Culture, Religion

Halacha may care more about your well being than it does about secular Law.

Even where marijuana has been legalized, do the dangerous side effects of the drug militate against its use?
Does compassion for the patient override concerns of possible longterm harm?
Under which circumstances may a patient put himself into a potentially harmful situation?
If the non-medicinal properties of marijuana promote a feeling of wellbeing so that a patient feels relief, does that constitute a valid reason to write a prescription?

A historic halachic responsa offering the best argument for the halachic priority of medicinal need superceding the dreaded Dina D’iMalchuso’s cannabis prohibition, in a sober and pious way.

Our regard for civic obedience and responsibility
may indeed be a yardstick of our ability to sanctify God’s Name
and be a light to the nations.
Because marijuana is an illicit drug,
one might assume that it is halachically prohibited, as well.
However,
dina d’malchuta dina does not apply to matters of issur v’heter-
obligatory or prohibited activities, such as Shabbat, kashrut, inheritance or divorce. It applies only to monetary, commercial or civil law,
and not to religious law.

Since alleviation of pain and suffering is a religious obligation,11 then dina d’malchuta dina does not apply.

Wow.

Furthermore,
some poskim [rabbinic decisors] stipulate that dina d’malchuta dina is only binding when it does not oppose Torah law,
i.e. only when it relates to matters not dealt with explicitly by the halachah.
Rabbi Shlomo Ibn Adret (Rashba) cautions us that the Torah is of primary and paramount importance for the Jewish people.
Were we to defer to the law of the land to regulate every activity, we would effectively nullify much of Jewish law and abrogate the Torah itself.

However, to rule a certain way because it is the law of the Gentiles is forbidden, and it is prohibited by the Torah. If we were to accept this argument, we would nullify the first-born son’s rights of inheritance and uproot all of jewish law. What need would we have for holy books written for us by Rebbi and Ravina and Rav Ashi; Jews could simply teach their children the laws of the Gentiles and build altars in the Gentile houses of study.
God forbid that such a thing ever happen to the Jewish people; God forbid. The Torah itself would wear sackcloth.
There are those who suggest that dina d’makhuta dina applies only to dinei malkhut, i.e. those areas in which the State has legitimate interests needed for the proper administration of government and for the smooth functioning of society. These include taxes, roads, traffic regulations, safety, etc. Laws that infringe on the social, interpersonal, judicial, cultural, religious and personal areas of life are excluded from dina d’makhuta dina and are regulated by Torah law.

Who is this guy writing?
Dr. Wallace Greene received his B.A., M.A. and Ph.D. degrees from Yeshiva University and has taught courses in Ancient and Medieval Jewish History, Rabbinics, Talmud and other Judaica at Yeshiva University, Queens College, Upsala College, and Columbia University. …he presently is Director of Jewish Educational Services for the United Jewish Appeal Federation of Northern New Jersey. Dr. Greene has given hundreds of lectures across North America on a wide range of topics and for a broad spectrum of groups and is author of dozens of articles on topics related to Jewish education in publications such as Journal of Jewish Education, Jewish Book World, Jewish Education News, The Jewish Week, and the Journal of Jewish Communal Service”
Sounds like a legit source to me. But, having scanned google, looking for discussion of this statement, haven’t found any public controversy over it. The legend at the bottom of the page implies that it was given over by an American Jewish Congress summer event. I wonder how it was received? I hope mentioning it here doesn’t get him in to trouble, he sounds like arighteous, g-d fearing fella. Check out his response to religious concerns over collegiate assimilation. And his kids to the third generation are religious, bli ayin hara!

Casuistic and philosophical arguments can also be mustered to nullify dina d’makhuta dina in this case.
State officials will not prosecute patients who use medical marijuana, and the prospect of federal enforcement is fairly remote. This then begs the question of defining dina d’makhuta dina in our case.
Does it refer to laws on the books or only to laws that are enforced?
Logic would dictate that dina d’makhuta dina only applies to laws that are enforced.
Just as a king is only a king if he has loyal subjects, so too laws that are not enforced eventually lose their status as laws.
At issue, however, is still the question of the feasibility and advisability of a physician prescribing marijuana. In those states where it is legal there seems to be minimal risk. In states where it is still illegal, how far must an observant physician go to help alleviate pain and suffering by prescribing marijuana?

I e-mailed the good Prof. Greene about the piece, asking: what inspired this piece?
He responded:

While studying, I came across a passage in the Talmud in which a rabbi advises his son to avoid drugs. The commentaries understand the prohibition in terms of recreational drugs which are addictive as well as expensive. One commentary adds that for medicinal purposes if no other drug is available it is OK. From there it’s a short jump to explore the contemporary issue.
Where was it presented, and how was it recieved?
It was accepted for publication in the current issue of JUDAISM which came out a few weeks ago. I presented it at the CAJE conference at Duke University two weeks ago and it was well received. Obviously, not everyone will agree with my conclusions.

Though I’ve known many rabbis to privately support medicinal marijuana, i don’t think i’ve ever seen a public statement as open and supportive as this one. Thank you for being honest and righteous in public.

I didn’t write as a rabbi issuing a ruling. I just tried to apply relevant sources to the issue. I am sure I will hear from the opposing side. While studying, I came across a passage in the Talmud in which a rabbi advises his son to avoid drugs. The commentaries understand the prohibition in terms of recreational drugs which are addictive as well as expensive. One commentary adds that for medicinal purposes if no other drug is available it is OK. From there it’s a short jump to explore the contemporary issue.
Where was it presented, and how was it recieved? It was accepted for publication in the current issue of JUDAISM which came out a few weeks ago. I presented it at the CAJE conference at Duke University two weeks ago and it was well received. Obviously, not everyone will agree with my conclusions.
Though I’ve known many rabbis to privately support medicinal marijuana, i don’t think i’ve ever seen a public statement as open and supportive as this one. Thank you for being honest and righteous in public.
I didn’t write as a rabbi issuing a ruling. I just tried to apply relevant sources to the issue. I am sure I will hear from the opposing side.
(Cross posted to Cannabischassidis)

14 thoughts on “Halacha may care more about your well being than it does about secular Law.

  1. I have heard Jewish condemnation of the laws prohibiting medical marijuana even in the most Conservative-Republican and religious circles. It’s pretty interesting. It just doesn’t fit with our outlook on life.

  2. The upshot is nice – but the implications are far-reaching and quite problematic? How about tax fraud for good purposes? What about espionage and spying – to save Jewish lives (otensibly)? And what about stronger drugs?
    Also, there is the problematic issue of obtaining these drugs, usually made by underpaid people, not taxed properly and connected with other petty criminals.
    I promote the reasoning that DMD is not supreme over all halakha, but when promoting halakhically backed anarchy, we should be careful.

  3. With everyone feeling so mellow over the thoughtfulness of the cited author, I almost hate to break the news: The issue of ‘medical marijuana’ is a con job.
    Why?
    Because ‘medical marijuana’ already exists. It’s called ‘marinol,’ and it has been in use for decades, primarily to stimulate an appetite for cancer and AIDs patients.

  4. My mother works for Dr. Green. He is no “rebel,” just a normative Modern Orthodox Jewish Educator. Gives his Halakhic analysis even MORE weight, in my book.

  5. Miriam – your post assumes that marinol has proven as useful and effective for patients as smoked cannabis. In several studies patient testimony has belied this notion.
    First of all, the pill delivery has the side effect of getting patients much higher than they want to be, while smoked marijuana dulls pain without achieving a high in patients with chronic pain.
    Second of all, marinol is made by producing a pill of pure THC, while smoked marijuana contains not only THC but many other ingredients, some of which may interact with THC to produce effects that scientists have yet to isolate given the paucity of studies the government permits on the chemistry of marijuana. This perhaps accounts for many patients’ claims that marinol just didn’t work for them – it’s possible that chemical reactions that occur with smoked marijuana and that have positive pain-relieving effects simply don’t occur with THC isolate.
    There are other reasons why Marinol is insufficient.

  6. Miriam: Yeah, ‘medical marijuana’ also already exists here in california. It’s called CaliChron, and you can get a prescription and buy it at cannabis clubs all over. In fact, here in Santa Cruz, the City Council has handed out free medical marijuana from the steps of city hall to patients with doctor’s notes.

  7. One “problem” – as he points out, he is not a rabbi issuing a ruling. Hence, this is not p’sak and he is not a qualified posek.
    Nevertheless, having, of course, said that, it does serve as academic interest and theoretical interest which could have practical halakhic ramifications later.
    … But at this point it’s theoretical and academic because he is not a rav or posek.

  8. Sorry, didn’t notice that he does have smicha (is a rabbi). Nevertheless, he specifically notes that he is not making halakha hence it’s still academic

  9. Sam — As with all allopathic medications, marinol also must be titrated to the needs and responses of the patients. Proper titration prevents over sedation. Also some studies have shown that marinol works better when used in conjunction with opioids, which remain the best pain killers, both chronic and acute.
    Though it has been shown that smoked marijuana does decrease intraocular pressure in patients with glaucoma, the potential toxicity to the optic nerve may outweigh the pressure reduction.
    That patients with chronic pain would complain of oversedation from marinol, is unlikely. All medications are given at the lowest dose necessary for management, and are titrated upward as needed. Most likely, those who complain that the marinol — which is primarily used to increase appetite, but which has also been shown to potentiate the the effects of opioids — does not work as well as smoked marijuana, are those who enjoy smoking marijuana.
    A quick google of JAMA: MARINOL VS. SMOKED MARIJUANA comes up with lots of research, non of which remotely suggests that weed is more effecient than marinol, with the exception of a ‘scientific’ paper put out by NORMAL.

  10. This issue seems to be a classic gray area for which a posek is needed. Strong arguments on both sides. I’d like to throw one more idea out there – dina d’malchusa dina generally does not include laws which are on the books but are not generally enforced. Possibly the lax enforcement in America of small-dose private marijuana use falls under this category (and addresses some of Amit’s concerns). Or possibly not.
    If a sick friend asked me my opinion, I would advise him to buy what he needs quietly and use it privately. (Guess I’m one of the people Kelsey refers to above.)

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