On Deviance, Expertise, and Values – A Response to Prof. Yoram Yuval’s Article, “They Are Not Deviants,” Musaf Shabbat, Parashat Ekev (Column 25)

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On Deviance, Expertise, and Values

A response to Prof. Yoram Yuval’s article, “They Are Not Deviants,” Musaf Shabbat, Parashat Ekev

This version, which is itself concise, could not be published in Musaf Shabbat because it is too long. I hope that a shortened version will be published there next week.

Let me say at the outset that I too did not like Rabbi Levinstein’s tone regarding homosexuality. Let me add that, in my view as well, quite a few rabbis and other people display an incorrect attitude toward the phenomenon and toward the people involved. I too do not see homosexuality (certainly not the orientation, but even when it is acted upon) as a moral problem, but as a problem of Jewish law. That is, Yoram Yuval’s conclusions are quite close to my own positions, but precisely because of this I found it my duty to point out several basic and serious errors in his arguments. These are fundamental mistakes that recur again and again in discussions of homosexuality, though not only there. Both laypeople and experts fail on them, and it seems to me that in his article Yoram Yuval demonstrated just how professionals, too, are not immune to them. The most fundamental of them is what might perhaps be called the expertise fallacy. At the beginning of my remarks I shall try to explain it, and afterward I will add a few further side comments on his words.

Yuval begins his article with a brief description of the relationship between the rabbi and the expert. In an article I devoted to this issue (“The Expertise of the Halakhic Decisor as an Assessor of Reality,” Tzohar 7, 5761, p. 21), I broadened the discussion and described a general model of the connection between expertise and value decision-making. I built it on the assumption that this is a relationship between a professional, who knows and understands the professional knowledge in a given field, and alongside him operates what I called a “normative arbiter.” This may be a rabbi, a legislator, a judge, an ethicist, a qadi, or anyone else (including the person himself; each person determines for himself who, from his point of view, is the normative arbiter). The common approach, which Yuval described at the beginning of his remarks, sees here a two-tier structure: the expert supplies the facts and the rabbi determines the normative stance toward them. Thus, for example, the traffic expert says whether driving on a road is dangerous, and then the rabbi or the legislator/judge/police officer comes and says that it is forbidden (because of the commandment to greatly guard your lives (“you shall greatly guard your lives”), or because the law forbids dangerous driving that endangers others). Another example: the expert says whether the fetus at a certain stage is a human being or not, and then the normative arbiter comes and determines whether it is permitted to abort it under those circumstances.

But as I showed there, this is a simplistic model that fits almost no real-life normative decision. I explained that in fact the relationship is three-tiered. First, the traffic expert cannot determine that driving on a given road is dangerous. At most he can provide a risk graph (what the risks are at the given speed on the given road). That is Level A. At Level B, the normative arbiter comes and says from what level of risk something is considered “dangerous.” Note that he intervenes at the ostensibly “factual” stage (and not only at the stage after it has been determined that the speed is dangerous). Only after that determination can one say that 90 km/h on this road is dangerous. Only now does Level C arrive, in which the normative arbiter determines the normative stance toward this situation, that is, which normative determinations apply to it (whether under the given circumstances it is permitted or forbidden to drive at a speed defined as “dangerous”).

This model is correct with respect to other questions as well. For example, the status of physicians with regard to abortions. More than once I have spoken with physicians who did not understand why the decision whether to abort a fetus is not entrusted solely to the doctor, and what exactly the rabbi is doing there. What does he understand about medicine and fetuses? This is the very same misunderstanding. The doctor can determine which functions the fetus has at each stage (that is the graph). Then the normative arbiter comes and determines which set of functions defines a human being. The doctor has no tools to do this, since this is not a clinical question but a value question. Only at Level C can it be decided whether the abortion is permitted or forbidden. This is, of course, a value decision, and it is certainly not entrusted to the professional but to the normative arbiter.

This is precisely the situation with the question of homosexuality as well. The concept of deviance requires definition. In his article Yuval proposed a definition of sexual deviance as an inability to love a whole person (I have reservations about this definition and about its poor consistency, and I will not go into them here). But by the same token I could define a deviant as someone whose love is not directed toward a mature person of the other sex, or as someone who has moods of one kind or another. Definitions are not empirical findings, and therefore the professional has no advantage whatsoever over the layman with respect to them. Why should it matter to me how the late “Rabbi” Freud defined deviance? Psychiatrists can and should, of course, define their concepts for one professional purpose or another, and that is perfectly fine. But what does that have to do with the value question? This reminds me that once I was studying in the Hazon Ish kollel in Bnei Brak, and a kollel fellow approached me (knowing that I am a physicist) and asked me whether glass is a liquid or a solid. I told him that with respect to the laws of the Sabbath (whether it has the status of wet or dry), glass is a solid, although physicists customarily define it as a liquid for their particular purposes (it has a non-ordered crystalline structure). And the moral is that if psychiatry defines sexual deviance as an inability to love a whole person, I, insignificant though I am, have no problem with that. My problem begins when a psychiatrist thinks that Jewish law or morality ought to adopt his professional definition and apply it on the normative plane. In our context, the question whether homosexuality is a deviance is a purely normative and evaluative question, not a professional one. What does this have to do with the question of the relationship between the professional and the rabbi? Does psychiatry provide us with scientific information here? It provides us with a definition and nothing more. Why, as a rabbi, should I adopt the definition accepted in contemporary psychiatry? Is there some scientific finding here? Michel Foucault already noted that psychiatric diagnosis is saturated with value-laden and ideological assumptions. Despite the skepticism blowing through his writings, and despite his being one of the heralds of postmodernity, which is so repellent to me, I always remind myself that even a stopped clock shows the correct time twice a day. On this matter he was entirely right.

Returning to our issue, the psychiatrist can at most determine the sources of homosexuality: whether it has a genetic, environmental, or other background. He can determine whether it can be treated and by what methods, and what the consequences of one treatment or another are. All these are professional determinations, and assuming that the scientific knowledge exists (and in this case it certainly is not complete—a point that, in my view, Yuval did not emphasize sufficiently, and on certain points he adopted positions and presented them as facts), the professional, or expert, can give us answers to all these questions. That is a Level A question. But the question whether this is a deviance (a Level B question) is a matter of definition, not of professional determination (like what counts as a “human being” and what counts as “dangerous”). And certainly the question how one should relate to it (which norms apply to the situation) is not entrusted to the psychiatrist (for that is a Level C question). The psychiatrist does not have so much as a shred of advantage over the layman with respect to Levels B and C. That, briefly, is the expertise fallacy. Now for a few more small comments.

1. Although, alas, I am only a very minor expert in psychiatry, I doubt the explanation Yuval proposed for the change in psychiatry’s attitude toward homosexuality. He attributed it to a deeper understanding of its causes and of the possibility of changing it. In my opinion, beyond all this, it is first and foremost a value change, not a scientific one. Society decided that the phenomenon is not ugly or morally negative, and therefore it no longer regards it as a deviance. Psychiatry was dragged along here by culture and by social values, not the other way around. The repeated reliance on psychiatry in every such argument reflects the same fallacy that I have described here.

To sharpen the point, think about kleptomania. I have no idea what its sources are, or how and whether it can be treated (that is a professional question, from Level A). But let us assume, for the sake of discussion, that it has genetic sources, and let us also assume, just for the sake of discussion, that it cannot be changed (“converted”). Does that necessarily mean that kleptomania is not a deviance? Perhaps we should add that, according to someone’s definition, the thief loves his property with complete devotion, and therefore he is not deviant? Stealing is forbidden, and therefore it is entirely reasonable to define a kleptomaniac as deviant. That is so even though, there too, an inclination to steal does not mean that the person actually steals (just as Yuval explained regarding homosexuality), and there too it cannot be treated and it has genetic or organic sources (under my assumption for the sake of discussion). Still, the professional has nothing whatever to say about this issue. Moreover, I would wager that even if psychiatry were indeed to clarify all this in a clear and solid way, the attitude toward kleptomaniacs would not change. So why is homosexuality different? The only difference I see between the cases is that, in his opinion—as in that of most of his psychiatric colleagues today—it is permitted and not harmful to be homosexual, whereas stealing is still forbidden and harmful. Here we see that everything is a matter of values, not of factual and scientific findings.

Another remark concerns the condescension reflected in Yuval’s remarks (very polite though their wording was). I do not think there is a rabbi in Israel who is unfamiliar with the elementary points described in the article (aside from the professional details, which are irrelevant to the discussion). Everyone knows the model for the relationship between rabbi and expert (which, in my opinion, Yuval himself does not really fully understand, as I explained above). Everyone (including Haredi decisors) also takes experts into account to one extent or another. Everyone knows that there is a difference between an orientation and acting on it. Everyone knows that only the act is forbidden, not the orientation, whether it can be changed or not. And everyone knows that it is very difficult—indeed nearly impossible—to treat this orientation (although some think that one should and ought to try to treat it, and that there is a reasonable chance of success). And yet some of them still relate to it as a deviance, because they define the concept of deviance differently from the way it is defined in contemporary psychiatry, mainly because they see homosexuality differently on the normative-value plane. Yuval’s arguments are irrelevant to this matter.

And a final remark on a side point that arose in Yuval’s words, which also pertains to the expertise fallacy. Let me preface this too by saying that here as well I share the conclusion, but disagree completely with the premises and the inference that lead to it. He speaks about the fact that “every educated religious person” knows that in an intensive care unit there can lie a completely dead person whose heart continues beating for hours and days. Well, no. I think I am a fairly educated person (and also fairly religious), and I most certainly do not know that. Moreover, it is not connected to my education, because the definition of death and life is normative, not clinical (a Level B question). This is not factual information but a value judgment. The doctor can determine, if at all, what caused this, which functions exist in a person in such a state, and also what his chances are of returning to normal life (Level A questions). That and nothing more. He cannot determine whether such a person is alive or dead. And certainly not whether he may donate organs (which in my personal opinion is permitted, and even obligatory, even if he is considered a living person. See my article in Techumin 29. But my discussion here concerns Yuval’s arguments). Everything else is values, not facts. True, quite a number of physicians (some of them very senior) with whom I have spoken do not understand this (or refuse to accept it), and wonder what a rabbi is doing on organ-donation committees (as also on abortion committees). Exactly as I said, the expertise fallacy appears among senior, excellent professionals as well…