IS A TOMBSTONE MANDATORY?

QUESTION:

The question has arisen in our community whether it is necessary to have a tombstone on a grave. Does the law or the tradition clearly require it? (Asked by Rabbi Murray Black-man, New Orleans, Louisiana.)

ANSWER:

THERE ARE MANY references to tombstones or monuments in the literature, beginning with the Bible itself. Yet in spite of all these references, it is not clear whether to have a tombstone is a definite requirement of the law. The whole matter of the tombstone is considerably confused, and therefore, if we are to arrive at the responsibility of the family of the deceased, it is necessary to go into the subject historically and rather fully.

There are three references in the Bible. One is Genesis 3 8:20. Jacob put a monument on the grave of Rachel. The second reference is in II Kings 23:17. King Josiah, while on campaign, saw a tombstone (tziun), a marker, on a grave and was told that it marked the grave of a prophet. The third reference is in Ezekiel 39:15, where we are told that after the great wars, officials went through the land to purify it, and where they saw the bones or the body of a man, they put a marker there.

The Hungarian authority Moses Schick (Maharam Schick), in his responsa (Yore Deah 171), says that the Biblical references indicate that it was an unbroken tradition from Biblical times to have tombstones on the grave. But the Talmud (Moed Katan 5a) says that the custom is not based upon what Jacob did or King Josiah saw, but is learned from the reference of Ezekiel.

Broyde, in his article on “Tombstones” in the Jewish Encyclopedia, says that tombstones were unknown in the early days, and that the Jews of Palestine borrowed the custom from the Greeks and Romans, and he points to the fact that most of the inscriptions found were indeed in Greek and Latin. This opinion is probably correct because in Palestine burial was generally in a family cave, in niches, and, therefore, there was less need for identification. However, in early Mishnaic times, not all burial was in family caves. There were certainly many burials in open fields, and it was necessary to mark these accessible graves so as to keep Kohanim from blundering onto them. Therefore, as the Mishnah Shekalim 1:1 says, on the first of Adar each year the graves were marked. Bertinoro explains that white plaster was put on the graves, so that the priests should see them and avoid them. And since this white plaster would wear away, it was necessary to remark (repaint) the graves every year. Of course, this sort of marking does not mean that there were tombstones. Any mark would have been sufficient to warn off the priests.

However, there is a Mishnaic statement which clearly indicates the actual use of tombstones. In Mishnah Shekalim 2:5 we are told that if money is collected for the burial of the deceased, what is left over after the burial can be used to build a nefesh on his grave. This is the opinion of Nathan, but it is not the accepted law. The law is that the money left over is to be used, not for a tombstone (nefesh), but for other burials. Nefesh means some sort of stone structure. When the same statement is quoted in the Midrash {Genesis Rabba 82:10), instead of nefesh the word bayis is used, which indicates that this was a houselike structure. We know, for example, that Simon the Maccabee built an elaborate structural tomb over the grave of his father and brothers (see I Maccabees 13:27 ff.). Perhaps it was in reaction against this elaborate monument that Simon ben Gamliel said (j. Shekalim 2:5): “We should not put up a nefesh [an elaborate tombstone] for the righteous; their words are their true memorial.” But later commentators in defense of the tombstone said that Rabbi Simon ben Gamliel objected only to an elaborate structure, but not to a tombstone.

There certainly were tombstones in Talmudic times. The Talmud (Horayos 13b), mentioning the various types of action which would cause a man to forget his learning, counts in the list “reading the writing on a grave.” Evidently, then, there were stones with inscriptions, but this does not prove that such an inscribed stone was compulsory for every grave.

The medieval authorities find justification for the use of the tombstone. Asher ben Yechiel, in his responsa 13:19, indicates that if it is customary in the family to have a tombstone, then it is to be counted among the actual needs of the burial. Solomon ben Aderet, in his responsa # 3 7 5, says that the stone is for the honor of the dead. And in his responsa, pt. 7, # 5 7, gives, as far as I can see, the first actual statement mandating a tombstone. He says that the husband is in duty bound to provide a tombstone for his wife’s grave. (By the way, Greenwald, in his Kol Bo, top of p. 379, gives an incomplete and therefore a misleading reference. He says that the reference is Solomon ben Aderet, #57; he leaves out the necessary part, “pt. 7.”)

It is on the basis of this statement of Solomon ben Aderet that the Shulchan Aruch gives it as a law (in Even Hoezer 89:1) that the husband is in duty bound to provide for the wife’s burial and included in that duty is supplying a gravestone. The phrasing of Caro in the Shulchan Aruch would indicate that the gravestone is really an adjunct, and, in fact, this is the mood of the comment of Joel Sirkes, the Bach, to the Tur, Yore Deah 348, who says that what must be provided is “even what is not indispensable to the burial,” namely, the stone.

The same offhand reference to the tombstone, implying that it is not quite essential, is in the Shulchan Aruch, Yore Deah 348:2, namely, “We compel the heirs of the man to provide all the needs of the father’s burial and that they must include all that is in accordance with his family’s custom, even the tombstone.” So from the above it becomes clear that the tombstone is required if it happens to be the family custom to have one, but is not mandatory otherwise. The dubious status of the tombstone is finally removed by the opinion of Abraham Benjamin Sofer, the son of Moses Sofer, in his responsa K’sav Sofer, Yore Deah 178. He says, “Where it is customary to set up tombstones, there they are to be considered an essential part of the burial of the dead.”

To sum up, as much as we can, all the above uncertainties as to the status of the tombstone, we may properly follow the opinion of Abraham Benjamin Sofer, namely, that it has now become customary in all Jewish communities to have a tombstone for the honor of the dead. The tombstone serves many purposes. One scholar (Isaac bar Sheshes, 421) says that the name is to be remembered thereby. Another, that it is an honor to the dead to come to pray there, and therefore we must know where the dead is buried. Also (as Abraham Sofer adds), if all other graves are provided with tombstones and this one grave were deprived of one, it would shame the dead who is buried there. It is for these reasons that the tombstone has become an established custom, and to the large extent to which it is true that Minhag Yisroel Torah Hi —i.e., that an established worthy custom of Israel is to be considered as law—we may say that in our age and in our communities, the tombstone with the name of the departed has indeed grown to be law and is mandatory.