Each must be judged individually.