The insanity defense is a familiar legal concept, even for those who have not stepped foot in a courtroom; it is a concept popularized by such courtroom dramas as “Law and Order” and the now off-the-air show, “The Practice”. Although on a practical level, diagnosing a defendant as insane is difficult, the legal theory behind a plea of insanity is fairly simple: a defendant must be capable of differentiating between right and wrong to be culpable for their actions. To lack a properly calibrated moral compass, so to speak, is to be insane and, consequently, to be free from criminal blame. As the US legal system is based on Judeo-Christian values, it is not surprising to find that the Talmud describes what seems to be a loosely analogous loophole; namely, the exceptional case of the shoteh.
In its discussion of torts and Halachic obligations, the Talmud introduces four prototypes of mental ability: a pikeach, a competent individual; a heresh, a deaf-mute; a katan, a minor; and a shoteh. Although the Talmud neglects to define the parameters of the latter category, in Tractate Hagigah it does list three actions that are characteristic of the disorder: (1) going out unaccompanied at night, (2) sleeping in a cemetery and (3) tearing one’s garments. Later in the Tractate, the Talmud provides a fourth illustration: (4) a shoteh loses everything that is given to him.
In his commentary on this section, Rashi puts the concept of shoteh in context by explaining that a shoteh is exempt from Halachic obligations, exonerated from punishment, and prevented from participating in business transactions. Rashi’s commentary reflects how similar the shoteh is to its current parallel. The Halachic implications of being a shoteh are nearly identical to legal implications of being insane. Defining differences, however, remain between a shoteh and an insane defendant, differences that only become clear with a critical analysis of the Talmud and its later commentaries.
Such an analysis begins with the Amoraim, the later generations of rabbis of the Talmud. In lieu of a clear definition from their predecessors, the Tanaim, Rav Huna and Rabbi Yohanan try to explore the condition of shoteh. Their debate revolves around whether the list the Talmud provides in Tractate Hagigah is exclusive or inclusive. According to Rabbi Yohanan, an individual who performs any of the acts mentioned in the Talmud is a “certifiable” shoteh. In contrast, Rav Huna maintains that all three acts must be committed in order to attain shoteh status. The reasoning behind Rav Huna’s opinion is stated in the next few lines of the Talmud: any isolated act of irrationality can be explained as being contextually rational; on the other hand, three irrational acts are incontrovertible proof of mental instability.
The great twelfth century commentary Maimonides adds another dimension to the disagreement between Rabbi Yohanan and Rav Huna. In his commentary regarding court procedure, Maimonides notes that shotim are inadmissible as valid witnesses. As Maimonides explains in Hilchot Edut (Laws of Witnesses), the term shoteh is not exclusive to one who walks naked, destroys objects, or throws stones. Interestingly, the behaviors that Maimonides mentions vary slightly from the cases mentioned in Tractate Hagigah. Commentators such as the Kesef Mishneh have noted this discrepancy and have argued that Maimonides intentionally formulated his definition to depart from the wording of the Talmud. As the Kesef Mishneh goes on to explain, Maimonides’ reasoning for formulating his own list was to emphasize that the Talmud’s list is not exhaustive, and that many abnormal behaviors characterize a shoteh. Based on a preliminary reading of Maimonides, many Halachic authorities, like Rabbi Moshe Mordechai Farbstein, the Rosh Kollel of Imrei David, have opted for a general and simple definition of a shoteh. As Rabbi Farbstein explains, “a shoteh…[is] one whose mind is confused and whose processes of thought or conduct are adversely affected.” Although convenient and in keeping with Maimonides’ commentary, this definition lacks the depth needed to be applied practically to Halacha. We have all been confused at some point in our life, either about a math problem, a relationship, or about which direction it is to the highway. Confusion comes in many forms and afflicts everyone at some point in their life. Needless to say, we are all not shotim.
Fortunately, later in the Mishneh Torah, Maimonides gives a more specific definition of a shoteh. In Hilchot Edut, he states that a shoteh is someone who is unable to discriminate between contradictory ideas, is impulsive, or is disoriented. Maimonides’ explanation is almost prescient, providing a definition of a shoteh that can only be appreciated in light of a modern understanding of neurobiology. Astutely, Maimonides describes a shoteh as someone who, from a neurobiological perspective, lacks an ability to “identify”, “plan”, and “attend”. Although these terms have a colloquial meaning, they have a slightly different meaning in the discipline of neurobiology where they are used to describe the elements involved in cognition, the process by which we make sense of the world around us.
The brain is a highly complicated structure, which neurobiologists have only begun to untangle. Due to its complicated nature, neurobiologists tend to divide the meshwork of neurons that make up the brain schematically, with each region specializing in a different neural function. For example, neurobiologists attribute the area of the brain called the motor cortex with muscle movement. Similarly, the visual cortex, located in the rear of the brain, is responsible for visual perception; the auditory cortex, a small portion on each side of the brain, is responsible for hearing, and Broca and Wernicke’s areas are responsible for formulating and understanding speech and language, respectively.
Despite their clear importance, these areas are mere islands in the brain, and account for only about of a fifth of the area in the cerebral cortex. The remaining four-fifths of the brain, although less well understood, are in some respects even more important than the regions that confer the brain the ability to perceive sight, taste, smell, hearing, language, and exercise memory and learning. The importance of these other areas is their ability to link individual brain regions to each other and allow different regions to “communicate.” Accordingly, these areas are called association cortices.
As with most brain areas, neurobiologists discovered the role of association cortices from studying the behavior of patients who had these portions of their brain damaged due to accident or stroke. One of the first neurologists to discuss the effects of a lesion to the association cortex was W.R. Brain, who noticed that patients who suffered damage area of the brain called the parietal lobe, suffered from the following condition:
“Though not suffering from a loss of topographical memory or an inability to describe familiar routes, they nevertheless got lost in going from one room to another in their own homes, always making the same error of choosing a right turning instead of a left, or a door on the right instead of one on the left.”
To put it in other terminology, Brain’s patients had difficulty “paying attention” to their surroundings. His description shares a striking resemblance to Maimonides’ description of someone who is disoriented. Although hundreds of years later, in 1941, the symptoms that Brain describes as plaguing his cognitively diseased patients closely match the symptoms of Maimonides’ shoteh.
The similarities between Maimonides’ conceptualization of a shoteh and cognitive disorders go even deeper. Just as Maimonides described a shoteh as being incapable of discriminating between objects, lesions to a portion of association cortex called the temporal lobe result in a difficulty recognizing and identifying objects. These particular disorders are called agnosias, from the Greek for “not knowing”. The best studied of these disorders is prosopagnosia, an inability to recognize and identify faces. Although patients with prosopagnosia can describe the faces of loved ones from memory with accuracy, when confronted with an actual image of the individual, they can not identify the person. Notably, agnosias can affect a person’s ability to identify and recognize almost any object or idea, not just faces. Remarkably, the symptoms associated with agnosias closely parallel Maimonides’ description of a shoteh as someone who can not discriminate.
Maimonides’ observation that shotim suffer from an “impulsive nature” further highlights their similarities to patients suffering from cognitive disorder. Damage to the frontal association cortex may affect an individual’s ability to plan. This deficiency was first noticed in Phineas-Gage, a railroad worker in Vermont, working for Rutland and Burlington Railroad in the mid-nineteenth century. The story is almost as comical as it is miraculous as it is tragic. Using a metal rod to bore through a piece of rock so as to clear the area for a new portion of track, Phineas-Gage accidentally ignited a spark that that set off the explosives he was using prematurely. The rod rocketed out of the hole he was boring with such force that it went through Phineas-Gage’s eye and penetrated his skull, damaging the frontal portion of his brain. Surprisingly, Gage remained conscious throughout the ordeal and survived the accident. The brain damage, however, was permanent and, from the time of the accident on, Gage was never the same. As the physician who treated him noted:
“[Gage is] impatient of restraint or advice when it conflicts with his desires, at times pertinaciously obstinate, yet capricious and vacillating, devising many plans of future operations, which are no sooner arranged than they are abandoned in turn for others.” Previous to his injury, although untrained in the schools, he possessed a well-balanced mind, and was looked upon by those who knew him as a shrewd, smart businessman, very energetic and persistent in executing all his plans of operation. In this regard, his mind was radically changed, so decidedly that his friends and acquaintances said he was ‘no longer Gage.’”
Gage’s sudden change in demeanor led the physician to surmise that Gage’s newfound recklessness and inability to plan stemmed from the damage to association cortex, specifically the frontal lobe. Like Maimonides’ shoteh, Gage was equally “impulsive”.
As the previous discussion demonstrates, shotim suffer from cognitive deficiencies, and consequently, lack a typical awareness about the world around them. This opinion is espoused by the the Sefer Meirat Aynayim (Smah) in his commentary to the Shulchan Aruch, where he contends that shotim are granted special treatment in Halacha because they are detached from reality.
Based on the previous analysis, it would seem that this is where the Halachic definition of a shoteh and the legal definition of an insane individual split. Whereas a shoteh is unable to perceive the world around him, an insane individual is unable to discriminate between right and wrong. In this respect, the Halachic definition of a shoteh is more similar to the legal definition of “diminished capacity”- someone who is treated leniently by law due to his or her limited intellectual abilities- and the plea of insanity is more akin to the case of a katan, the shoteh’s counterpart. As the Talmud states in Tractate Yoma, “a minor does not have true understanding in the moral sphere.”
The definition espoused by Maimonides and the Smah, that shotim suffer from a detached sense of reality, has important technical and practical Halachic ramifications. This definition has the potential to change the traditional way Halacha views individuals suffering from mental retardation and influence Halacha’s approach to modern psychological disorders and syndromes.
From a technical standpoint, there is a clear distinction between a shoteh and a peti, a person suffering from mental retardation. The biggest proponent of this distinction is the Smah who argues that the peti is characterized by a general and permanent confusion while a shoteh’s confusion may be only temporary.
The Maharit and Radvaz make similar comments on Maimonides when he concludes his section on shotim with the assertion that simple individuals who do not understand things, who contradict themselves, and who are incapable of processing information in a typical way, are in the same category of shotim. The Maharit and Radvaz rush in to qualify the statement and restrict Maimonides’ generalization to the laws of testimony. Regarding other laws and situations, they contend, an inferior understanding is not enough to qualify someone as a shoteh. Similarly, the Sidrai Esh makes this distinction when he asserts that a peti is not the same as the shoteh discussed in the Talmud. The overwhelming Halachic opinion regarding people suffering from mental retardation or who are developmentally underdeveloped is that they should not be included under the status of shoteh; they are an independent category of petim. Consequently, people suffering from developmentally disabilities are not necessarily exempt from Halachic obligations or penalty. A person who suffers from only minor mental retardation would be held responsible for accidentally damaging another person’s property, assuming that they are capable of a certain level of cognition. In contrast, a shoteh, according to the definition just established, lacks cognition, and would not be responsible for the damage they cause. The peti and the shoteh are independent categories that possess their own laws.
It is important to mention that in extreme cases there is no practical distinction between peti and shoteh. If an individual suffering from mental retardation can not appreciate reality, then the peti assumes the status of a shoteh. The category of shoteh does not necessarily include the category of peti, but in certain circumstances, they may overlap.
The classification of shoteh has important implications for modern psychological disorders as well. It would appear that any individual who is confused enough about reality would fall under the category of shoteh. Shoteh status would, therefore, apply to a wide range of modern neurodegenerative diseases such as Alzheimer’s disease and schizophrenia, and a host of psychological disorders, such as senility and dementia, since these diseases tend to destroy large areas of the brain, including the association cortices, and therefore seriously impair cognitive ability. Presumably, sufferers of these conditions assume the status of shoteh with all of the associated Halachic implications.
On the other hand, this definition of shoteh may exclude certain disorders from the category, since not all neurodegenerative diseases and psychological disorders impair a patient’s sense of reality. For example, Huntington’s Disease and Parkinson Disease are characterized by progressive damage to of a deeply embedded portion of the brain called the basal root ganglia. These diseases tend to spare the association cortex, and therefore, do not disrupt cognition, but rather indirectly disrupt motor function. Most forms of depression, similarly, do not adversely affect a person’s sense of reality. Although these individuals may be exempt from Halachic obligations for other reasons, they do not fall under the category of shoteh. These individuals may be exempt because of oneis, a physical inability to perform certain actions, not because of a lack of cognitive function. The status of shoteh should be applied carefully, because, although it suitably characterizes many psychological disorders and diseases, it does not encompass all mental diseases.
Maimonides’ and the Smah’s definition of shoteh also helps address the issue of punctuated cases of mental derangement. As previously mentioned, the term shoteh applies when the individual is confused about reality. In cases where this confusion is only temporary, the individual is only classified as a shoteh for however long their cognitive ability is impaired. Similarly, individuals who lose sense of reality in specific situations, under certain conditions, or regarding particular matters would only constitute a shoteh when these conditions are met. Accordingly, Rav Moshe Feinstein rules that the status of shoteh only applies to the sufferer for the time during which they are in their confused state and only regarding matters in which they are confused . Shotim with a temporarily impaired understanding revert to pikeach status, a Halachically sufficient level of understanding, when their cognitive ability returns to normal.As a corollary to these ideas, an individual whose condition or disease can be treated or cured through medications or therapy revert to the status of pikeach while under treatment.
The shoteh occupies an important place within Halacha. They are an exceptional class who, along with a few other categories of individuals, are not Halachically responsible for their actions. Defining a shoteh, therefore, is critically important to applying Jewish law. Based on a careful reading of the Talmud and an analysis of later commentaries, it seems that the shoteh is an individual who is cognitively impaired. According to this conceptualization, individuals who suffer from severe mental retardation and sufferers of certain neurodegenerative disease and psychological disorders all fall under the category of shoteh. Accurately defining a shoteh is the first step in being able to apply the term to individuals today, and, thus, escorting an ancient Talmudic topic into modern times.
Abrahams, Rabbi I., trans. Hebrew-English Edition of the Babylonian Talmud. Ed. Rabbi Dr. I. Epstein. London: Soncino P, 1984. “Hagigah” 3b-4a, “Eruvin” 65a, “Yoma” 43a.
Amsel, Nachum. "Mental Incompetency." The Jewish Encyclopedia of Moral and Ethical Issues. 1st ed. 1 vols. Northvale, New Jersey London: Jason Aronson Inc., 1994.
Bleich, J. David. "Mental Incompetence and Its Implications in Jewish Law." Contemporary Halakhic Problems. Ed. Norman Lamm. New York, NY: Ktav House Inc. Yeshica UP, 1983. 283-299.
"Cemetery." Encyclopedia Judaica. 3rd ed. 1974.
Farbstein, Rabbi Moshe M. The Proceedings of the First International Colloquium. Medicine, Ethics, & Jewish Law, July 1993, The Dr. Falk Schlesinger Institute for Medical Halachic Research. Jerusalem Israel: The Dr. Falk Schlessinger Institute for Medical-Halachic Research At Sharre Zedek Medical Center, 1996.
Igrot Moshe, Even Ha’ezer 120
Kesef Mishneh commentary on "Hilchot Edut 9:9." Mishneh Torah Hayad Hakhazaka. Israel: Books Exports Enterprise Ltd. 79-80
Knopman, David S. "Chapter 425: Alzheimer's Disease and Other Dementias." Goldman: Cecil Medicine. 23rd ed. MDConsult. Elsevier. Himmelfarb Library, Washington, D.C. 18 Nov. 2008 <http://das/book/0/view/1492/1426.html>.
“Mourning." Encyclopedia Judaica. 3rd ed. 1974
Obermann, Julia, Louis Ginzberg, and Harry A. Wolfson, eds. "The Book of Judges: Evidence 9:9." The Code of Maimonides (Mishneh Torah). Trans. Abraham M. Hershman. New Haven: Yale UP, 1949. 100-105.
Rabbi Menachem Davis, Scherman, Rabbi Nosson, Rabbi Meir Zlotowitz, , and Rabbi Yaakov Blinder, eds. The Schottenstein Edition Siddur. 1st ed. Brooklyn, NY: Mesorah Publications Ltd., 2002. 311-312.
 Hagigah 3b
 Hagigah 4a
 Rashi’s commentary on Babylonian Talmud Hagigah 3b
Obermann, Julia, Louis Ginzberg, and Harry A. Wolfson, eds. "The Book of Judges: Evidence 9:9." The Code of Maimonides (Mishneh Torah). Trans. Abraham M. Hershman. New Haven: Yale UP, 1949. 100-105.
See Kesef Mishneh commentary on "Hilchot Edut 9:9." Mishneh Torah Hayad Hakhazaka. Israel: Books Exports Enterprise Ltd. 79-80
Farbstein, Rabbi Moshe M. “The Proceedings of the First International Colloquium. Medicine, Ethics, & Jewish Law: “Psychiatry and Halacha”, July 1993, The Dr. Falk Schlesinger Institute for Medical Halachic Research. Jerusalem Israel: The Dr. Falk Schlessinger Institute for Medical-Halachic Research At Sharre Zedek Medical Center, 1996.
 "The Book of Judges: Evidence 9:10". The Code of Maimonides (Mishneh Torah)
 Brain, W.R. 1941. Visual disorientation with special reference to lesions of the right cerebral hemisphere. Brain 64:224-272.
 J.M. Harlow, 1868 (Publicationof the Massachussets Medical Society 2:339-340)
See Sefer Meirat Aynayim commentary on the Shulchan Aruch, Choshen Mishpat 35:10
 Babylonian Talmud Yoma 43a
 See Sefer Meirat Aynayim commentary on the Shulchan Aruch, Choshen Mishpat 35:10
 Responsa of the Maharit, Even Ha’ezer 56 as quoted by Nachum Amsel in "Mental Incompetency." The Jewish Encyclopedia of Moral and Ethical Issues. p. 161
Radvaz commentary on Maimonides, Hichot Edut 9:10 as quoted by ibid.
 Plural of peti
Farbstein, Rabbi Moshe M. “The Proceedings of the First International Colloquium. Medicine, Ethics, & Jewish Law: “Psychiatry and Halacha” p.257
 Knopman, David S. "Chapter 425: Alzheimer's Disease and Other Dementias." Goldman: Cecil Medicine. 23rd ed. MDConsult. Elsevier. Himmelfarb Library, Washington, D.C. 18 Nov. 2008 <http://das/book/0/view/1492/1426.html>.
 See Igrot Moshe, Even Ha’ezer 120
 Farbstein, Rabbi Moshe M. “The Proceedings of the First International Colloquium Medicine, Ethics, & Jewish Law: “Psychiatry and Halacha” p.257