26 Shevat: Necessary Reburial

I did not speak at the RJC this past Shabbat. Since I’m working on teshuvot anyway, I thought to write up one I found in Sha’agat Aryeh, Dinei Chadash 17, from 26 Shevat 5544 (1784; this past Sunday was 26 Shevat.

[Brief biography, excerpted from Bar-Ilan’s version: R. Aryeh Leib ben R. Asher was born ca. 1695 in Lithuania. He served as rabbi and yeshiva head in various places in Lithuania and was renowned for his incisive intellect. In 1750 he was chosen as the rabbi of Volozhin. Here he composed his famous work Sha’agat Aryeh, which contains responsa and profound halachic discussions on Orach Chayim. This work was published in Frankfurt-der-Oder in 1756. In 1764 R. Asher left Volozhin and wandered throughout Lithuania and Germany. He was appointed rabbi of Metz in 1766, and he served as rabbi and head of the yeshiva there for twenty years until his death in 1785. He also wrote commentaries on various parts of the Talmud, titled Turei Even and Gevurot Ari, which have been published numerous times.]

Moving a Cemetery

One group of Jews in Paris was being kicked out of their cemetery (the non-Jew who owned the land had decided to plant it instead; a lawsuit had won the Jews a five year moratorium that was soon going to expire). The landowner would, unless the Jews moved the bodies, exhume them and dispose of them himself. The local Sephardic community was willing to share their cemetery temporarily, but it would require burying on top of pre-existing coffins.

The questions were: 1) Could they move the bodies from their current place? 2) Could they bury them above bodies already buriend there? 3) Do they have to keep the bones of each person separate from others, or could they mix them? 4) How should they dispose of the old coffins (which aren’t going to be used, for lack of space)? 5) There was a tradition not to buy a cemetery until there were two people who had passed away who needed burial; was there any authenticity to this, and how should the community handle it?

The questioner is a former student, who proposes answers for his teacher’s comment. Tur Yoreh Deah 363 allows moving a body to take it to Israel or to bury it with its forefathers (note the value assigned to burial in Israel or near one’s ancestors, each of which merits its own discussion, burial in Israel and burial near one’s ancestors). While that’s all that Tur mentions, it is clear—said explicitly by several authorities– that the issue is whether it’s being done for a purpose the deceased would find in his/her best interests, which certainly includes avoiding the disgrace of the non-Jew exhuming and disposing of the bodies however he saw fit.

Distance Between Bodies

Tur there also prescribes 6 tefachim as the necessary distance between bodies (about two feet, depending on one’s standard of a tefach); as long as they see to that, they should be able to bury one on top of the other. The questioner notes that Tashbetz allowed reducing that to three tefachim (for one on top of the other; side to side, he still required six), if both bodies were in coffins and there was a pressing need for space. Shvut Ya’akov had endorsed relying on that view in cases of necessity.

The need for space (and a Mishnaic discussion of how much we have to worry that the coffin will disintegrate over time, leaving the bones to intermix) shows that we are not allowed to knowingly mix the bones of different bodies. As to the coffins, which were apparently not being used in the new arrangement, the questioner felt confident they could be burned, did not have to be disposed of with the care given to items of sanctity.

Finally, as to the custom of not buying a cemetery until there were two waiting bodies, the questioner does not know a source, but assumes that any custom of the Jewish people should be respected, and perhaps it was a way to avoid anticipating bad things. (The flip side of a “custom” today not to buy baby furnishings until the child is safely born; some people will put the items on order, and have them delivered only once the birth happens).

Temporary Vs. Permanent Burial

Sha’agat Aryeh approves of the questioner’s views in general, adding some points. First, he notes that the six tefachim of space was to allow three tefachim for each body (three tefachim is, elsewhere, the minimum amount of space to be considered truly separate).

That cannot have been an absolute rule, since Sanhedrin 47 asserts that we do not bury evildoers near the righteous. It derives that from II Melachim 13;21, where the verse tells of a deceased man coming alive upon his corpse touching the bones of Elisha. If they generally left six tefachim between bodies, however, that story only tells about a mistaken case, when they buried them too close, and cannot be used to say anything about the rules for when there is a proper separation.

Similarly, the Gemara there requires two cemeteries for those who had been put to death by a court.  Criminals who had been stoned or burned were to be buried separately from those choked or killed by the sword. But if each had six tefachim¸ Sha’agat Aryeh asks, what’s the problem of being in the same cemetery?

He therefore argues that there is a difference between permanent and temporary burial (the latter was done until the body decomposed), and that the Gemara was discussing temporary burial. In those situations, there is no need to maintain a separation between bodies, which is why it would be problematic to bury evildoers, even evildoers of slightly different capital levels, near each other. Once the body has decomposed, it could be moved to its final resting place, where separation would be necessary.

But Not for Paris

Confident of his insight, and that it could applied in practice—meaning, in the current case, that there was no need for any separation, since this was only meant to be a temporary solution, he was loath to apply it to Paris since, despite being a large and well-established community, they did not have the usual and appropriate communal structures, with a rabbinic court and appointed communal leaders. That lack of established structure means that he thinks that even in this case, they would need to leave the full two tefachim between bodies, even if the arrangement is only temporary.

There is an implied critique here of Paris, and any other community that neglects to set up the proper communal order. It is a broader topic Sha’agat Aryeh only hints at, the minimal requirements of communal structure, one that is very much alive today as various Jewish communities experiment with different structures. For Sha’agat Aryeh, the presence of leadership, lay and rabbinic, seem to be minima, such that he is unwilling to allow them to rely on what he otherwise sees as a legitimate leniency.

As to the wood of the coffins, while the questioner had suggested it was permitted to burn them, Sha’agat Aryeh thinks it is required. In addition, they have to bury the ashes in a dedicated part of the cemetery, to be sure that no one makes use of them. They may be burned because they have no inherent sanctity; they must be buried, to be sure no one uses them for their own benefit, which is prohibited once they’ve been used to bury a deceased person.

Sha’agat Aryeh rejects the superstition about buying a cemetery. In another example of his concern with communal structure, he rules that they can and should buy a cemetery as long as they have already established a group of buryers, called a chevra kadisha (a quick check of the Bar-Ilan suggests that this is a pretty early use of that term), and that the members of the chevra should fast, say selichot, and ask for mercy (and the conquest of death), but then could buy the cemetery.

Burying our dead: a communal function that requires communal structure, a place to bury, and following the rules that ensure we do so with the proper respect for those who have gone. Even when we have not yet securd them a permanent resting place, or have to move them from place to place to place.

About the Author
Rabbi Dr. Gidon Rothstein has served in the community rabbinate and in educational roles at the high school and adult level. He is an author of Jewish fiction and non-fiction, most recently "We're Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix It." He lives in Bronx, NY with his wife and three children.