American Journal of Legal History, 2016, 56, 303–325
doi: 10.1093/ajlh/njw006
Advance Access Publication Date: 31 July 2016
Article
“The Heart Knows its Own Bitterness”:
Authority, Self, and the Origins of Patient
Autonomy in Early Jewish Law
Ayelet Hoffmann Libson*
ABSTRACT
One of the central problems of modern bioethics concerns the relative merits of medical expertise, legal authority and patient autonomy. This article examines the premodern conflict between these principles, revealing how the early tradition of Jewish
law sustained different models of expertise, authority and personal autonomy. Rabbinic
sources preserve opposed and contradictory voices regarding who is authorized to define a patient’s needs as dire enough to supersede important legal prohibitions. Early
rabbinic law enshrined the authority of experts, while later rabbis emphasized that life
is the preserve of the individual and maintained that only the patient can make critical
decisions about prolonging life, based on his or her physical and psychological needs
and desires.
This transition is related to notions of consciousness and the self emergent among
Christian contemporaries of the rabbis. The rise of a more sophisticated inner world
and the significance accorded to individual choice influenced the interpretation and
construal of law. By the late rabbinic period individuals were regarded as capable of
recognizing their own needs and making informed choices regarding their bodies and
selves. This ancient conversation offers a window into the history of the ethical
questions that arise specifically in the field of medicine and more broadly in the legal
realm.
I N TRO D UC T IO N
Such differences of nature have so great a force that sometimes one man ought
to choose death for himself, while another ought not.1
Questions of authority, autonomy, and coercion arise in any system of law.
As Robert Cover has taught us, “legal interpretation takes place in a field of pain and
* Lady Davis Fellow, Faculty of Law, Hebrew University. I would like to thank the following colleagues for the
many helpful conversations that significantly improved this article: Hanoch Dagan, Talia Fisher, Rachel Furst,
Moshe Halbertal, Ron Harris, Amalia Kessler, Roy Kreitner, Sara Labaton, Shai Lavi, Assaf Likhovski, Orit
Malka, Jeffrey Rubenstein, Shana Strauch Schick, Suzanne Last Stone, Christopher Tomlins, and two anonymous reviewers. This research was supported by the Minerva Center for Human Rights.
1 CICERO, DE OFFICIIS 1.112, in CICERO: ON DUTIES, M.T. Griffin and E.M. Atkins eds. (1991).
C The Author 2016. Published by Oxford University Press. All rights reserved.
V
For Permissions, please email: [email protected]
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death”.2 While Cover related law’s violence to state power, pre-modern legal cultures and legal systems operating independent of a state also have to contend
with the violence of law. Religious law too is often bent on constricting individuals’
autonomy, increasing the power of decisors to coerce their adherents to follow
their own vision of law. This control is established most clearly when inscribed
on the body through coercion of pain or death. Conversely, the willing subjection
of one’s body to the interpretation of a judicial authority may be seen as the ultimate act of submission to the values of the legal hierarchy. This article examines the
intersection of these themes in one passage from the Talmud, the canonical text of
Jewish law, concentrating on the power to interpret the pain of another person’s
body.3
Several studies have emphasized how the authoritative aspirations of the early rabbinic authors were played out specifically through the medium of the human body.
One analysis of the treatment of capital punishment in the Mishnah, the early corpus
of Jewish law, highlighted how the rabbis bolstered their own power in the face of
Rome’s cultural and political domination by constructing a complex ritual of execution. This appropriation of the death penalty allowed the rabbis to wield the ultimate
power of violence upon the bodies of their—imagined or real—followers.4 Other
scholars have directed the same mode of analysis to the ways in which the early rabbis controlled and policed women’s sexuality. For example, the rabbis reshaped the
biblical rite of the suspected adulteress, transforming the private priestly ritual into a
public spectacle directed by the rabbis, in which the woman’s body is exposed and
2 Robert Cover, Violence and the Word, 95 YALE L. J. 1601 (1986).
3 For readers unfamiliar with Jewish legal terminology, I provide the following brief glossary. Jewish law, or
halakhah, is based on the five books of Moses, often referred to as the Torah. According to tradition, this
written record of the divine law was accompanied by another corpus of oral law. In about 200 C.E., Rabbi
Judah the Patriarch edited a written compilation of the oral law, known as the Mishnah (teachings).
Around the same period another collection of rulings was collected in a compilation called the Tosefta
(addition). The sages referred to in both of these compilations are called the tannaim (reciters).
For the next three centuries (c. 200 C.E. to 500 C.E.), scholars called amoraim (speakers) continued to
interpret, expound, and debate the rulings of the tannaim, and the records of these conversations are codified in two compositions named the Talmuds. The first is referred to as the Jerusalem or Palestinian
Talmud, and it was edited in the academies of the sages of the land of Israel. The second was completed in
the academies of Babylonian Jewry and is referred to as the Babylonian Talmud. The Babylonian Talmud
was completed about two centuries later than the Jerusalem Talmud and reveals another layer of composition. The redactors of the Babylonian Talmud often contributed their own opinions to the talmudic commentary, although they preferred to keep their voice anonymous. Thus, a classic Babylonian discussion of
any given Mishnah weaves together amoraic statements together with the anonymous voice of the
Babylonian redactors.
Another form of rabbinic interpretation is known as midrash (homily). Midrash consists of the interpretive study of the Bible, and it primarily takes the form of close exegesis of scriptural verses. There are two
kinds of midrash: midrash halakhah, or legal midrash, elucidates legal portions of Scripture, and midrash
aggadah, which refers to interpretations of biblical narratives and often includes homilies, parables, and
legends.
For a more detailed introduction to classical rabbinic literature and the major scholarly works, see
HERMANN LEBRECHT STRACK AND GU€ NTER STEMBERGER, INTRODUCTION TO THE TALMUD AND MIDRASH, trans.
Markus Bockmuehl (1996).
4 BETH BERKOWITZ, EXECUTION AND INVENTION: DEATH PENALTY DISCOURSE IN EARLY RABBINIC AND CHRISTIAN
CULTURES (2006).
“The Heart Knows its Own Bitterness”
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humiliated.5 Similarly, recent work has shown how the rabbis shaped the biblical
examination of skin afflictions in the image of the Greco-Roman tradition of medical
examination, subjecting the examined body to the invasive gaze of a rabbinic authority. By demanding that the Jewish body be entirely exposed to the rabbinic gaze, the
rabbis established their authority as the sole and ultimate interpreters of the body.6
These processes inscribe law on the bodies of the law’s adherents. Surrendering the
body to the verdict of another demonstrates the internalization of the hierarchy that
is foundational to the workings of the legal system.
Following this path, in this study I analyse the rabbinic discussion of fasting
through the lens of control and authority, examining who has the right to make decisions about the health and safety of an individual’s body, and how these choices display different perceptions of autonomy and power.7 The article examines voices
from the Jewish legal tradition that grapple with the authority to interpret the pain of
another in the context of medical decision-making, addressing the conflict between
legal expertise and the individual knowledge of the self.8 The passage that will be the
focus of this article appears in the Babylonian Talmud in the context of a longer discussion of the injunction against eating on the Day of Atonement (Yom Kippur),
and considers the case of a person whose health is endangered by the fast that is the
central obligation of the day. The question at the heart of this unit has preoccupied
modern ethicists and legislators too: who determines the course of medical therapy
for a given patient? A physician has far more experience and medical knowledge, yet
many believe that the patient should be the one to make decisions concerning his or
her own body.9 This dilemma highlights the intersection between epistemology and
normativity: what kind of knowledge is needed to determine the treatment best
suited to a given patient? Scientific legal and medical knowledge or subjective, experiential knowledge, which can be located by the subject alone? And how does each
5 ISHAY ROSEN-ZVI, THE MISHNAIC SOTAH RITUAL: TEMPLE, GENDER AND MIDRASH (2012).
6 Mira Balberg, Rabbinic Authority, Medical Rhetoric, and Body Hermeneutics in Mishnah Nega’im, 35 AJS REV.
323 (2011).
7 While the term ‘autonomy’ may seem to some anachronistic when applied to rabbinic sources, I use it
throughout this paper not in the Kantian sense of moral autonomy, but rather as connoting a strong sense
of sovereignty over oneself, manifested in the capacity for making independent choices.
8 While the concepts of self, subject, individual, and person serve varying purposes in different cultural contexts and are used to indicate varying meanings in different disciplines, I use the term ‘self’ in one specific
way, following philosopher Richard Sorabji’s definition of the ‘self’ as referring to an embodied individual
who has both bodily characteristics and psychological states. See RICHARD SORABJI, SELF: ANCIENT AND
MODERN INSIGHTS ABOUT INDIVIDUALITY, LIFE, AND DEATH 4 (2006). For the variety of definitions used in different contexts, see Marcel Mauss, A Category of the Human Mind: The Notion of Person; The Notion of Self,
trans. W.D. Walls, in THE CATEGORY OF THE PERSON: ANTHROPOLOGY, PHILOSOPHY, HISTORY, Michael
Carrithers, Steven Collins and Steven Lukes, eds. 1-25 (1985); Eliot Deutsch, The Comparative Study of the
Self, in SELVES, PEOPLE, AND PERSONS: WHAT DOES IT MEAN TO BE A SELF? Leroy S. Rouner, ed. 95-105
(1992). See also the attempt to map out various scholarly definitions by Richard Sorabji, Soul and Self in
Ancient Philosophy, in FROM SOUL TO SELF, M. J. C. Crabbe, ed., 14-32 (1999).
9 Indeed, the idea that human beings must be allowed to exercise their autonomy lies at the very heart of
contemporary medical ethics and is one of the most dominant concepts under discussion in the scholarship in this area. For examples, see: H. TRISTAM ENGELHARDT, THE FOUNDATIONS OF BIOETHICS (1986); TOM
L. BEAUCHAMP AND JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS (1989). For a critique of this position, see EDMUND D. PELLEGRINO AND DAVID C. THOMASMA, FOR THE PATIENT’S GOOD: THE RESTORATION OF
BENEFICENCE IN HEALTH CARE (1988).
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kind of knowledge ground and justify different conceptions of the authority to determine what is right for a given patient?
The case discussed in this article is complicated by an additional factor, for it
addresses a scenario where the medical question arises on Yom Kippur, the most
sacred day of the Jewish calendar. The central and defining precept of Yom Kippur
requires full abstention from eating and drinking, on pain of being cut off from the
covenantal community (karet). The rabbis, however, permitted persons stricken by
illness to violate this obligation by eating when necessary. This capacity to make the
decision whether to eat or not is both a consequence of one’s power over the body
of another and simultaneously reinforces and expands that power.
Rabbinic sources record opposed and conflicting voices regarding who is authorized to define when the patient’s needs are dire enough to supersede the prohibitions
of Yom Kippur. In this article I trace three models for responding to life-threatening
illness on the Day of Atonement, revealing important developments within the world
of the ancient sages regarding such issues as the value of life and the individual’s ability to impact a system of religious law in questions pertaining to his or her own
body. While some commentators have drawn together the various sources into one
harmonious model, I engage in a close examination of the development of law from
the earliest corpus of the Mishnah to the final layer of the Babylonian Talmud, suggesting that different texts reflect different understandings of the problem at hand.
Tracing this historical progression, I demonstrate how changing perceptions of the
authority of expertise and of individual autonomy influenced the formation of law.
I then re-evaluate the innovative model found in the Talmud in the context of the
attitudes to self and suffering that emerged in late Antiquity. I propose that the
increasing autonomy granted to individuals to govern their own bodies should be
seen as part of the Late Antique emphasis on expressing the self by the choices taken
under the duress of hardship. Self-knowledge became a central concern, fully attainable only by making moral choices under circumstances of suffering. Similarly,
I argue that the talmudic discussion of fasting on Yom Kippur reflects a nexus of suffering, self-knowledge, and religious choice that benefits from comparison to contemporaneous Christian and Hellenistic ideals. Knowledge and the authority to
make religious decisions are thus deeply intertwined throughout the discussion, leading to a recurring tension throughout this examination between epistemology and
normativity. I conclude by locating this case study in the broader context of differences in the world views of the Mishnah and its commentaries concerning expertise,
authority, and their limits.
E X P E R T I S E A N D A F F L IC T I O N I N MI S HN A H YO MA
The last chapter of Mishnah Yoma, the tractate concerning Yom Kippur, discusses
three central themes: a. self-affliction, the central commandment of Yom Kippur
(units 1-5); b. preserving life in cases of doubt (6-7); c. repentance and atonement
(8-9). The majority of the chapter focuses on self-affliction by refraining from food
and drink,10 first defining the parameters of liability for transgressing the sanctity of
10 The first unit of the chapter relates that there are five forms of affliction on Yom Kippur: abstention from
eating and drinking, washing, anointing, wearing leather shoes, and sexual intercourse.
“The Heart Knows its Own Bitterness”
307
Yom Kippur by eating and then listing the exceptions to the prohibition: children
(4), pregnant women, and sick people (5) are all permitted to eat on Yom Kippur.11
Notably, a parallel legal corpus, the Tosefta, records a more stringent tradition concerning children on Yom Kippur, revealing that the rulings found in the Mishnah
were not universally accepted. The Tosefta relates that Shammai the elder, one of
the most esteemed rabbis, refrained from feeding his young son on Yom Kippur until
he was coerced to do so by the other sages.12 Similarly, another renowned sage,
Rabbi Akiva, used to interrupt the study session in the academy on Yom Kippur and
send people away so that they would go home and feed their children, suggesting
that some attendees were reluctant to do so.13 These brief stories demonstrate that
Mishnah Yoma 8:4, which proscribes the practice of preventing nourishment from
children on Yom Kippur, was not universally accepted within early rabbinic circles.14
The account that emerges from juxtaposing these rabbinic texts is that eating on
Yom Kippur was considered a severe prohibition, and the exemptions from this prohibition were used sparingly.15
Yet, another theme that runs through the chapter emphasizes that individuals
should not endanger themselves for the sake of a commandment, even one such as
fasting on Yom Kippur. Two passages focus on dangerous situations that might
occur on the Sabbath and rule that in any case of doubt, attempting to save a life
sanctions the violation of Sabbath laws.16 These laws stress that even when it is probable that the person will not be immediately endangered without transgressing
Sabbath law, nonetheless, the Sabbath should be violated. Thus, although the use of
medication is generally prohibited on the Sabbath, one rabbi is cited as advocating
that even “one who feels pain in his throat—they drop medicine into his mouth on
the Sabbath, because it is a matter of doubt regarding a danger to life, and any matter
of doubt regarding a danger to life overrides the prohibitions of the Sabbath”.17 The
next ruling emphasizes that even in a case where it is unclear, for various reasons,
11 On a related note, the Mishnah also rules that one seized by a craving (bulmus) is permitted to eat impure
foods on any day of the year (Mishnah Yoma 8:6).
12 Tosefta Kippurim 4:2. Yitzhak Gilat hypothesizes that Shammai’s ruling was based on a close reading of
Leviticus 23:29: “For any person who will not be afflicted (teuneh) on that day shall be cut off from his
kin”. See YITZHAK D. GILAT, STUDIES IN THE DEVELOPMENT OF THE HALAKHA 23 (1992).
13 See SAUL LIEBERMAN, TOSEFTA KI-PSUTA, v. 4, 812 (1962). Lieberman also cites further evidence
(Jerusalem Talmud Yoma 6:4, 43d; tractate Soferim 18:7) to support his conclusion that there was “an
ancient custom . . . that they afflicted children one or two years old”. Similarly, both the Samaritans and
the Karaites compel their children to fast on Yom Kippur. See Saul Lieberman, Tractate Soferim, the
Higger Edition, 15 QIRYAT SEFER 56-57 (1938); Gilat, supra note 12, 24 and n.12.
14 Indeed, the dispute between the Mishnah and the Tosefta continued to echo throughout the generations
both in the interpretation of this Mishnah and in the medieval legal codes. The famous medieval commentator Rashi rewrote the phrase, “they do not afflict them on Yom Kippur”, in the Mishnah with the
phrase, “they are not obligated to deny them food” (Babylonian Talmud Yoma, s.v. ein me’anin otan). R.
Nissim of Gerona, on the other hand, interprets the phrase as meaning that it is categorically forbidden
to deny a child food before the age prescribed in the Talmud’s interpretation of the Mishnah. See R.
Nissim of Gerona’s commentary to Alfasi 3a.
15 Similarly, Tosefta Kippurim 4:4 limits the broader sanction given in Mishnah Yoma 8:6 to one who has a
craving to eat any impure food and demands that the foods be fed to the patient according to a hierarchy
arranged from the less severe to the more so.
16 Mishnah Yoma 8:6-7.
17 Mishnah Yoma 8:6.
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whether the prohibited action will indeed save a life,18 one should always fear the
worst and violate the Sabbath on the chance that a life will be saved.19
These two rulings are bracketed by the unit concerning self-affliction, on the one
hand, and the unit about atonement, on the other, both of which are specific to Yom
Kippur. Nonetheless, the two rulings discussed are more general, encapsulating the
well-known principle that life must be preserved, even when doing so requires violating the Sabbath.20 They have thus held great ethical and legal significance for generations, and there is a tendency to read the rest of the Mishnaic chapter through the
lens of this principle as well.
However, the value of life and the sanctity of Yom Kippur collide head-on in the
talmudic discussion of Mishnah Yoma 8:5, which centres on the potential danger
caused by extensive fasting:
A sick person—they feed him according to experts, and if there are no experts
present, they feed him according to himself, until he says ‘enough.’21
This passage focuses on the exemption of a sick person from the laws of fasting on
Yom Kippur. The focus of the statute is the problem of determining the medical
needs of the patient. The difficulty seems to be the involvement of a great many
doubts. This is not a clear-cut case of violating the Sabbath in order to save a person
who has fallen into the sea22 or is buried under debris.23 The entire realm of illness
is distinct from such unequivocal cases of saving a life in that succumbing to illness is
a gradual process, in which the point of danger is not clearly demarcated. It may be
difficult to establish when the patient moves into the “danger-zone” where the prolongation of the fast becomes a threat to her life. To further complicate matters, on
Yom Kippur the very purpose of the fast is to cause affliction, as the first laws of the
chapter underscore. The rabbis, therefore, do not offer any standardized criteria to
determine when it is permitted to break the fast, but rather allow for ad hoc judgment by an expert. Only when there are no experts present does the patient have the
authority to make the decision herself.
What this text certainly is not doing is seeking out each and every case that might
lead to death and attempting to prevent it. Indeed, according to this passage it is not
at all evident that the value of human life overrides all other considerations. There
are other concerns at play here—the sanctity of Yom Kippur; the significance of fasting—that clash with the desire to save lives; and in cases of conflict there could be
18 For instance, if a building collapsed, and we have no knowledge of whether anyone is buried under the
debris, who it might be, and whether they are alive or not, the Mishnah rules—despite all these doubts
and the violation of the Sabbath—that the debris should be cleared away.
19 It is important to note that although the dictum “saving a life overrides the Shabbat” is accepted in rabbinic sources, that principle might be interpreted as referring to cases where there is a clear and certain
threat to life. In contrast, the principle advanced in Mishnah Yoma 8:6, i.e. that “any doubt regarding the
saving of a life overrides the Shabbat”, is a further extension of the former principle.
20 For an explicit formulation, see Tosefta Shabbat 15:15-17.
21 Mishnah Yoma 8:5.
22 Tosefta Shabbat 15:11. This chapter in the Tosefta contains a collection of rulings regarding dangerous
situations, which vary in the degree of their severity.
23 Mishnah Yoma 8:6.
“The Heart Knows its Own Bitterness”
309
different positions regarding the hierarchy of these values and the correct way to resolve the conflict among them. If the only purpose was to prevent death, the
Mishnah could have said so explicitly: “any concern over endangering lives overrides
the prohibitions of Yom Kippur,”24 yet it does not do so. Instead, the Mishnah instates the opinion of the experts as the determining factor and limits the significance
of the opinion of the patient.
The Mishnah’s veneration of expertise is not surprising, seeing as the early rabbis
who produced this text often emphasized the authority of experts in determining the
law. Law in the Mishnah lays claim to multiple aspects of Jewish life—aspects as diverse as religious practice, social relations with both Jews and non-Jews, as well as
civil and criminal law. In any and all of these realms, the rabbis present their legal expertise as indispensable to navigating the complex web of halakhah, or Jewish law.
The rabbis’ authority—and by extension, their power—relied on the supremacy of
their knowledge of the law. The rabbis also had to contend with the authority of
other professional experts in a variety of ways—sometimes relying on or deferring to
their expertise, sometimes co-opting it as their own.25
Yet the human body is unique as a site for the struggle between professional expertise and individual autonomy. The willingness of a patient to defer to an expert’s interpretation of her bodily needs reflects a deep acknowledgement of the power and
authority of the expert. Submitting the body to the decision of another demonstrates
the individual’s compliance and obedience to the expert in a way that no other normative activity can accomplish. From this perspective, it is not essential to determine
whether the Mishnah prescribes the principle of expertise for epistemological or normative reasons. The Mishnah may have viewed the experts as holding preferred knowledge,
or alternatively it may have favoured the decision-making powers of experts per se. It is
clear, however, that the Mishnah held expertise in high regard, so much so that the plain
reading of the Mishnah allows for the experts to determine that the patient should continue to fast despite the patient’s concern for his or her own life.
IN N O V A T I NG T H E PA R A M O UN T V A L UE OF L IF E
While the Mishnah uses the more general term ‘expert’, by the later period of the talmudic commentaries the expert was unequivocally defined as a physician.26 In this
framework, the potential conflict between the opinions of doctor and patient, not explicitly addressed in the Mishnah, takes centre stage. The Babylonian talmudic commentary commences by introducing the opinion of the early third-century sage
Rabbi Yannai:
Said Rabbi Yannai: If the patient says he needs [food] and the doctor says he
does not need—they feed him according to his own assessment.
24 As it does regarding the Sabbath—see Mishnah Yoma 8:6.
25 Tzvi Novick has described the rabbis’ encounters with agricultural experts in Tzvi Novick, A Lot of
Learning is a Dangerous Thing: On the Structure of Rabbinic Expertise in the Bavli, 78 HEBREW UNION C.
ANN. 91 (2007); idem, ‘Like an Expert Sharecropper’: Agricultural Halakhah and Agricultural Science in
Rabbinic Palestine, 38 AJS REV. 303 (2014). For the rabbis’ self-portrayal as medical experts, see Balberg,
supra note 6.
26 I will return to the distinction between the two terms below.
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What is the reason for this? The heart knows its own bitterness (Pr 14:10).
If the doctor says he needs food and the patient says he does not need—they
feed him according to the expert.
What is the reason for this? He has been seized by a stupor.27
This passage is composed of the interweaving of an early amoraic dictum together
with a later, post-amoraic commentary (italicized above), an entwining which creates
a logical difficulty in reading the passage as a whole.28 I will return to the problems
in the later layer, but first I want to note that extracting the earlier statement from
the redactional interjections reveals that Rabbi Yannai’s original statement was composed of two symmetrical principles:
1. If the patient says he must eat and the doctor/expert says he need not—the
patient’s opinion is accepted.
2. If the doctor/expert says the patient must eat and the patient says he need
not—the doctor/expert’s opinion is accepted.
This is corroborated by the parallel version found in the Jerusalem Talmud, which
reads:
1. If the patient says, ‘I can [fast]’ and the doctor says he cannot—they listen
to the doctor.
2. If the doctor says he can [fast] and the patient says he cannot—they listen
to the patient.29
The phrase “can” in the Jerusalem Talmud serves as shorthand for “can continue to
fast” and therefore parallels the Babylonian Talmud’s “need not [break the fast]”.
The opinion cited in the name of Rabbi Yannai, then, introduces a new matrix, unaddressed in the Mishnah. In contrast to the Mishnah, Rabbi Yannai explicitly discusses
situations of conflict between the opinions of the physician and the patient. As we
adduced above, the Mishnah considers the presence of an expert to be the determining factor; only if no expert is present does the Mishnah allow for reliance upon the
patient’s assessment. Thus, while both expert and patient would be satisfied in a case
of agreement between them, in any case of conflict the physician’s opinion would
27 A state of numbness or near-coma, a cognate of the Syriac
See MICHAEL SOKOLOFF, A SYRIAC
LEXICON: A TRANSLATION FROM THE LATIN, CORRECTION, EXPANSION, AND UPDATE OF C. BROCKELMANN’S
LEXICON SYRIACUM 1654 (2009). See also Babylonian Talmud Eruvin 68a; Babylonian Talmud
Niddah 37b.
28 Critical Talmud study distinguishes between the statements of the rabbinic sages called the amoraim
(third-sixth centuries) and the redactional material that weaves the earlier statements together (seventh
century). The criteria for distinguishing between amoraic dicta and redactorial elaboration are detailed in:
Shamma Friedman, A Critical Study of Yevamot X with a Methodological Introduction, in TEXTS AND
STUDIES: ANALECTA JUDAICA I, ED. HAIM Z. DIMITROVSKY, 275-441, 301-308 (1977). The phrase beginning
with “what is the reason for this” is: a. Aramaic, in contrast to the earlier statement formulated in
Hebrew; b. an explanatory phrase; c. does not appear in all manuscripts; d. its omission creates a
smoother reading of the passage; and e. refers to a statement appearing later on in the talmudic unit.
These characteristics all indicate that the italicized lines are the product of the later redactors.
29 Jerusalem Talmud Yoma 8:4, 41a.
“The Heart Knows its Own Bitterness”
311
override that of the patient. According to Rabbi Yannai, however, the expert’s opinion prevails only in a case where the patient claims he need not eat, while the doctor
is fearful that the patient endangers himself. In such a scenario, the opinion of the
physician overrides that of the patient. In contrast, when the expert argues that the
patient does not need to eat but the patient believes himself to be in danger, Rabbi
Yannai differs from the Mishnah and argues that it is impossible not to listen to the
patient, and therefore the patient’s opinion overrules that of the physician.
How should we understand this later rabbi’s ruling with respect to the earlier statute of the Mishnah? The most reasonable way to appreciate Rabbi Yannai’s position
is to recall the context of the passage under discussion. As noted above, the entire
Mishnaic chapter is laced with the principle that saving a life overrides the value of
observing both the Sabbath and Yom Kippur. Rabbi Yannai thus presumably read
the individual law in light of its context and perceived it too as an attempt to save
the patient’s life. Therefore, it matters not whether it is the patient or the doctor
who claim that the patient must eat. Any opinion that requires sustenance for a patient at risk overrides an opinion that does not. According to Rabbi Yannai, the question is thus not a matter of expertise, but simply a matter of precaution—the
opinion maintaining that the patient is in danger is granted more weight, regardless
of its source.30
The Jerusalem Talmud also clearly understood the central concern here to be the
preservation of life. After introducing an anonymous statement paralleling that of
Rabbi Yannai, the Jerusalem Talmud presents another case to be determined on the
basis of the Mishnah:
The question arises concerning a case where the patient says, ‘I can [fast]’ and
the doctor says ‘I do not know.’
Rabbi Abahu in the name of Rabbi Yohanan [said]: This is like a case of doubt
concerning lives, and any case of doubt concerning lives overrides the prohibitions of the Sabbath.31
This scenario highlights the problem of uncertainty that is so central to this discussion. In this case the patient believes he can fast, while the physician is unsure of the
correct course of action. The redactors of the Jerusalem Talmud clearly elevated the
concern for preserving life and read the Mishnah through this lens, discarding
the earlier emphasis on professional expertise. They saw no contradiction between
the position of the Mishnah and that of Rabbi Yannai, regarding the later rabbi’s
statement as merely elaborating upon the earlier rule.32 They therefore extended the
principle to an additional case, in which the patient asserts that he can continue to
fast, while the physician is unsure of the correct course of action. Under these circumstances, doubt plays an even greater role than in the original statement of Rabbi
Yannai. While in Rabbi Yannai’s scenario the patient and the physician each state
30 Or conversely, we might suggest that Rabbi Yannai believes that the expertise of the patient, in assessing
his own health, is not inferior to expert opinion, and therefore he chooses the more cautious course of action by relying on the more lenient expert.
31 Jerusalem Talmud Yoma 8:4, 41a.
32 See J.N. EPSTEIN, INTRODUCTION TO THE MISHNAIC TEXT 630 (2000).
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their own positions definitively, the Jerusalem Talmud’s case is rife with uncertainty.
Nonetheless, since the concern for saving a life is so great, even the possibility of risk
raised by the physician overrides the patient’s own view that he is not in danger. The
Jerusalem Talmud emphasizes its great concern for the preservation of life by explicitly invoking the principle that any case of doubt concerning lives overrides the prohibitions of the Sabbath. In this model, it is neither preferred knowledge nor
authority that determines the decision for the patient to eat, but rather caution. Due
to the fear for the patient’s life, the criterion for choosing which assessment to accept
is the criterion of leniency.
THE HEART KNO WS I TS OWN B IT TER N ESS
Subsequent to presenting the early amoraic position, the Babylonian rabbis continued to debate whether the term ‘experts’ in the Mishnah specifically denotes a plurality of experts. The underlying question was whether, according to the Mishnah, the
experts overrule the patient due to a quantative advantage or a qualitative one. At the
conclusion of this interrogation, a late amoraic position is presented:
Mar son of Rav Ashi said: In any case where [the patient] said ‘I need [to eat,]
even if there are a hundred who say he need not—we listen to him. What is
the reason? The heart knows its own bitterness (Proverbs 14:10).
Mar son of Rav Ashi, a Babylonian rabbi who lived in the mid-fifth century (prior to
the talmudic redactors), argues that even when there are as many as one hundred experts who claim that the patient need not eat, if the patient himself says he must, it is
the opinion of the patient that prevails.33 The rationale is provided by a section of a
verse from Proverbs 14:10: “the heart knows its own bitterness and another cannot
share in its joy”.
While Rabbi Yannai’s ruling could be construed as referring to a case where a single doctor disputes the patient’s opinion, Mar emphasizes that when a patient says
he needs to eat, his opinion overrides all others. The value of life is so great that the
patient’s intimate, individual assessment of his needs is privileged over the “objective” knowledge corroborated by the alignment of 100 experts.
The case Mar addresses is that where an expert—or even 100 experts—declare
that the patient need not eat, while the patient says he must. In contrast to the
Mishnah, which determines that the patient should refrain from eating in such a
case, Mar argues that the patient should eat. Notably, the explanation he gives differs
from the earlier notion of the importance of preserving life. Mar’s emphasis, instead,
is on knowledge: only the patient has the required knowledge to determine whether
he truly needs to eat.
33 This principle may be related to the more general legal notion found in rabbinic literature that “a litigant’s
admission is equal to one hundred witnesses” (Tosefta Bava Metzia 1:10; Tosefta Bava Batra 10:1;
Babylonian Talmud Gittin 40b, 64a; Babylonian Talmud Qiddushin 65b; Babylonian Talmud Bava
Metzia 3b). Concerning this principle, see Shimshon Ettinger, The Admission of a Litigant in Jewish
Jurisprudence, in STUDIES IN HALAKHA AND JEWISH THOUGHT, Moshe Beer, ed., 143 (1994).
“The Heart Knows its Own Bitterness”
313
This significant transition requires explanation. There are two possible ways to
understand the statement made by Mar. The narrower reading focuses on medical
knowledge and regards the assessments of either doctor or patient as a means of ascertaining whether the patient is truly in need of sustenance. On this reading, it is
agreed that if it can be established in some way that the patient needs to eat in order
to be sustained, then the fast should be broken and the patient fed. Accordingly, Mar
may be seen as expanding and emphasizing the earlier dictum cited in the name of
Rabbi Yannai. Mar merely wishes to stress that saving a life is so significant that even
if there is only one person who says the patient should eat, while one hundred others
say he should not, the patient is permitted to eat. According to this view, the same
would be true of the inverse scenario: if the patient and even 100 doctors said he
need not eat, but one doctor said he should, then the patient should eat (and perhaps even be coerced to do so). There are two difficulties with this reading: first, it
assumes that Mar superfluously reiterates what was already established by an earlier
and more authoritative sage—an uncommon occurrence in talmudic literature.
Second, it minimizes the significance of the verse “the heart knows its own bitterness”. The use of the verse implies that what interests Mar is not only the preservation of life, but rather the knowledge that allows only the patient to determine
whether to fast or not.
Examining the verse used by Mar to substantiate his ruling allows for a more expansive reading. I have translated the verse as “the heart knows its own bitterness”,
yet a more literal rendering would be “the heart knows the bitterness of its
soul (nefesh)”. The word nefesh has a number of meanings. First, it can mean ‘self’, as
in my original translation.34 It can also mean ‘life’, and this is the way it is often used
in rabbinic Hebrew, such as in the expressions ‘laws of life’ (dinei nefashot), referring
to criminal cases liable for the death penalty; ‘threat to life’ (sakanat nefashot); or
‘saving life’ (pikuakh nefesh). From this perspective, the verse employed by Mar bar
Rav Ashi stresses the individual’s superior medical knowledge, and therefore serves
to explain why one person’s self-assessment should overcome the ruling of one hundred experts. Because the rabbis were so concerned about any threat to life, they
allowed for one hundred experts to be rejected in the face of one dissenting
judgment.
Moreover, the verse has an even stronger resonance within the context of Yom
Kippur. In biblical Hebrew, the heart is often related to the intellect (1 Kings 3:12,
Proverbs 16:23, Psalms 64:7).35 When ‘heart’ appears together with knowledge, it
34 In many ancient Mesopotamian cultures, the heart represented the individual and the centre of his being;
it was considered the seat of emotion, will, and reflection. In ancient Egypt, God spoke to mortals
through the heart, but the heart is also where God can be known and his will recognized. God can even
dwell personally within the heart, and according to Hellmut Brunner, this represents an early stage in the
idea of a conscience (79 THEOLOGISCHE LITERATURZEITUNG 697-700 (1954). Yochanan Muffs demonstrates
that in the Elephantine legal papyri, lbb (heart) stands by synecdoche for the person. See YOCHANAN
MUFFS, STUDIES IN THE ARAMAIC LEGAL PAPYRI FROM ELEPHANTINE 176-177 (1969).
35 The English language does not have a proper equivalent to the biblical term lev. The heart in biblical anthropology controlled both the body’s functions and the psyche’s functions. As biblical scholar Bruce
Waltke notes, “No other English word combines the complex interplay of intellect, sensibility, and will”.
See BRUCE K. WALTKE, THE BOOK OF PROVERBS: CHAPTERS 1-15 91 (2004).
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has a clear ethical connotation (Proverbs 12:23, Ecclesiastes 8:5).36 Indeed, the heart
can mean the conscience, the authority within the individual that makes ethical judgments.37 The heart is the seat of both vices and virtues, and therefore penitent return
is also seated in the heart (Deuteronomy 29:3, Jeremiah 24:7, Ezekiel 11:19).
Furthermore, the nexus of the words ‘bitter’ (mar) and ‘soul’ (nefesh) appears in the
Bible primarily in the context of psychological anguish. Thus, Hannah cries out in
the ‘bitterness of her soul’ (1 Samuel 22:2), as do Isaiah (38:15) and Job (3:20;
7:11; 10:1),38 while Proverbs uses the term ‘bitter of soul’ as a parallel to the ‘desolate’ (31:6). It thus seems clear that our verse, in its original context, refers to
psychological, rather than physical, distress,39 amplifying its resonance in the context
of the talmudic discussion of the Day of Atonement.40
More importantly, a number of rabbinic sources also cite Proverbs 14:10 in discussions of self-knowledge—specifically knowledge of religious guilt. Thus, a midrash on Psalms cites this verse to argue that “it is the heart that shames a person, for
he knows what he did and is ashamed of himself”, and as an example refers to eating
sanctified food in a vessel intended for unsanctified food. Since both foods are identical, only the owner of the food and the vessel would know whether he had sinned,
and only he could recognize and atone for his guilt.41 Similarly, R. Jonathan interpreted the verse by asking “Why does a person smell the stench of brimstone and his
soul recoils? Because the soul knows that it is destined to be judged by it [brimstone]”.42 Finally, another midrash inquires why King Saul did not divine whether he
should go to war by referring to the Urim and Tummim (objects placed in the high
priest’s breastplate), instead consulting with an illicit necromancer.43 The rabbis
reply that Saul was fearful due to his role in the prior massacre of the priests of the
city Nov and was reluctant to face God via legitimate channels of communication,
36 The heart is used metaphorically to convey abstract ideas, such as emotion, thoughts, and knowledge; it
can be sick, and often this sickness has ethical overtones (Proverbs 13:12, Isaiah 1:5, Lamentations 1:22).
The Hebrew Bible scarcely ever uses the term lev for the “heart” as a physical organ; when it does refer to
the physical body, it conveys a broader sense of the person’s breast. More usually, the heart functions as a
part of the composite being of the human, together with flesh and soul (Genesis 6:17, 7:15;
Deuteronomy 28:65; Job 34:14).
37 See 1 Kings 8:38 “afflictions of the heart,” indicating pangs of conscience.
38 See also Ezekiel 27:31, Job 27:2.
39 As biblical scholar William McKane observes, this verse is “a comment on the privacy of joy and sorrow.
There is an experience of bitterness which is so inward and private that the individual must bear it in
loneliness and cannot communicate it even to those who are closest to him”. See WILLIAM MCKANE,
PROVERBS: A NEW APPROACH 471 (1970).
40 Moreover, the rabbis often quote one verse to invoke others in its proximity. It is, therefore, important to
notice that a few verses later, in the very same chapter, appears the verse “when trouble befalls him, a
wicked person is thrown down, but a righteous person finds refuge even in death” (32). Waltke interprets this
verse as concerning a circumstance in which the righteous person proves himself to be a worshiper of
God precisely in his dying: “The wicked person, who perishes through his evil, does not trust in the Lord
even when dying, and the righteous, who trust in the Lord when dying, are not thrown down by any evil,
including death” (Cf. Genesis 5:24; Psalms 49:14-16, 73:24). See WALTKE, PROVERBS, 608. The medieval
commentator Rashi, too, comments on this verse: “When he will die, he is confident he will come to the
Garden of Eden”.
41 Midrash Psalms 119:79.
42 Pesiqta deRav Kahana 12:9.
43 I Samuel 28.
“The Heart Knows its Own Bitterness”
315
lest he invite upon himself divine criticism and wrath. The verse that is brought in
support of this interpretation of Saul’s religious guilt is “the heart knows its own bitterness”.44 These sources reflect a rabbinic tradition that interpreted the verse from
Proverbs as referring to individuals’ awareness of their own religious guilt.
I propose, then, that in our context, the verse can be viewed as serving two separate but interconnected functions: first, it anchors the argument that favours the individual’s own medical assessment of his condition over that of an external agent.
Second, the verse relates the discussion of illness and self-knowledge to Yom Kippur
in a more fundamental way. The verse highlights that eating on Yom Kippur is not
merely transgressing a commandment, but rather has larger religious significance.
Fasting is not merely a normative obligation but also a requirement for effecting
atonement. A patient who feels unwell must overcome her own sense of transgression before violating the fast, acknowledging that by relinquishing the most important obligation of the most sacred day of the Jewish year, her atonement will not be
complete.
The verse thus serves to emphasize that the patient is the only person capable of assessing the full physiological and religious consequences of her action, and therefore it
is she who can make the decision to eat. The patient’s preferred epistemological position leads to a preferred normative one. Even one hundred experts can merely assess
the patient’s medical condition, while the patient herself has access to additional, supremely subjective knowledge, which in this case is crucial for deciding the law. Thus,
the conflict between the physician and the patient is not only a clash between external
and internal assessment, or between objective and subjective knowledge, but rather
may also reflect an encounter between two conceptions of religious decision-making.
According to the Mishnah’s authoritative conception, religious choice must be determined by external specialists. According to a later conception, however, religious
choice is an internal matter, placed in the individual’s hands; hence, only the individual
can weigh the germane evidence and make the final decision.
C O N S T R U C T I O N B Y R ED A C T I O N
While it is certainly possible that Mar himself only intended the narrower reading
focusing on the patient’s medical knowledge, I propose that the later redactors of the
Talmud understood his statement as concerning a broader sense of religious knowledge. In order to identify and analyse this transition, I will offer a close re-reading of
the passage that interweaves the words of Rabbi Yannai with those of the postamoraic redactors:
Said Rabbi Yannai: If the patient says he needs [food] and the doctor says he
does not need—they feed him according to his own assessment.
What is the reason for this? The heart knows its own bitterness (Pr 14:10).
If the doctor says he needs food and the patient says he does not need—they
feed him according to the expert.
What is the reason for this? He has been seized by a stupor.
44 Leviticus Rabbah 26:7.
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Rabbi Yannai’s symmetrical statement, encapsulating the notion of the paramount
value of life, is complicated in this section by two distinct and contradictory explanations.45 Rabbi Yannai’s first statement, “if the patient says he needs [food] and the
doctor says he does not need—they feed him according to his own assessment”,
is explained by the anonymous redactional voice with the verse “the hearts knows its
own bitterness”. This first part of Rabbi Yannai’s teaching coheres with the narrower
understanding of Mar that focuses solely on the patient’s preferred medical knowledge. The difficulty with this explanation, however, is that it cannot provide
the underlying rationale for the converse statement: “if the doctor says he
needs food and the patient says he does not need—they feed him according to the
expert”. Here, the narrow reading of Mar breaks down. Therefore, the redactors
were forced to formulate a different explanation for the second part of Rabbi
Yannai’s dictum:
The doctor says he needs food and the patient says he does not need—they
feed him according to the expert.
What is the reason for this? He [the patient] has been seized by a stupor.
The redactional voice explains that the reason the doctor’s recommendation is
endorsed, despite the general principle that the patient recognizes his own needs
best, is that there are certain cases where the patient’s assessment of his own situation is flawed, due precisely to the extent of his illness. Had the redactors accepted
the preservation of life as the overriding principle, they should have explained that
the doctor’s opinion is upheld because of caution regarding lives. Instead, they were
compelled to offer an explanation that could counter their understanding of “the
heart knows” as referring to the supremacy of the patient’s knowledge of her own
condition.
By recasting Rabbi Yannai’s teaching in this manner, the Talmudic redactors created a mirror image to that developed by the Mishnah: while for the Mishnah, the
experts are the ideal source of knowledge, and only if they are not accessible does
one turn to the sick individual, for the talmudic redactors, the individual is the ideal
source of knowledge, and only if he is not accessible (due to extreme illness), does
one turn to the experts. The redactors thus managed to rewrite the original statement made by Rabbi Yannai in the spirit of the idea that “a heart knows its own bitterness”, but made a significant concession by allowing for the individual’s opinion to
be rescinded when it is determined that he is too ill to assess his own needs.46
Paradoxically, the redactors ended up paying a dear price for their reinterpretation,
conceding that there are cases where the patient might become so ill that he cannot
accurately assess his own condition. While introducing the notion of patient
45 For a review of the criteria distinguishing the two layers of the text, see supra, note 28.
46 A number of manuscript versions affix an additional variant here, reasoning that “doubt concerning lives
is a cause for leniency”. This addition makes the underlying rationale of Rabbi Yannai’s statement explicit,
and it highlights the conflict between this reason and the rationale encapsulated in the verse “the heart
knows its own bitterness”.
“The Heart Knows its Own Bitterness”
317
autonomy, the redactors also opened the door to a form of suppressing the patient’s
opinion. Nonetheless, if we follow the redactors’ logic consistently, it appears that
any case where the patient does not lose control of his faculties should be governed
by the idea that “the heart knows”, and the patient’s opinion should overrule that of
the physician. It is clear, then, that the redactors understood Mar’s opinion not
merely as an extension of Rabbi Yannai’s position, but rather as innovating a novel
principle—what we might call in modern terms the idea of patient autonomy.
This conclusion is supported by another talmudic passage that appears directly
prior to the unit concerning the patient in need of sustenance. The Mishnah passage
about the sick person immediately follows a statute ruling that a pregnant woman
should be fed according to her own assessment of her needs, with no need to consult
with experts. Yet the Talmud’s commentary to this passage recounts the stories of
two pregnant women who were seized by cravings on Yom Kippur but were encouraged by prominent rabbis in their surroundings to refrain from eating.47 Whereas the
first woman was appeased when reminded of the sanctity of the day and refrained
from eating, the second woman did not. The Talmud relates that the first woman
was rewarded with a son who became a great sage, while the second was granted a
son who became a wicked businessman, exploiting the poor by raising the price of
food products during times of hunger.48 The warning is clear: eating on Yom
Kippur, even under justified circumstances, is a risky business that should preferably
be avoided. It is also presented as an action which, if not sinful, nonetheless may
bring about undesirable consequences.
These narratives reflect the deep tension between the highly esteemed value of
preserving life and the persistent concern about the spiritual ramifications of violating the fast of atonement, even under formally justified circumstances. Moreover, by
placing these narratives directly before the discussion of the patient in need of eating,
the Talmud’s redactors indicated (whether consciously or not) that the problem of
eating on the Day of Atonement cannot be treated as a medicolegal question alone,
but is necessarily entangled with the spiritual implications of fasting on Yom Kippur.
Indeed, if we look back at the various sources we have examined throughout this
analysis, we can see how the late redactors could have read this discussion, and specifically Mar’s opinion, as relating to spiritual-religious rather than solely medical
knowledge. Recall that the Mishnah passage under discussion here is bracketed first
by a unit on self-affliction, as the central mode of atonement on Yom Kippur, and
then by a series of passages about repentance and atonement. The unit about the
pregnant woman and the sick person appears between these two units, serving as a
transition point between them.
Furthermore, we saw that the Mishnah talks about ‘experts’ as determining the
law. Yet what kind of experts does the Mishnah mean to invoke? The term ‘expert’
(baqi) has traditionally been translated as ‘physician,’ in accordance with both
Talmuds’ interpretations. It is conceivable, though, that according to the Mishnah
47 Babylonian Talmud Yoma 82b-83a. These narratives are also found in the Jerusalem Talmud Yoma 8:4,
45a.
48 The punishment in this story is clearly meant to fit the crime: the mother could not withstand the fast
and, therefore, transgressed by eating. As a result, her son evolves into a person so obsessed with food
that he transgressed by keeping food for himself and causing others to go hungry.
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the expert denotes a rabbinical authority as well. The term baqi appears 12 times in
tannaitic literature, usually referring to legal expertise.49 Moreover, tannaitic sources
often explicitly refer to physicians by using the unequivocal term ‘doctor’ (rofe), indicating that the alternate term ‘expert’ may signify something other than ‘physician’
alone. It is possible, then, that the redactors understood the ‘expert’ of the Mishnah
to be proficient in both religious law and medicine, a kind of rabbinic physician, similar to Galen’s notion of a “philosopher-physician”.50 However, whether the Mishnah
understood the experts to be medical or medicolegal experts, it is striking that this
early text is concerned first and foremost with the authority and decision-making
powers engendered by that expertise.
Reading the Mishnah in comparison to Rabbi Yannai’s ruling highlighted the fact
that the Mishnah is not necessarily concerned primarily with the risk to life. Instead,
the Mishnah reveals its confidence in the decision-making powers of the experts:
they are the only ones capable of weighing all relevant evidence and making the best
decision. By contrast, Mar’s opinion emphasizes the individual’s knowledge, rejecting
the importance of the experts. Moreover, as we saw above, the verse Mar cites holds
strong connotations of guilt and repentance. Examining the various building blocks
of the sugya through the lens of the verse could certainly have yielded an understanding focused less on medical knowledge and more on spiritual recognition. The redactors, surveying these sources, understood the central thrust of both the verse and
Mar’s ruling to mean that only the patient can make the decision whether to fast or
not because only the patient has the complete information regarding his guilt and
need for atonement. The redactors read the discussion as focusing on the individual
rather than the expert and on spiritual knowledge rather (or, as well as) medical
knowledge.
This transition raises an interesting question concerning one of the cases of conflict raised by Rabbi Yannai, where the physician states that the patient must eat
while the patient wishes to refrain from eating. Although neither Mar nor the redactors explicitly address this scenario, taking the notion of “the heart knows its own bitterness” seriously might suggest that such an opinion would permit the patient to
refrain from eating, even when continuing the fast would put him at risk. The patient
is not obligated to listen to the physicians who warn him of the danger in which he
puts himself, and neither are the onlookers obliged to coerce the patient to eat.
Indeed, while this scenario is not explicitly raised in the sugya, it formed the explicit basis for a controversial precedent in the Middle Ages. The medieval German
Tosafist Rabbi Isaac ben Asher, known as the Riba,51 was taken ill on Yom Kippur
and was warned by his physician that if he continued the fast he would surely die.
49 Mishnah Eruvin 4:8 “expert in law”; Mishnah Sanhedrin 7:2 “the courts of that time were not expert”;
Mishnah Tohorot 10:1 “expert in the laws of hesset”; Tosefta Keritot 5:1 “expert in the chambers of
Torah”; Tosefta Sanhedrin 9:1 “expert in intercalation;” “expert in hours”; Tosefta Negaim 1:1-2 regarding expertise concerning blemishes; Tosefta Yevamot 12:11, Tosefta Nazir 5:1, Tosefta Ohalot 4:14 all
discuss the expertise of individual sages in the law.
50 For the notion of a ‘philosopher-physician’ (iatrophilosophos), see Barry Baldwin, Beyond the House Call:
Doctors in Early Byzantine History and Politics, 38 DUMBARTON OAKS PAPERS 15-19 (1984); John
Scarborough, Roman Medicine to Galen, in AUFSTIEG UND NIEDERGANG DER RÖMISCHEN WELT II. 37.1 3-48
(1996). On the rabbis as medicolegal experts, see Balberg, supra note 6.
51 E.E. URBACH, THE TOSAPHISTS: THEIR HISTORY, WRITINGS AND METHODS 141-148 (1968).
“The Heart Knows its Own Bitterness”
319
Riba, nonetheless, refused to eat, resulting, in fact, in his death.52 Rabbi David ben
Zimra (Radbaz) was asked on the basis of this case whether it is appropriate to be
stringent in observing the commandments, even at the price of endangering one’s
life.53 Radbaz forcefully expressed his objection to this notion, yet nonetheless presented a legal argument intended to clear Riba of any suspicion of ignoring the law
by applying the verse “the heart knows its own bitterness,” and arguing that in certain cases a patient’s certainty concerning his demise may outweigh the doctors’ uncertainty with respect to the chances of recovery. Radbaz also made very clear that
his justification of Riba’s conduct was not meant to be taken as precedent for the
general public, but rather was confined to rare cases involving individuals of significant spiritual stature.54
In sum, tracing the development of the rabbinic debate over fasting suggests that
it is possible to identify three distinct models of relating to the intersection of the
sanctity of Yom Kippur and the risk to life. The Mishnaic model relied upon the experts’ authoritative decision, even when it contradicted the patient’s opinion that he
was in need of food. The amoraic position, by contrast, focused on the threat to life
and emphasized that any doubt—raised by either patient or physician—is sufficient
to be cautious and permit the patient to eat. The post-amoraic redactors diverged
from this position, emphasizing instead the importance of the patient’s own knowledge in determining whether she should eat. I proposed that there are two separate
but interrelated transitions throughout this rabbinic conversation. First, there is a
shift from the authority of experts to the autonomy of individuals. However, I believe
we can also point to a second, more subtle, shift that occurs between the amoraic
and post-amoraic periods. In contrast to the opinions of the earlier sages who understood the Mishnah as referring to medical knowledge alone, I offered a reading of a
new perception in the post-amoraic layer, reinterpreting earlier sources so as to transition the discussion to a conversation about the religious-spiritual conception of
fasting.
The correlation between fasting and atonement was not, of course, limited to one
day a year. Rather, for both Jews and non-Jews in late Antiquity, suffering constituted
one of the central paradigms of religious understanding and conceptualization of the
self. By delving deeper into the religious significance rabbinic Jews accorded to the
connection between suffering, death, and atonement, we will shed further light on
the talmudic dispute at hand, exploring the context in which suffering, knowledge
and choice became inextricably intertwined.
S U FF E R I N G A N D R E D E MP T IO N I N LA T E A N T I Q U I T Y
Just as the commandments were seen as a vehicle to receiving the reward of eternal
life, so too a number of sages are described as embracing suffering as a redemptive
medium. Thus, according to the Babylonian Talmud, the famous sage Rabbi Akiva
52 PISKEI RECANATI, no. 166; regarding this case, see: Eliezer Ben Shlomo, Rejecting Medical Therapy on
Grounds of Piety, 49-50 ASSIA 173 (1990), where he contextualizes Riba’s conduct as part of a typically
Ashkenazic approach to the relationship between medicine and halakhah.
53 RESPONSA RADBAZ, 3:444, cf. 4:67.
54 Regarding this episode, see: DANIEL SINCLAIR, JEWISH BIOMEDICAL LAW: LEGAL AND EXTRALEGAL DIMENSIONS
166-167 (2003).
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interpreted the verse “And you shall love the Lord with all your heart and with all
your soul” (Deuteronomy 6:5) as demanding a love of God “even if He takes your
soul”,55 and the same Rabbi Akiva rejoiced when he saw his master suffering on his
deathbed, for he preferred that the master’s reward be withheld from him in life so
that he might receive it after his death.56 Significantly, when the legal commentary
Sifre Deuteronomy praises Abraham as being the first to receive suffering as a form
of divine love, the suffering it describes is that of hunger, embedded in the verse
“There was a famine in the land and Abram went down to Egypt” (Genesis 12:10).57
Hunger, then, was considered a form of suffering that was an expression of divine
love. And if hunger pangs were seen as a sign of divine love, rejecting the suffering of
hunger could certainly have been interpreted as a rejection and rebuff to God.
Indeed, if suffering is a sign of God’s love and a bitter foretaste of the sweet rewards
of the world to come, it becomes clearer why one would choose to suffer voluntarily.
Suffering was seen by the rabbis not only as a sign of divine love, but also as a
form of repentance. The end of the tannaitic period records stories of sages who intentionally invited suffering upon themselves out of fear that they had unknowingly
transgressed one of the commandments of the law, or even without such a concern.58 The doctrine of suffering is also closely related to the notion that death itself
atones for sin, as a passage in Mishnah Yoma states: “death and Yom Kippur effect
atonement [when combined] with repentance”.59 In the Tosefta, a number of sages
are cited as offering death or suffering as a complementary remedy to repentance.60
The implications of this view are extended by a number of rabbinic scholars. For instance, the early fourth century sage Rav Ami established that “there is no death
without sin, nor suffering without iniquity”.61 In the Babylonian Talmud, Rav Hisda
relays that “if a person sees that suffering has come upon him, let him investigate his
deeds”.62 Suffering was regarded as both an indication of transgression and as its
punishment. For rabbinic Jews who held this position, then, suffering and death were
55 Babylonian Talmud Berakhot 61b. On this story of Rabbi Akiva’s martyrdom, see Arnold Xavier
Goldberg, Das Martyrium des Rabbi Aqiva. Zur Komposition einer M€artyrerz€ahlung (bBer 61b),
12 FRANKFURTER JUDAISTISCHE BEITRA€ GE 1 (1984); Daniel Boyarin, A Contribution to the History of
Martyrology in Judaism, in ATARA L’HAIM: STUDIES IN THE TALMUD AND MEDIEVAL RABBINIC LITERATURE IN
HONOR OF HAIM ZALMAN DIMITROVSKY, Daniel Boyarin et. al., eds., 3 (2000); idem, DYING FOR GOD:
MARTYRDOM AND THE MAKING OF CHRISTIANITY AND JUDAISM 106-122 (1999).
56 Babylonian Talmud Sanhedrin 101a. Concerning this story and its context within Rabbi Aqiva’s broader
worldview, see E. E. URBACH, THE SAGES: THEIR CONCEPTS AND BELIEFS 444 (1979).
57 Sifre Deuteronomy 311.
58 Urbach, supra note 56, 394-395. See, e.g. Babylonian Talmud Bava Metzia 84b-85a.
59 Mishnah Yoma 8:8. This is part of the tradition concerning “four divisions of atonement”, for which see
AVRAHAM ADERET, FROM DESTRUCTION TO RESTORATION: THE MODE OF YAVNEH IN RE-ESTABLISHMENT OF
THE JEWISH PEOPLE 158-167 (1997).
60 Tosefta Yoma 4:6-9.
61 Leviticus Rabbah 37:1. Urbach links this homily to the matter of expiating iniquity central to Yom
Kippur. “The fact that death and suffering are linked by R. Ami to prooftexts, which focus on the sins of
the individual (Ezek 43:20; Ps 89:33) “shows that Rav Ami did not intend to explain the general phenomenon of death, its source, and origin, but rather its place and function in the life of each individual person”. See Urbach, supra note 56, 431.
62 Babylonian Talmud 5a. Rav Hisda was an early fourth century Babylonian amora. Another tradition relays
this statement in the name of the sage Rava, who lived one generation later.
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321
not merely theoretical possibilities but rather, under certain circumstances, the only
possible form of atonement.
Jews were not the only ones preoccupied by the theological and cultural meanings
of suffering in late Antiquity. Rather, rabbinic understandings of suffering should be
viewed against the backdrop of asceticism and suffering in the broader milieu of late
Antiquity. Judith Perkins has demonstrated that the category of suffering was a
crucial—if not the crucial—cultural paradigm through which early Christians saw
themselves and were perceived by their contemporaries. Christians adhered to strict
self-discipline regarding food and drink and were renowned for their fearlessness in
the face of danger or death. Indeed, Christian texts of the early centuries worked
hard to project the message that “to be a Christian was to suffer and die”.63 Jews,
too, recognized this self-depiction of Christianity, and Justin Martyr describes his
Jewish interlocutor, Trypho, reproaching Christians for having “invented a Christ for
whom you give up your lives”.64 Perkins argues persuasively that in the Roman
Empire the suffering body emerged as a focus of substantial cultural concern, which
produced a new subjectivity—the “suffering self”. Roman orators and Christian martyrs alike portrayed their physical pain in great detail, drawing attention to a particular representation of the self.
While it is difficult to ascertain the extent to which Christian ideas influenced the
rabbinic milieu, this backdrop nonetheless sheds new light on the unique nature of
the rabbinically conceived Yom Kippur as a site of regulated suffering that constructs
a unique self. Reading the Talmud in light of this more nuanced view of Yom Kippur
in the rabbinic thought-world suggests that the post-amoraic objection was not
merely to the technical impossibility of an external expert determining whether the
patient does or does not have a physical need to eat. Rather, the talmudic redactors
protested the idea that it is possible for an external expert to weigh in on religious
questions of repentance, suffering, and death as well as to determine which religious
choice the patient should make. In the eyes of the later rabbis, the mishnaic notion
that an ‘expert’ can make a charged religious decision on behalf of the individual no
longer appeared plausible. Because the question was no longer merely a medicolegal
one—but a religious one as well—involving individual suffering and redemption, the
physician’s assessment was rendered irrelevant. The question was not merely a factual one (will the patient be endangered by not eating) but also an ethical one (can
the patient choose to endanger himself).
The matter of choice in time of suffering was a central one in the construction of
the self in late Antiquity. For the Stoics, whose influence continued into the period
of late Antiquity, the core definition of the ‘self’ hinged on deliberate moral choice,
or prohairesis. As Charles Kahn explains, prohairesis was “the true self, the inner man,
the ‘I’ of personal identity”.65 Epictetus frequently emphasized that choice was the
only manifestation of the real self: “You are not flesh, not hair, but prohairesis”.66
63 JUDITH PERKINS, THE SUFFERING SELF: PAIN AND NARRATIVE REPRESENTATION IN THE EARLY CHRISTIAN ERA 24
(1995).
64 DIALOGUS CUM TRYPHONE 8.
65 Charles H. Kahn, Discovering the Will: From Aristotle to Augustine, in THE QUESTION OF “ECLECTICISM”:
STUDIES IN LATER GREEK PHILOSOPHY, eds. John Dillon and A.A. Long 253 (1988).
66 EPICTETUS, DISCOURSES 3.1.40.
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As Robert Dobbin argues, the continual repetition of this point “is really Epictetus’
way of searching for the core of man, the inalienable self”.67 Notably, Epictetus repeatedly emphasizes that this core cannot be influenced by external circumstances,
including pain or suffering: “disease is an impediment to the body, but not to the
moral purpose [prohairesis] unless that wills”.68 Virtue for Epictetus was a matter of
self-mastery. Pain, disease, poverty, or prison were all beyond a person’s control;
what was crucial was how the individual would respond to them.
These Stoic ideas continued to circulate widely throughout late Antiquity. Thus,
it is suggestive to view the idea that “the heart knows its own bitterness” as one expression of the new conceptions of the self that developed in the Hellenistic and
Christian worlds that gradually infiltrated the Babylonian Talmud.69 The emergence
of a more sophisticated inner world and the significance accorded to individual
choice influenced the interpretation and construal of the law. While for the Mishnah,
experts were best equipped to answer any medical question, by the late amoraic
period only the individual was regarded as capable of recognizing his own needs and
making informed choices regarding his body and life.
A doctor can tell a patient to what extent he is endangering himself, but that is
not the only factor in the patient’s determination of which course of action to take.
Even if the patient knows he is in danger, he may, nonetheless, choose to continue
67 ROBERT F. DOBBIN, THE SENSE OF SELF IN EPICTETUS: PROHAIRESIS AND PROSOPON 122 (Ph.D dissertation:
University of California at Berkeley, 1989).
68 EPICTETUS, HANDBOOK 9.
69 While transitions in the notions of the self that developed in the Hellenistic and Christian worlds may
seem unrelated to the rabbinic circles of Babylonia, recent scholarship has pointed to numerous possible
connections between these diverse cultures. Shaye Cohen, and more recently, Richard Kalmin, have
examined the influence of Palestinian traditions on the Babylonian Talmud and found that fourth- and
fifth-century Babylonian Jewry exhibited a great receptivity to Hellenistic culture coming from the west.
Daniel Boyarin has similarly demonstrated the influence of Greco-Roman narratives on Talmudic ones,
proposing that scholars need to “be looking to the west and the Greco-Roman Christian world in order
to understand the culture of the Babylonian Talmud”. See Shaye J.D. Cohen, Patriarchs and Scholarchs,
48 PROCEEDINGS OF THE AMERICAN ACADEMY FOR JEWISH RESEARCH 57 (1981); RICHARD L. KALMIN, JEWISH
BABYLONIA BETWEEN PERSIA AND ROMAN PALESTINE (2006); Daniel Boyarin, Hellenism in Jewish Babylonia, in
THE CAMBRIDGE COMPANION TO THE TALMUD AND RABBINIC LITERATURE, Charlotte Elisheva Fonrobert and
Martin S. Jaffee eds., 336 (2007). But how would Hellenistic and Christian ideas have penetrated rabbinic
circles? For many years scholars assumed the model of “parting of the ways”, according to which Jews
and Christians became distinct and antagonistic groups already in the early second century and preserved
the sharp line of distinction between them throughout late Antiquity. More recently, however, some
scholars have begun to challenge this paradigm and have demonstrated that Jews and Christians in both
Palestine and Babylonia interacted with one another in both polemics and open dialogue. See: Adam H.
Becker, Beyond the Spatial and Temporal Limes: Questioning the ‘Parting of the Ways’ Outside the Roman
Empire, in THE WAYS THAT NEVER PARTED: JEWS AND CHRISTIANS IN LATE ANTIQUITY AND THE EARLY MIDDLE
AGES, Adam H. Becker and Annette Yoshiko Reed eds., 373 (2003); idem, The Comparative Study of
‘Scholasticism’ in Late Antique Mesopotamia: Rabbis and East Syrians, 34 AJS REV. 91 (2010); Naomi
Koltun-Fromm, A Jewish-Christian Conversation in Fourth-Century Persian Mesopotamia, 47 J. JEWISH STUD.
45 (1996); Adiel Schremer, Stammaitic Historiography, in: CREATION AND COMPOSITION: THE
CONTRIBUTION OF THE BAVLI REDACTORS (STAMMAIM) TO THE AGGADA, Jeffrey L. Rubenstein, ed., 219
(2005); PETER SCHA€ FER, JESUS IN THE TALMUD (2007); MICHAL BAR ASHER SIEGAL, EARLY CHRISTIAN
MONASTIC SOURCES AND THE BABYLONIAN TALMUD (2013). Although it is virtually impossible at this point
in scholarly discussions to posit direct influence of Hellenistic and Christian notions of self-knowledge on
rabbinic literature, it is nonetheless essential that we read the Babylonian traditions against the backdrop
of broader cultural transformations of the same period.
“The Heart Knows its Own Bitterness”
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the fast for redemptive reasons. Only the heart, the inner self of the individual, can
recognize its own religious needs. Only the individual can correctly assess the bitterness for which she may be atoning on Yom Kippur, and therefore only the individual
can engage in prohairesis, determining whether to risk pain and even life for the sake
of purification and atonement. The transition from the Mishnah to the Babylonian
Talmud, from expert to individual, thus reflects the new focus on consciousness, or
on the individuality of the specific subject. Only the self-knowing subject, reflecting
on the agent’s internal world, can achieve the correct legal determination.
AUTHORITY AND THE INDIVIDUAL
This article traced the fundamental transition that occurred in the sort of knowledge
needed to violate the Day of Atonement to prevent danger to an individual’s life.
The model espoused by the Mishnah emphasized the assessment of experts, according virtually no significance to the individual patient’s assessment of his or her needs.
I showed that the implication of this Mishnaic position is that the authority of professional expertise overrides even an individual’s concern for preserving his or her life.
This view accords with the recent findings of several scholars who have emphasized
the expansive nature of the Mishnah’s perception of authority.
In a recent article, Moshe Halbertal pointed to the novelty of the very emergence
of rabbinic law.70 Despite extensive scholarly attempts to trace the origins of particular rabbinic laws in the literature of the Second Temple period,71 rabbinic law differs
in its very essence from earlier bodies of law. In contrast to the earlier sources that
added limited details to individual commandments (mitzvot), the practice of halakhah engages in intensive “thickening” of entire normative fields, elaborating and
specifying their every aspect and feature. The result of this “birth of halakhah” is that
the legal field becomes an organism constantly occupied with expanding itself, attempting to regulate every corner of Jewish life. As Charlotte Fonrobert notes,
“halakhah in the Mishnah does indeed lay claim to the shaping of the human, and
specifically Jewish, behaviour, and it does so in a fairly comprehensive way: it circumscribes the religious practice of an individual Jew (purity, prayer, study); it defines social relations, beginning with familial to neighbour to communal; it shapes judicial
traditions into a judicial system; it strengthens Jewish collectivity by fine-tuning matters relating to the Jewish calendar; and it delineates relationships with non-Jews”.72
This ever-expanding regulation depends upon the existence of a class of professional
sages who are engaged in constant and detailed examination of earlier rulings.73
70 Moshe Halbertal, The History of Halakhah and the Emergence of Halakhah, 29 DINÉ ISRAEL 1 (2013).
71 Particularly through comparison of rabbinic law to the laws found in the Dead Sea Scrolls. See, for example, Yaakov Sussman, The Study of the History of Halakhah and the Dead Sea Scrolls: First Talmudic
Contemplations in light of the Miqsat Ma’ase ha-Torah Scroll, 59 TARBIZ 12 (1990); LAWRENCE SCHIFFMAN,
THE HALAKHAH AT QUMRAN: STUDIES IN JUDAISM IN LATE ANTIQUITY 16 (1975); VERED NOAM, FROM
QUMRAN TO THE RABBINIC REVOLUTION (2010); JOSEPH M. BAUMGARTEN, STUDIES IN QUMRAN LAW (1977);
AHARON SHEMESH, HALAKHAH IN THE MAKING: THE DEVELOPMENT OF JEWISH LAW FROM QUMRAN TO THE
RABBIS (2009).
72 Charlotte Elisheva Fonrobert, Ethical Theories in Rabbinic Literature, in THE OXFORD HANDBOOK OF JEWISH
ETHICS AND MORALITY, eds. Elliot N. Dorff and Jonathan K. Crane 54-55 (2013).
73 On the internal drive to “hyper-regulation”, see Yair Lorberbaum, Halakhic Realism, 27 JEWISH L. ANN.
125-126 (2013).
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The expansion of the legal field, therefore, results in increasing reliance on those experts who hold the knowledge to navigate the complex web of halakhah, a reliance,
which in turn grants those experts substantial power.74
Assessing the problem of fasting on Yom Kippur in light of these findings provides a deeper understanding of the breach between the Mishnah and its later commentaries. For the Mishnah, the central principle for deciding the law was the
authority of expertise. Both legal and professional knowledge and analysis were valued above all, overruling many other considerations. Although it remains a matter of
doubt whether the Mishnah’s legislation was ever implemented in its own time,75 the
Mishnah portrays rabbinic decisors as the primary adjudicators in matters of pain,
life, and death. In this sense, rabbinic interpretation contained within it a kernel of
violence. As Sarat and Kearns observe, “Law’s violence is not just an issue of interpretation; it is, in addition, a question of social organization, of the implementation
of judicial decisions, of the translation of words into violent deeds”.76 As the
Mishnaic rabbis instated themselves as the interpreters of pain, they embraced this
element of the power of law-making.
74 Indeed, several scholars have argued that the Mishnaic rabbis’ interest in the formation of a legal system
should best be understood by comparison to the role of the Roman jurists. As Martin Goodman writes,
“not unlike contemporary Lawyers such as Ulpian from nearby Tyre, the rabbis spent their time codifying
the law as they saw it, inventing problems to solve according to the principles they evolved from these
laws, adding a strong element of what they would like the laws to be, and making the results known to
the non-academic public”. See MARTIN GOODMAN, STATE AND SOCIETY IN ROMAN GALILIEE, A.D. 132-212
127 (2000). By portraying themselves as jurists who issued rulings in all areas of law, the rabbis of the
Mishnah were arguing that they were the only valid experts on the law, and that all Jews who wish to follow tradition must do so through the rabbinic interpretation of the law. Thus, numerous stories within
the Mishnah depict ordinary Jews approaching the rabbis to consult with them regarding various aspects
of the law, and in all cases these Jews defer to the rabbinic decision. Moreover, the rabbis portray themselves as accepted authorities over non-rabbinic Jews as well. Charlotte Fonrobert has argued that the rabbis depict both Samaritans and Sadducees as consulting with them regarding matters of law in order to
bolster their own authority over and against the leaders of these other groups. Similarly, Naftali Cohn has
argued that a number of Mishnaic texts reveal competition with other ritual authorities present in Judea
of the first centuries C.E., such as priests and synagogue leaders, while non-rabbinic sources also serve to
locate the rabbis in this period as “but one small group on the complex social and political landscape of
late second- or early third-century Roman Palestine”. It is likely that these groups vied to claim ultimate
authority over traditional Jewish practice, and the project of the Mishnah cannot be understood without
taking this context into account. As the small group of rabbis struggled to wrest control from other
Jewish groups of the time, they had to portray themselves as supreme authorities, accepted by all. See
Charlotte Fonrobert, When Women Walk in the Way of their Fathers: On Gendering the Rabbinic Claim for
Authority, 10 J. HIST. SEXUALITY 398 (2001); NAFTALI COHN, THE MEMORY OF THE TEMPLE AND THE MAKING
OF THE RABBIS 35 (2012).
75 Most historians of the Mishnaic period agree that the rabbis were a small group of scholars who struggled
for officially sanctioned authority under the Roman rulers of second century Palestine. Although the rabbis never attained official recognition, they did enjoy limited prestige as experts in Torah; however, their
influence ultimately depended on persuasion rather than power. See SETH SCHWARTZ, IMPERIALISM AND
JEWISH SOCIETY, 200 B.C.E.TO 640 C.E. 103-128 (2001); Shaye J.D. Cohen, The Rabbi in Second Century
Palestine, in THE CAMBRIDGE HISTORY OF JUDAISM, vol. III, eds. William Horbury, W.D. Davies and John
Sturdy 922 (1999); Catherine Hezser, Social Fragmentation, Plurality of Opinion, and Nonobservance of
Halakhah: Rabbis and Community in Late Roman Palestine, 1 JEWISH STUD. Q. 234 (1993-1994).
76 Austin Sarat and Thomas R. Kearns, Making Peace with Violence: Robert Cover on Law and Legal Theory,
in LAW’S VIOLENCE, Austin Sarat and Thomas R. Kearns eds., 228 n. 84 (1992).
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325
The rabbis’ esteem for expertise is manifest in the Mishnaic passage with which
this article is concerned. Whether the experts discussed in this passage are legal
authorities or solely medical professionals, the Mishnah clearly regards their opinion
as final and absolute. Later rabbinic decisors, however, rejected this position following one of two paths. The earlier amoraic position enshrined the value of human life
by arguing that concern for life should always serve to rule leniently, whether doctor
or patient require it. By contrast, the later position, adopted by the anonymous
redactors of the Babylonian Talmud, argued that only an individual can correctly recognize and decipher her own unique needs; thus, only an individual can determine
whether she must break the fast to sustain herself. I argued that this transition may
be attributed to changing conceptions of the self and the inner world. The Mishnah
assumes a world-view in which professional experts are exclusively authorized to answer any question, even one pertaining to life and death. Yet by the time of the redaction of the Talmud, with the recognition of the individual’s unique ability to
interpret his or her own needs, the significance accorded to self-knowledge transformed the interpretation and construal of the law. I suggested that this shift may be
illuminated when viewed in the context of the importance of the suffering self in
Christian late Antiquity and the centrality of prohairesis as a force liberating the self
from suffering. The intersection between the threat to life and the charged religious
atmosphere of Yom Kippur caused the late generations of rabbinic decisors to reject
the expertise of legal authorities as a deciding factor and to institute the individual as
the only person capable of making the legal decision concerning the balance of
atonement and the preservation of his own life. As these ancient rabbis came to recognize that knowledge of one’s suffering can be mediated only through the individual’s experience, they also became more concerned with the reaches of their own
legal authority and worked to minimize it. The later Babylonian rabbis recognized
that legal authority must in some cases be limited, its expansive and controlling nature contained, and the law limited to make room for a certain degree of individual
autonomy.