Abstract
Brain death criteria is acknowledged by 80 countries worldwide as the death of a human being. Such acknowledgement has not gone without critical perspectives being voiced. Philosopher Hans Jonas (1903–1993), for example, who criticizes the brain death criteria as the modern version of the old mind-body dualism, names it today’s brain-body dualism.
He argues in favor of a more holistic perspective on the human dying process, thus resembling in his opposition modern Jewish Ultra-Orthodox’ strict reservations against brain death.
Contrary to the Western philosophic way of argumentation, Orthodox Jews and their religious authorities looked into the matter following other interests: In Orthodox Judaism, the question whether brain death is per definitionem halachic death (death according to religious law) created a controversy in its own right.
This article intends to discuss two main arguments: First, the Orthodox brain death controversy shows in a nutshell how production and governance of knowledge, secular (also medical) and religious knowledge alike, depends on processes of legitimization within a specific interpretive community. The issues of brain death and organ donation, generally rejected by the Ultra-Orthodox but accepted by their “modern” co-religionists, show that trust in the medical determination of death as well as trust in the uncertainty of the dying process are both legitimate options within the same religious normative framework. Thus, the acceptance or rejection of the brain death concept in different Jewish religious cultures may have (among other factors) to be considered together with the question of “knowledge sovereignty” when it comes to death and dying. Second, the question of which knowledge generating system should best be trusted is indirectly mirrored by Jonas’ idea of a new mind-body dualism that alludes to a general dichotomy between (medical) science and religion.
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Notes
- 1.
The term “halachic realities” is borrowed from the title of an anthology published by Lev Farber “Halakhic Realities—Collected Essays on Brain Death”. The term points at the existence of multiple religio-legal (halachic) ways of living—and, in our case, dying. Following Berger/Luckmann’s work (The Social Construction of Reality, 1966), “reality” is presumed to be socially constructed. Seemingly, any construction of legalistic frameworks that serve further institutionalization of (religious) structures, even if this process increases the authoritative claim on objective reality, are socially constructed. Different halachic realities are thus the result of the interplay between stabilization, institutionalization processes and interpretation.
- 2.
Ad Hoc Committee of the Harvard Medical School (1968), pp. 85–88.
- 3.
Sarbey (2016), pp. 743–752.
- 4.
Ad Hoc Committee of the Harvard Medical School (1968), p. 85.
- 5.
Jonas (1987), pp. 219–241. Unfortunately, this highly impressive book has not yet been translated into English.
- 6.
Jonas (1987), p. 234.
- 7.
Jonas (1987), p. 243.
- 8.
Mehta (2011).
- 9.
Stoecker (2010).
- 10.
Blutinger (2007), pp. 310–328.
- 11.
Further see Don-Yehiya (2005), pp. 157–187.
- 12.
Reconstructionist, Reform and Conservative Judaism are often subsumed under the umbrella term Progressive Judaism. Their members have in common not to organize their lives according to halachic rules (except the Conservatives to a certain degree).
- 13.
According to a survey conducted by the Pew Research Center Survey of U.S. Jews, 10% of the Jewish population in the United States are Orthodox with roughly two thirds self-identifying as Haredi and one third as Modern Orthodox. See http://assets.pewresearch.org/wp-content/uploads/sites/11/2015/08/Orthodox-Jews-08-24-PDF-for-web.pdf. Accessed 21 October 2017.
- 14.
See Babylonian Talmud (bT), Eruvin 13b.
- 15.
This conclusion, even though nothing new for Orthodox thinkers, is necessary in order to clearly state that the framework for Orthodox authorities is the traditional religio-legal one. This framework as a whole (Halacha) is understood to be “ethical”. From a Western (or philosophical) perspective and language, questions about the beginning and end of life are presumed to be questions of “ethics”. Halacha is thus better compared with secular state law, i.e. a legal system, that in turn is pre-informed by other carriers of meaning like Christian ethics or the like.
- 16.
See Bick (1993), p. 28. His article is a discursive response to another article published two years earlier in the same journal. The authors, both Orthodox rabbis, state their methodological approaches in the context of another medical halachic subject, the determination of halachic maternity. For that matter see also Bleich (1991), pp. 82–102 and Bleich (1994), pp. 52–57.
- 17.
Roth (1986).
- 18.
Gordis (1989), p. 29.
- 19.
Bick (1993), p. 32.
- 20.
Gordis (1989), p. 30.
- 21.
- 22.
Those codices were structured differently from the Talmud and produced with the intention of facilitating a faster retrieval of halachic information in everyday legal decision-making.
- 23.
bT Shabbat, Chap. 2. pp. 18–19.
- 24.
bT Orach Chaim, p. 329.
- 25.
Reifman (2012), p. 14.
- 26.
Abraham (2006), p. 219.
- 27.
Reifman (2015), p. 217.
- 28.
See the study of the Vaad Halacha of the Rabbinical Council of America on Halachic Issues in the Determination of Death and in Organ Transplantation. http://www.rabbis.org/pdfs/Halachi_%20Issues_the_Determination.pdf. Accessed 26 October 2017.
- 29.
Reifman (2012), p. 12.
- 30.
Kuhn (2012).
- 31.
Abraham (2003), p. 308. See further the positions of different religious leaders on brain death and organ transplantation on pp. 307–317.
- 32.
Fish (1980), p. 306.
- 33.
The following interview was conducted during field work for my dissertation project on Jewish bioethics. One set of questions dealt extensively with the issue of brain death and the policy of the respective hospital.
- 34.
D. Blaufarb is a pseudonym.
- 35.
The hospital management agreed to the interview under the condition that its name won’t be disclosed.
- 36.
This is an integral part of a not yet well researched concept that sociologist Chaim Waxman named “the sociology of psak”. See Waxman (1991).
- 37.
Soloveitchik (1986), p. 3.
- 38.
Cunningham and Andrews (1997), p. 6.
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Internet Sources
Mehta, Neeta. 2011. Mind-body dualism: A critique from a health perspective. Mens Sana Monographs 9: 1. Retreived from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3115289/.
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Werren, S. (2020). Hermeneutics of Modern Death: Science, Philosophy and the Brain Death Controversy in Orthodox Judaism. In: Hensold, J., Kynes, J., Öhlmann, P., Rau, V., Schinagl, R., Taleb, A. (eds) Religion in Motion. Springer, Cham. https://doi.org/10.1007/978-3-030-41388-0_5
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