Responsa

CORR 163-164

BURIAL ON THE HOLIDAY AFTER A STRIKE

QUESTION:

The San Francisco gravediggers have been on strike for many weeks. Over a hundred bodies have piled up in the Sinai Memorial Chapel. There are good prospects that the strike may be settled Sunday, October 3, 1971. May the bodies be buried the next day which will be the first day of Succos? (Asked by Louis J. Freehof, San Francisco, California)

ANSWER:

THERE IS ABSOLUTELY no question that the bodies may be buried on the first day of Succos. The Shulchan Aruch, Orah Hayyim 526:1-3, says that the only days forbidden for burial are Sabbath and Yom Kippur. If a body is ready for burial (and these stored bodies are more than ready) it must be buried on the first day of the holiday if it is ready then. The only restriction is that certain preparations may be made only by non- Jews. It is non-Jews who must sew the shrouds and make the coffin. But to put the body into the ground i.e., inter) Jews may do it even on the first day of a holiday. The Shulchan Aruch specifically prohibits keeping the body over to the second day of the holiday, so that Jews may be permitted to do the complete task.

Some rabbis might raise an objection that this applies to a person who died on a holiday, but that these bodies that have waited for weeks might as well wait another day. But this is a mistaken argument; there is no Jewish permission to delay the burial of a body once there is the possibility of burying it. But in the case that such a mistaken objection is raised, then for the sake of communal peace, those bodies should be buried first whose rabbis raise no such objection.

One more caution: There is no requirement for any type of mourning at the reinterment of a body. This must be considered a reinterment since the formal closing of the coffin after the funeral service weeks ago was deemed the formal burial after which mourning could begin. There is a short mourning required when a body is disinterred, not when it is reinterred. But some people may imagine that some sort of mourning is required. Therefore it is good to follow the procedure of the great Hungarian authority, Moses Sofer (in his Responsa Yore Deah 353) when at the time of a mass disinterment from a cemetery commanded by the government, he forbade anyone telling the relatives of the dead the time of the disinterment, so that the whole community should not sit in mourning. His example guides us. When the interment takes place, you are not in duty bound, in fact I would say you are discouraged, from informing the relatives.

CORR 177-181

LIGHTS AT HEAD OF COFFIN

QUESTION:

At our funeral services there are usually two lights, candles or electric, burning at the head of the coffin. Is this custom based upon tradition? Must there always be two lights? (Asked by Louis J. Freehof, San Francisco, California.)

ANSWER:

THERE ARE MANY types of light that are used in connection with funerals and mourning: one, the seven- day memorial (shiva) lamp in the house of mourning; two, the annual yahrzeit lamp in the family dwelling; three, the candle that pious people would light on Yom Kippur in memory of their dead (the nehoma light.) And now, in addition, the question concerns lights that burn near the coffin during the funeral service.

The first three lights mentioned have already been discussed in various places in Reform Responsa, Vol. III, 14, 129, etc., but this particular question about lights at the coffin during the service is one that I have not been asked.

First let us dismiss one possible explanation for this light, namely that it is for the purpose of illuminating the face of the departed. It is contrary to Jewish tradition to look at the face of the dead (b. Horayos 13b) and therefore tradition is generally opposed to having the coffin open at all during services (Greenwald, Kol Bo, p. 3 6, #10 ) . It is clear, therefore, that if these lights were for the purpose of illuminating the face of the dead while the coffin is open, it would be simply compounding a sin.

We must therefore look for another source for the lights placed near the body of the dead. Tekuchinsky (of Israel) in the first volume of his two-volume work on mourning laws, Gesher Ha-Chaim {The Bridge of Life) in Volume I, page 49, gives the Palestinian custom (which is of course followed elsewhere) as to handling the body at the time of death. He says that twenty minutes after the time of death, the body is removed from the bed where it died and placed upon the ground. Then, he says, a light is kindled near his head, or, many lights are kindled around him. Some say (he continues) that as many as twenty-six candles should be kindled around the whole body while the bystanders (usually the Chevre Kadisha) recite (three times) the verse from Isaiah 2:5: “O house of Jacob, come let us walk in the light of the Lord.” Then again in Chapter 17, page 157 of the same volume, he deals with the question of whether these lights may be lit on Yom Tov if the person dies on Yom Tov. He answers as follows: “In those places where they are careful about lighting a light at the time when the person dies (i.e., as above) they may do so also on Yom Tov. ”

Joseph Schwartz in his book of funeral customs, Hadras Kodesh, in the closing section, Likkute Dinim, #25, also mentions the fact that we light lights by the dead. But he does not say how many lights are to be lit.

Also Greenwald, in his compendium, Kol Bo, page 23, says: “In many places they light candles after the person dies.”

What is the purpose of these lights, except perhaps the general symbol of the verse in Proverbs 20:27, that the soul of man is a light kindled by God. It is possible that there is a practical purpose, namely, that since now the body will be washed, the lights were simply for the purpose of seing the work more clearly. This explanation is quite possible. But there is also a strange and a mystical explanation for those lights. This explanation is found in the published ethical and ritual will left by Chaim Chiskia Medini, the author of the well-known collection of responsa, S’dey Chemed. He speaks of handling of the body of the dead (in this case, his own body). He says that the body should be subjected symbolically to the “four species of execution” practiced by the Jewish Sanhedrin upon criminals. The purpose of symbolically subjecting the deceased to these four deaths (arba missos bes din) was that whatever sin the departed might have committed, he will now receive its legal punishment and he will be forgiven. Therefore Chaim Chiskia Medini asks that the following shall be done to his body: When it is being lowered onto the stone floor, that for the last handbreadth, it should actually be dropped onto the stone floor. This will be a symbol of execution by “sekilla, ” “stoning.” Then a candle should be lit beside his body and some of the drops of wax be allowed to fall upon his body, and that will be a symbol of the mode of execution “serefa, ” “burning.” And so through symbols of the other two deaths. This symbolization of the “four deaths” was a fairly widespread custom. Cf. Ha-Kuntres HaYechieli, II, 46b.

Thus it would seem possible that these candles had a mystic origin besides the practical usefulness of helping in the washing of the body.

While the above may be a sufficient explanation of the custom asked about, yet after all, it would seem strange that the candle placed by the body at the time of death should be carried over to the funeral service. Actually there is a further explanation closer to being the true origin.

The Mishnah ( Berachos VII, 6) says, “We do not recite a bless ing over the light or over the spices of the dead.” The Talmud (in Berachos 53a) discusses this and Rashi explains the “light of the dead” by saying that in order to honor the dead, they had candles as they led the body to the grave. This custom of the candles lit in the procession of the funeral is also given in the Shulchan Aruch, Orah Hayyim 298:12. Here, then, we have what may be the most plausible source of the custom. It was a well-established practice since Mishnaic times to have candles as part of the funeral procession, and thus it was a part of the preliminary to the procession, namely, the service in the home (or chapel).

It is to be noticed that neither in Tekuchinsky nor in Greenwald, nor in Joseph Schwartz, is there any men-tion of numbers of lights. As for the position of the lights, since in ancient times the candles led the pro-cession, it is logical that they should be at the head of the coffin.

CORR 131-135

SUBSTITUTING FOR CHRISTIANS ON CHRISTMAS

QUESTION:

The Men’s Club of Temple Beth El, Detroit, substituted for Christian volunteer hospital aides on Christmas last year (1971). That year Christmas fell on the Sabbath and questions arose in the Detroit community as to whether it was proper for a Jewish congregation thus openly (and also with newspaper publicity) to violate the Sabbath. Since then, other Men’s Clubs are planning to volunteer for such duties on Christmas. This has raised the wider question: first, as mentioned about the Sabbath and secondly, about the value or propriety of this sort of substitute volunteering. (From Rabbi Richard Hertz, Detroit, Michigan)

ANSWER:

THERE ARE ONE or two general statements which must be made before going into the detailed laws involved in this matter. First of all, the propriety of violating the Sabbath: It is of course obvious that most modern individuals, not only in Reform congregations but in others, do not, in their personal life, follow with any degree of strictness the laws of working, traveling, opening letters, etc., on the Sabbath. Nevertheless, there is a difference between what is done privately and what is done publicly. This difference has long been recognized in Jewish law. The building of a house by contract (kablonus) may go on any day of the week including the Sabbath, for the Gentile contractor works, not by day-by-day orders from the Jewish owner, but by his own orders. But while such Sabbath work would be permitted, let us say, outside of the city, in the city where everybody sees the work going on, it is prohibited (see Orah Hayyim 244).

The Responsa Committee of the Conference receives many inquiries about the propriety of the Sabbath observance in our synagogues. May we permit a caterer, preparing for a Bar Mitzvah meal, to prepare the meal on the Sabbath? May the congregation have its business meeting on Friday night? May the Gift Corner (Judaica Shop) be open for business on Friday night, etc., etc.? So whatever the personal observance of individuals may be, there is considerable sensitiveness as to public violation of the Sabbath by the congregation itself. The question therefore is, whether such activities as substituting on Christmas for hospital work, etc., would justify the various public violations of the Sabbath that might be involved in transportation, copying of records, etc.

First of all, it must be recorded that the motivation which led this Men’s Club and leads other Men’s Clubs to such help to Christians is a well-established and honored motivation since ancient times. There is both the negative motive to avoid ill-will (m’shum eyveh) and the positive one to increase comradely relationship (mipney darche shalom). See the full discussion of these two motives in Dr. Lauterbach’s magnificent paper, “The Attitude of the Jew Towards the Non- Jew,” C.C.A.R. Yearbook, XXXI, 186. The motivation therefore for these volunteer substitutes is not only worthy, it is also traditional.

But there is a more specific concern that this substitution takes place on Christmas. The Talmud (the beginning of Tractate on Idolatry, Avodah Zara) prohibits any association with the heathens on or within days of their holidays, lest we become involved in their worship, or lest the money that they earn in business dealings with us be contributed to the idol worship. These laws of non-association at the non-Jewish holidays are carried over in the Shulchan Aruch, Yore Deah 141; but it is a well established principle in Jewish law that these laws refer to actual idol worshipers; that Christians and Mohammedans are not deemed to be idolators in Jewish law, and therefore there is no objection to associating with them on Christian and Moslem holidays (see Yore Deah 147:12, especially the long note by Isserles). Furthermore, it has long become an unobjectionable custom to give gifts to Christians on their holidays. The great fifteenth century authority, Israel Isserlein ( Terumas Ha-deshem #195) discusses the propriety of giving gifts on New Year’s Day, which of course was a religious holiday (as he himself mentions) namely, the Christian Feast of Circumcision, eight days after Christmas.

Since the motivation of comradeship is traditionally praiseworthy and since there is no objection to associating with Gentiles on the days of their religious fes tivals, the question now arises: What sort of activity is most suitable for this expression of goodwill? The Talmud lists certain types of what we would call social service today, which it is our duty to do for non-Jews. This is discussed in the Talmud, Gittin 61 a; namely, we sustain the poor of Gentiles, comfort their mourners, bury their dead as we do with fellow-Israelites; and in the Palestinian Talmud (J. Gittin 47c) there is added that in cities where Jews and Gentiles live together there is even joint collection and expenditure of funds, i.e., a sort of Community Chest. And all this social service referred even to idolators from whom in those ancient days Israelites were expected to keep away. Then how much more is it our duty to perform these social services for Christians who are not idolators at all and with whom we associate freely.

Now what should be the final question is: Which of these praiseworthy acts of social service and comradeship may be done on the Sabbath whenever, as occurred in 1971, Christmas falls on the Sabbath? First of all, any seriously sick person may be helped on the Sabbath and, in fact, it is considered a sin to hesitate and inquire whether to violate the Sabbath or not (see especially Orah Hayyim 328). It may be properly considered that sick people in the hospital are under the class of “seriously sick,” and it is a duty to help them on the Sabbath. It is not only for the seriously sick that the Sabbath may be violated. The violation of the Sabbath is likewise permitted in order to rescue anybody from danger (see Orah Hayyim 329 and 330). Since saving people from danger permits the violation of the Sabbath, we can properly include our substituting not only for hospital workers, but also for firemen and policemen on these days, even if the days occur on the Sabbath.

However, it would not be proper (even though still comradely) to substitute in violation of the Sabbath for salesmen, postal clerks, etc. There is no objection and, indeed, it is comradely and in accordance with the spirit of Jewish tradition to substitute for any workers on their holidays, provided Sabbath violation by a congregation is not involved. But in those years in which Christmas comes on the Sabbath, it would be in consonance with Jewish tradition and the sentiment of the general Jewish community if these voluntary, comradely acts were confined to hospitals and to the institutions of public safety.

CORR 91-97

NAMING THE CHILD OF AN UNMARRIED MOTHER

QUESTION:

An. unmarried mother desires that her child be given the usual type of Hebrew name: his personal name and the name of his father. However, the man whom the young woman declares to be the father denies that he is the father. Is there any way by which this child can be named in accordance with Jewish tradition with his personal name and a patronymic? (Asked by Rabbi Kenneth Segel, Pittsburgh, Pennsylvania)

ANSWER:

LET US FIRST take the extreme type of such a situation. Suppose that according to Jewish law this child is a bastard (mamzer). It need not be more than just stated that the Jewish definition of a bastard is much more liberal than that used in most legal systems. In Jewish law a child born out of wedlock is not necessarily illegitimate. Only such a child is illegitimate who is born of a relationship which cannot be legitimatized; as for example, the child of a married woman from a man not her husband. Since the woman in the case before us is unmarried, her child cannot be deemed illegitimate for that reason. Nevertheless it may be illegitimate for another reason. If, for example, her sexual relationship had been with a close relative whom she is not permitted to marry, this child would be illegitimate even though the mother is an unmarried woman. Therefore let us for the sake of completeness consider the extreme case, namely, that this child is in Jewish law illegitimate. Should it be named at all? Should any religious ceremony be performed in his behalf (assuming that it is a male child)? The law in Deuteronomy (23:3) states that a mamzer shall not enter the community even unto ten generations. This means that he may not marry into “the community” of priests, Levites, or Israelites (Kahal Kohanim, etc.). He may, of course, marry into the community of proselytes (Kahal Gerim) or freed servants, and such a marriage would be a legal and sacred Jewish marriage. In fact, the law recommends such marriages as a step in the purification of a mamzer. But other than the restriction placed on a mamzer, namely, not to marry into the three communities of Cohen, Levite and Israel, he is considered to be a Jew in every respect. For example, if the eighth day of his birth is on the Sabbath, he may be circumcized on the Sabbath. See Yore Deah 265:4 and also especially Jacob Reischer in his Shevus Yaacov, II, 82. He may be called up to the Torah. See Orah Hayyim 282:3, end of the note of Isserles. In other words, he is a Jew in every respect except for the above-mentioned marriage restriction.

In fact, the great Rhineland authority Maharil (Jacob Moelln of Mainz, 1367-1427) who may well be described as the prime source of our Ashkenazic customs, had the case of the circumcision of a mamzer which he had conducted in the vestibule of the synagogue with full rites except for the final blessing, which would imply that such should increase in Israel. So one may say in a summary that even if this child is illegitimate (a mamzer) , the father being one of the forbidden blood relatives, even so he should be considered Jewish in every way and no traditional ritual should be denied him.

But this child is not to be considered a mamzer. Since the mother claims that a certain man is the father and since the man denies it, we may say that the child’s paternity is not really known. In that case, the child belongs to the class called shetuki, “the silence,” i.e., those of whom we cannot say who is the father. In such cases the law is according to Abba Saul (M. Kiddushin, IV, 1 and 2 and b. Kiddushin 74a) who says that if the child is a shetuki the mother is asked about the father of the child. If she says that the father was one whom she would have been permitted to marry (L’kosher Nivalti) i.e., not one too close in blood kin-ship and not a non-Jew, then she is to be believed and the child is not a mamzer.

We may assume, therefore, in accordance with the mother’s statement that this is not the child of a father who is a forbidden blood relative and, therefore, this child is in every sense legitimate in the eyes of Jewish law. In the same section of the Minhage Maharil (Hil. Milah) in which Maharil spoke of the ritual circumcision of a mamzer, he also discusses the circumcision of a child born out of wedlock but legitimate (i.e., neither of a married woman by a man not her husband, nor from forbidden blood relatives). He speaks here of precisely the problem which is asked here, but unfortunately he does not give us a solution. He states, first of all, that he rebuked the mohel who wanted to leave out part of the Psalm, a praise to God for this child, and he made the mohel repeat the full ritual. But when it came to naming the child, the following difficulty arose (exactly as in the case of the question asked here). The man whom the woman said was the father, denied that he was. Therefore Maharil did not give the child that patronymic, since he said that to do so might shame an innocent man. Maharil does not then say what patronymic he did give the child. This is the essential point of our question.

But have we the right to choose any name we prefer? As a matter of fact, there is considerable latitude in the choice of a patronymic. The only exception to this freedom of choice concerns the divorce document (the get). In a get the precise naming is required, even to the embarrassing appellation, for example, of writing “Benjamin, the son of the apostate.” But other than in a get there is, indeed, a wide latitude in the choice of a patronymic. A man may change his patronymic, and certainly the spelling of it, after his father’s death; but if his father is still alive, he may do so only with his father’s consent (cf. the references in Moses Feinstein, Igros Moshe, Even Hoezer #22, p. 340). The specific case with which Moses Feinstein deals here is that of Miriam, a learned Jewess, a Hebraist, whose father was a Christian. She selected for herself the patronymic “Joshua” and signed herself in her Hebrew correspondence, “Miriam, daughter of Joshua.” Feinstein decides that if that name has become current, it is actually now her name (except, of course, if it happens that a divorce document needs to be written for her).

Since, then, we are indeed free to choose a patronymic for this child, which name should we choose? A simple solution presents itself at once but, really, it is too simple and should be rejected. There has been established a custom that when special prayers are given in behalf of the sick or the otherwise unfortunate, that the person in behalf of whom the prayer is given is named, not by his patronymic but by his matronymic; thus, instead of “Jacob, the son of Moses,” it would be “Jacob, the son of Sarah.” The reason for this is the petitional sentence in Psalm 116:16, “I am Thy servant, the son of Thy handmaiden.” In other words, this child could be named, “Jacob, the son of Sarah” (or whatever his mother’s name is). The Talmud speaks of a man named “Mari the son of Rachel” (Baba Bathra 129a cf. Rashi). See also Ezekiel Landau to Even Hoezer 129:10 (Dagul Mirvava) . But this simple solution must be rejected, because whenever this boy would be called up to the Torah, if he were called up in his mother’s name instead of his father’s, it would brand him for the rest of his life as having been born out of wedlock.

There is a better and a more considerate guidance in the Talmudic literature in this situation. There are a number of instances given in which children were named after people who were not their relatives. For example, in Shabbas 134a, we are told of a woman who lost two children because of the circumcision, and Nathan Habavli gave the mother advice to wait until the child was older, and her third child and her subsequent children survived the circumcision safely. Thereupon, the children were named “Nathan” after him, although he was no relative. So it was with the children who were named after Rabbi Eliezer, who solved a ritual question (as to blood) for a large number of women enquirers, and the children born were named for him {Baba Metziah 84b). Of course these children were given the name of the Rabbis, Nathan and Eliezer, as their personal name; but in an analogous case of Rabbi Yochanan (Rosh Hashonah 18a) we are told that the children were called “the family” of Rabbi Yochanan. So it is possible, on the basis of these precedents, to select a name that has no direct relationship to the paternity or the imputed paternity of the child. But is there any specific guidance as to which name to adopt as the patronymic?

The Talmud, in Sanhedrin 19b, refers to the fact that certain children were described as the children of Saul’s daughter Michal, when actually they were the children of his other daughter, Merab. The Talmud explains this fact by saying that Merab bore those children but Michal raised them, and then the Talmud gives the following dictum: Whoever raises an orphan in his house may be considered its parent. Therefore if this child is given out for adoption (and since, anyhow, an adopted child is given the family name of the adopting family) he can be given the Hebrew patronymic of the head of the family which adopts him. If it is a fairly common Hebrew name, it would not necessarily point to him as the actual natural father. But if the name is unusual enough to point to him as such, the child can be named after the adoptive grandfather. Or, following the precedent of the various rabbis mentioned in the Talmud, the Hebrew name of any scholar greatly admired may be adopted; or, as we do with proselytes, who are called “the children of Abraham our father,” the name of Abraham might be adopted as a patronymic.

Also there is another solution: When a man’s father is an apostate whose name we will not call out when the son is called to the Torah, the son shall not be called up by his name alone, for that would shame him. He is called up as the son of his grandfather (see Isserles, Orah Hayyim 13 9:3; Terumas Ha-deshen # 21) . In Orah Hayyim 139:3, at the end of note, Isserles says a shetuki (one whose father is unknown) is called to the Torah by his own name, as the son of his mother’s father. So, too, Ephraim Margolis in his Shaarey Ephraim 1:27, suggests that a shetuki, when called to the Torah, be called by the name of his mother’s father.

The essence of the matter is this: Even if, in the strictly delimited sense of the Hebrew definition, the child is actually illegitimate, even so, no traditional rite may be refused to him. But since this child is not illegitimate, but just the child of an unmarried mother, he is entitled, of course, to every ritual of circumcision and naming, and the name is to be selected according to the various alternatives mentioned above.

CORR 120-123

HEBREW LETTERS ON CHAPLAIN’S INSIGNIA

QUESTION:

The lettering for the Ten Commandments on the chaplain’s insignia is Roman lettering. If a request comes to change the letters to Hebrew letters, should this request be encouraged? (Asked bp Rabbi Aryeh Lev, New York)

ANSWER:

YOUR QUESTION as to whether there would be any objection if at some time the letters on the two tablets on the chaplain’s insignia were changed from Roman numerals to the Hebrew letters, can be answered at once. In principle there can be no objection to such a change, but in practice it would be undesirable.

The question which is basic to the entire discussion is whether there is any sanctity in the Hebrew letters per se, i.e., just as letters. That the Hebrew writing in itself is not sacred is evident from the fact that the Talmud says of certain writings in Hebrew that they need not be rescued from burning on the Sabbath. See Shabbas 115b, which speaks of kameyos and berachos: “Even though they contain names of God, they may not be rescued from the fire on the Sabbath, but must be allowed to burn up, including the names of God they contain.” In those days prayers were not permitted to be written; hence if written, the writing was not deemed to be sacred.

Of course, although the Hebrew letters are not sacred per se and the sacredness is dependent entirely upon what is written in them, nevertheless the written name of God, to be fully sacred, must be written in our square Hebrew letters. Thus the Mishnah in Yadaim 4:5 says that the written name of God is not sacred until it is written in our square Hebrew letters on parchment and with ink. In spite of this law, even the name of God so written is not always sacred. A Sefer Torah itself, if it is written by an apostate or a heretic, must be burnt up with all the names of God that it contains {Orah Hayyim 334:21).

This, then, is the law strictly stated. There is no sanctity in the Hebrew writing as such; the sanctity inheres only in the name of God written in Hebrew, and even that under certain circumstances (if written by a heretic) need not be rescued from fire.

However, while the above is strictly correct, there grew up in the passing of the centuries a noticeable sentiment to protect Hebrew writings in general. Perhaps this was due to the Kabbalah which taught that there was a sacredness in every Hebrew letter in the Bible and that all of them can be mystically woven together to form names of God. You will notice, therefore, that while the Talmud says clearly that written kameyos (spells) must be allowed to be burned up and the Sabbath not violated by rescuing them, the Shulchan Aruch in Orah Hayyim 334:14 repeats the Talmudic rule that they should not be rescued, but then adds: Some say that they should be rescued (in this regard it quotes the Tur).

In general there has grown up a feeling against carrying any Hebrew writing into unclean places. An example of this growing sensitiveness occurred with the famous responsa anthology of S’dey Chemed by Chaim Chiskia Medina. Although the title means Pleasant Fields, some rabbis raised the objection that the word S’dey, meaning “fields,” could be misread as “Shaddai,” and therefore the name of God. Hence the title should not be used, lest pages from it be taken into an unclean place. This objection was taken so seriously that there was printed in one of the many in troductions to the anthology a fifty-page collection of defense opinions entitled “Be’er B’S’dey,” “The Explanation of the Word S’dey.” I am sure that people today would object even to a Socialist paper printed in Hebrew letters being left in or taken to unclean places.

Since, therefore, the chaplain’s insignia on the chaplain’s coat is carried around everywhere, there certainly would be feeling against the fact if the chaplain’s insignia had the Hebrew letters of the Ten Commandments instead of the Roman letters.

It is worth mentioning that the Talmud expresses some concern about the king and the Sefer Torah. The Bible says (Deuteronomy 17:19) that the Sefer Torah that is written in behalf of the king, he should read all the days of his life; and the Talmud, Sanhedrin 21b, cautiously says that he must read it in a place that is proper for the Torah to be read in. In other words, it should not be taken to an unclean place. The Talmud says further that he should not go with it into the bathhouse or into the toilet.

But as I said at the beginning, there is no strict law against it, although there would be definite Jewish feelings opposed to a possible desecration.

CORR 232-235

VISITING THE CEMETERY

QUESTION:

A man from Hartford, Connecticut, visiting his father in Milwaukee, decided also to visit his mother’s grave in the Milwaukee cemetery. It was Chol Ha-Moed of Passover. When he returned from the cemetery, his father rebuked him, saying that he should not have visited the cemetery during this period. Was he right? What rules govern visiting the cemetery? (Asked by Rabbi Harold Silver, Hartford, Connecticut.)

ANSWER:

THIS FAMILY INCIDENT involves a rather important question. When is it proper and when is it improper to visit the cemetery? And are these rules a fixed and an authoritative part of Jewish traditional law?

This question, like many other questions of popular observance, involves a number of larger questions. The first is: Are the laws of visiting the cemetery to be deemed Biblical law (which is the most authoritative) or only rabbinical law in elaboration of the Bible ( M’d’Oraisa or M’d’Rabbanun)! The second question is: Is this, altogether, a question of law, or is it a question merely of popular custom ( Din or Minhag) ? If it is only Minhag, then there is this further question: Is it a well-established or widespread Minhag (in which case it would be deemed as authoritative as law itself) or is it merely a local Minhag? All these questions need to be settled in all cases where there is a dispute with regard to any observance, in order to know how strictly the observance must be followed.

As soon as one looks at the question of visiting the cemetery, one finds an astonishing vagueness as to the observances and a curious variety. In almost every case where the visiting is mentioned, it is mentioned with the words, “It is a custom in some places to visit on this and this day,” etc. In some places it is a custom to visit on Erev New Year and Erev Yom Kippur. (This custom is traced to Frankfurt; mentioned by the recorder of Old Frankfurt customs, Yosef Ometz). In some places the cemetery is not to be visited during the month of Nisan. Some Cabalistic sources (mentioned in the name of the Ari) say that a woman in her period should not visit the cemetery. The variety of customs indicates in itself that the entire question of cemetery visiting is not really in the realm of law, but only in the realm of custom, and not too widespread a custom either. The best proof of this fact is that you do not find in any of the codes any worked-out listing of the days in which the cemetery may or may not be visited.

If that is the case, the best thing to do is to go back to basic principles and decide the question involved here on more general grounds. The basic question involved here is derived from the Talmud. The Talmud, in Taanis 16a, describing the ritual on the fast days (referring to the special fast days called in case of drought) says that among other observances, people visit the cemetery on these fast days. To which the Tosfos comments and says, “That is why we visit the cemetery on the Ninth of Av.” This comment of the Tosfos on the Talmud establishes a general rule for us, namely, that the proper time to go to the cemetery is on fast days or, in general, at penitential times; hence Erev Yom Kippur, Ten Days of Penitence, etc. We may also derive the reverse rule that we may not visit the cemetery on days of happy holidays; so not on the Sabbath, nor on the Yom Tov.

This reasoning, however, leaves the specific question of Chol Ha-Moed somewhat open. Is Chol Ha-Moed holiday enough to make cemetery visitations improper? After all, we do have funerals on Chol Ha-Moed (but perhaps that is because a funeral cannot be long postponed). On the other hand, it is a generally observed rule not to have weddings on Chol Ha-Moed, so as not “to mix one joy with another.” So Chol Ha-Moed is enough of a holiday to say, perhaps, there is justification for the custom not to visit the cemetery then. But this is not really well-established. If you look in the Shulchan Aruch (Orah Hayyim 548) where the laws of Chol Ha-Moed are given, there is no mention at all of prohibiting cemetery visiting; and if you look in the Yore Deah (401) where the law of mourning is given as it applies to Chol Ha-Moed, there is no mention there either. So in general we may say affirmatively, there is a custom to go to the cemeteries at penitential times, the Ninth of Av, the month of Elul, the Ten Days of Penitence, Erev Rosh Hashonah and Erev Yom Kip pur. As to the days, then, on which we may not visit the cemeteries, we may say on Sabbath and holidays and possibly, also, on Chol Ha-Moed.

But a clear proof that all this is only Minhag is to be found in Greenwald’s well-known handbook, Kol Bo, page 166, who quotes an authority, Mishmeres Shalom, (Shachne Tcherniak) to this effect: If a person has a sick person at home and he wants to go to the cemetery to pray in his or her behalf, he may go even on Chol Ha-Moed, the New Moon and the Sabbath.

So the whole matter is based on custom. While generally we may say that it is preferable not to visit on Chol Ha-Moed, nevertheless if the son came halfway across the country for a brief visit, he certainly may violate this custom and visit his mother’s grave on Chol Ha-Moed, as he would have been permitted had he a sick person to pray for at his mother’s grave. His father should not have rebuked him, unless, of course, what he really wanted was for the son to prolong his visit and then he could go to the cemetery after Pesach.

CORR 60-63

CANDLE LIGHTING AT KOL NIDRE

QUESTION:

The congregation has an established custom of conducting a candle lighting ritual at the late Friday evening service. It is now planned to have such a candle lighting ritual at the Kol Nidre service (or is it, perhaps, already an established custom?). An official of the congregation objects to this Yom Kippur Eve ritual. It is not clear whether his objection applies just to this year, when Yom Kippur fell on the Sabbath or whether he objects to the candle ritual for any Yom Kippur. Should such a ritual at Kol Nidre be established or, if already established, should it be continued? (Asked by Rabbi Albert A. Michels, Sun City, Arizona.)

ANSWER:

THE OBJECTIONS of the officer of the congregation should be taken seriously, especially if his opposition to the candle ritual is shared by many members of the congregation. Even if there could be very little objection to such a ritual in a Reform congregation, nevertheless if a considerable portion of this congregation objects to such a ritual, even without justification, then it is wiser not to institute such a ritual if it does not already exist as a congregational custom.

This concern for the feelings of the congregation, regardless of whether they are justified or not, is based upon the well-known caution in the Talmud (Pesachim 50b) namely, that if people believe that something is forbidden, then even though actually it is permitted, you may not declare it permitted in their presence. In other words, we must be careful not to shock the religious sensibilities of people, even though they may not be justified. If, therefore, there is no such established custom at present in the congregation, and such a custom is now contemplated, then one must judge, carefully, the sentiment of the congregation in this matter.

However, the feelings of the congregation, pro or con, are not the basic consideration. They are only the grounds for caution. The question can best be decided objectively, i.e., according to law and tradition. Should such a custom exist (or continue to exist)? As to the actual law, the Halacha in the matter, there is no question that the custom of lighting candles at a late Friday evening service after dark is violative of the traditional laws of Sabbath rest. However, this lighting of candles in the synagogue has, by now, become a well established custom in Reform synagogues and our people have come to accept it. Our rabbinate, also, favors the ritual on the ground that its spiritual benefits outweigh the fact that it is violative of the laws of Sabbath work. The question now is: Should this established custom carry over to Yom Kippur also?

We mentioned above the possible sensitivities of people who accept the kindling of candles late Friday night but nevertheless object to it on Yom Kippur. Beyond the necessity of considering their sensitivity to the matter, we must now ask ourselves objectively: Do the laws of Sabbath rest apply more strictly to the Day of Atonement, since that is called “The Sabbath of Sabbaths”? As a matter of law, the laws of Sabbath rest apply also to the Day of Atonement (of course, even if it occurs on weekdays). See Minchas Chinuch, commandments 316, 317. But one may well say that the laws of Sabbath work apply, not more strictly, but less strictly to the Day of Atonement, since in the days of the old Jewish state, violation of the Sabbath was punished as a capital crime by the courts (Sekilla); whereas violation of the Yom Kippur laws of rest were not punished by the courts, but left to the punishment from heaven (Karres).

More specifically, the Sabbath lights belong properly in the home, on the table, not in the synagogue. The Mishnah (M. Sabbath 2:7) says that when a man comes home from the synagogue, he must ask the household, “Have ye kindled the lights?” There is, therefore, no strong legal reason for having these home lights kindled in the synagogue, as has become our modern Reform custom. On the other hand, the lighting of candles in the home on Yom Kippur is only a custom which varies in different cities (see Orah Hayyim 610:1). But lights in the synagogue on Yom Kippur are virtually mandatory; not only the memorial light (Neshama light) but lights in general are to be multiplied in the synagogue on the Day of Atonement (Orah Hayyim 610:4). Of course those lights were meant to be lit before dark. However, it can be stated that on the basis of tradition the kindling of lights on the Sabbath belongs primarily in the home, and the kindling of lights on Kol Nidre belongs primarily in the synagogue. Therefore, as far as tradition is concerned, we can say that if the custom had developed in Reform congregations to have a candle lighting ceremony only on Kol Nidre, that would be much more in consonance with tradition than our present custom of lighting candles on Friday night in the synagogue.

To sum up: If the ritual of candle lighting on Kol Nidre has not yet been established as a congregational custom and it is a question of initiating it now, then careful consideration should be given to the sentiment of the congregation on this matter. If there is no strong feeling against it in the congregation, and especially if it is already a custom of the congregation, then it is evident that lighting candles at Kol Nidre can find much more justification in the tradition than lighting them in the synagogue on Friday night, which is already an established custom with us.

CORR 212-216

CAESAREAN ON A DEAD MOTHER

QUESTION:

A mother eight months pregnant has died. Does Jewish law permit a Caesarean to be performed on her body to save the child or perhaps, even, does Jewish tradition recommend or urge such an operation? (Asked by Dr. Thomas H. Redding through Rabbi Leonard S. Zoll, Cleveland, Ohio.)

ANSWER:

THE QUESTION of cutting open the body of a mother who has died in order to remove and thus save the child is discussed as far back as the Talmud itself in Arachin 7a (cf. also B.B. 142b and Niddah 44a). The discussion is based upon the Mishnaic law dealing with a pregnant woman who is condemned to death. Do we delay execution of the sentence until she has given birth or not? In the development of that discussion, Rabbi Samuel (in Arachin) extends the discussion from that of a convicted criminal to any woman who dies when she is near to giving birth (“a woman on the mashber, the birth-stool, who dies.”) In such circumstances Rabbi Samuel says that we may bring a knife, even on the Sabbath (bringing a knife on the Sabbath is forbidden generally) and we may cut open her body to save the child. The discussion there in the Talmud involves the question of whether the child is alive or not and the opinion is expressed that generally the child dies immediately (or even before the mother) and therefore the Sabbath would be violated (by bringing the instruments) in vain, since the child is already dead. But Rashi says, even in the case of the “doubtful saving of life,” we may violate the Sabbath; and that therefore on the chance that the child may be alive, we bring the knife and perform the operation.

It is exactly in this form that the law is recorded by the great legalist and physician, Moses Maimonides, in his Hilchos Shabbas, 2:15. He says: We perform the operation even on the Sabbath, for even when there is doubt whether we are saving a life, we may violate the Sabbath (cf. also Tur ibid. and Ephraim Margolis, Yad Ephraim to Orah Hayyim 320).

However, a new ground for doubt arises in the Shulchan Aruch (besides the doubt of violating the Sabbath in vain if the child is already dead). In Orah Hayyim 330:4, Joseph Caro gives the law according to the Talmud and Maimonides; but Moses Isserles (Poland, 16th century) says: We do not do this operation nowadays because we are no longer skilled in determining precisely whether the mother is dead or not; perhaps she is alive (i.e., in coma) and may give birth to the child naturally. However, Isserles himself in his responsa does not seem concerned with this doubt (that the mother may still be alive) and in his Re sponsum #40 he answers in the affirmative, i.e., that the operation should be performed.

As for the later authorities, they all are practically unanimous in favor of permitting the operation (even on the Sabbath and certainly on weekdays). What concerns these later authorities is whether or not the permission to perform this operation after the mother is dead may not imply the larger permission for autopsy in general, which Jewish law forbids except under special circumstances. Generally speaking, it is not permitted to mutilate (I’navvel) the body of the dead. Therefore in a discussion between Moses Schick of Ofen and Jacob Ettlinger of Hamburg (both in the first half of the nineteenth century) this matter is debated. See responsa of Ettlinger, Binyan Zion, 1:171. Moses Schick said in this discussion (in his responsa Yore Deah 347) that we may mutilate the body of a woman to save her child; and Ettlinger says that this permission does not justify general mutilation (as in autopsy) because this operation (i.e., the Caesarean) is not really a disfiguring of the body of a woman.

Moses Kunitz of Budapest (d. 1837) in Ha-M’zaref, I, 101, gives almost the exact case discussed here in answer to a question asked him by Abraham Oppenheimer. The woman was pregnant for eight months when she died. A skilled doctor said definitely that she is dead and that the baby is alive. Accepting the opinion of the skilled physician, both doubts mentioned above are cancelled. The woman is definitely dead, so the doubt mentioned by Isserles that we have not the skill to be sure when a person is dead is now obviated; and the physician says that the child is definitely alive and so the doubt discussed by Rashi and the Talmud that we may be violating the Sabbath (even if this occurred on the Sabbath) for an unnecessary purpose, since the child may be dead, is also obviated. Therefore Moses Kunitz said that the physician should operate and does not even need to ask permission of the Jewish ecclesiastical court. Moses Kunitz here actually uses the word “Caesarean” and gives the origin of the term, namely, that Julius Caesar was born by such an operation.

Jacob Reischer, Rabbi of Metz two centuries ago, in his responsa Shevus Yaacov, 1:13 at the end, not only gives permission for such an operation but ends his responsum by saying that he who performs it must be praised for doing so and his reward will be great. See also Abraham of Buczacz, Eshel Avraham to Orah Hayyim 330, who cites an authority who praises the physician for prompt action to save the child.

There is, of course, a possible complication some-what related to this question. Since the child will die unless the operation is performed very quickly, I was asked a number of years ago by a physician whether if the mother is not quite dead but is definitely dying (for example of cancer) whether we may not make sure to save the child by performing the operation before the mother is dead, although it is certain that the operation itself will definitely put an end to the mother’s life. See the discussion of this special question in Reform Responsa, p. 214 ff.

But this is a special form of the question and does not apply directly here where the physician assures us that the mother is dead. See further discussion of the matter in Eliezer Spiro (“der Muncaczer”) in his Minchas Eliezer, IV:28, and Greenwald in Kol Bo AI Avelus, p. 49, section 18, and p. 43 ff.

To sum up, if it is certain that the mother is dead and that the child is alive, there is no question that the Caesarean operation not only may be performed, but must be performed and is indeed deemed praiseworthy.

CORR 205-212

BURIAL OF FALLEN ISRAELI SOLDIERS

(Questions asked by Rabbi Moshe Zemer, Tel-Aviv Progressive Congregation)

QUESTION # 1:

The Israeli Army Chaplaincy has arranged for temporary burial in provisional military cemeteries in the Negev and in the Galilee for soldiers killed in action. The bodies will remain in these temporary cemeteries for twelve months and then will be transferred to permanent cemeteries near their homes. Many families feel this is a great hardship, that for twelve months they will have to go down to the Negev or up to the Golan Heights to visit the graves of their dear ones. Why is it necessary to keep them buried in these temporary burial places for a full year?

ANSWER:

THERE IS a general objection in the law to disinterring bodies altogether. The objection is primarily based upon the anecdote told concerning Rabbi Akiba in Baba Basra 154a. A young man (or a boy) had died. Before his death, he had sold some property from his father’s estate. The relatives insisted that when the boy had sold the property, he was a minor and, therefore, the sale to which they had objections was invalid.

They asked Rabbi Akiba whether they may open the grave in order to examine the body of the deceased, to find out whether he was an adult or not. Rabbi Akiba answered, “No, you have no right (I’navlo) to reveal the ugliness of the decaying body.” This “uglification” is the only reason in the basic Talmudic literature against disinterring a body.

After Talmudic times, other objections were developed. The most important of these is called cherdas ha-din, “fear of the judgment.” It means that if the body is disturbed, the dead (who are presumed to be somehow conscious) will fear that they are being brought to judgment and possible punishment. This strange objection to disturbing the body is cited by Joseph Caro in his Bes Josef to the Tur, Yore Deah 363. He quotes it from the early medieval work, Kol Bo. He says, “The Kol Bo has written the reason that we do not disinter the dead to move the body from one place to another because this disturbing of the body creates a (psychic) hardship for the dead, because they are afraid of judgment (and punishment).” The proof text for this idea is the complaint of the ghost of Samuel who, when he was brought up by the witch of Endor, complained to Saul, “Why hast thou disturbed my rest?” (I Samuel 28:15)

But how long must the body lie undisturbed? The answer to this is based chiefly on the Mishnah in Sanhedrin 6:6. There we are told that the courts had separate cemeteries for executed criminals. Many of our burial laws are derived from the relevant criminal laws as, for example, all the laws against delay in burial.

In this Mishnah we are told that after the flesh of these bodies has decayed, the bones of criminals are taken out and buried in their family cemeteries. The reason for waiting until the flesh is gone is that it is held that once the flesh is gone, death has forgiven all sins. Hence, based upon this, no body is to be moved from its first burial place until the flesh has finally gone.

Now it is taken as a rule that it takes twelve months for the flesh to wear away and then the bones can be moved. This is the reason why the rabbinate has decided to keep the bodies in the temporary burying place for twelve months.

What concerns us is whether it is necessary as an actual legal requirement that the bodies wait out there a full twelve months for the flesh to decay. There is an interesting landmark decision on this matter in an oftcited responsum by the Rashba, Solomon Ben Adret, # 3 8 9 in his responsa. A man and his sons traveled from Oran to Algiers on a business errand. The man turned sick in Algiers and he told his sons, “If I die here in Algiers, I want you to see that I am buried in our family cemetery in Oran.” He died, but the sons could not fulfill his request immediately because war had broken out and it was unsafe to travel to Oran. They buried him in Algiers. Then they came to Rabbi Solomon Ben Adret and asked him whether they may put quicklime into the grave to hasten the decay of the flesh. The Rabbi said that they may do so. This decision has been cited frequently in the law. In fact you will notice that Isserles, in Yore Deah 363:2, says, “It is permitted to put lime upon him in order to hasten the decay of the flesh and to bring him to the place where he had asked to be buried.” And more recently than Isserles, the famous Rabbi of Metz (1870) Jacob Reischer, in his Shevus Yaacov, Vol. 2, 97, speaks of the case in which the government prohibited the burial in the Jewish cemetery and buried the dead out in the field. He recommends that they follow the precedent of Solomon Ben Adret to put lime on the body so that they will be able to transfer it to the security of the regular Jewish cemetery. You will notice that at the end of his responsum, he mentions what should concern us about burial in the wild Negev, namely, that animals, dogs, might root about those graves in the wilds. In fact, it has become a custom, especially among the Sephardim, to follow this practice of using quicklime. Therefore if the families will consent to this procedure, the bodies may be brought back in full conformity with the law almost immediately.

If for some reason there is an objection on the part of the family to hastening the decay of the flesh in this way, there is another reason why it is quite possible to decide that they need not wait for twelve months. Joseph Caro in 363:4 speaks of waiting for the flesh to decay in those places where they bury bodies first in caves. That is because the ugliness of the body is visible and should not be touched until the bones are clean. But what if the body is originally buried in a closed coffin? What objection is there then to moving the body? While it may be argued that there is still the objection of cherdas ha-din, “fear of the judgment,” when the body with the coffin is taken, at least the primary and only Talmudic objection to seeing the ugliness of the decaying body is completely obviated. Thus, for example, Greenwald in his Kol Bo (p. 224) concludes that if the coffin is closed, the primary objection of nivvul is obviated.

There is still another strong reason why the bodies need not be kept out there for twelve months. The Talmud records that many of the scholars of Babylon were buried in Israel. Certainly there is no evidence at all that their bodies waited for twelve months in Babylon before they were buried in Israel. This is because there is special merit to being buried in the sacred soil, and that is a special privilege which should not be kept from them (see Kol Bo, p. 236). Especially it should not be kept from those who died to defend the sacred soil.

It is clear that if the rabbinate in Israel would want to decide that the bodies need not be kept out in the Negev, etc., for twelve months, they would have these three reasons for such a liberal decision: First, that the decay of the flesh could be hastened by the use of quicklime, as is well established in the law. Second, the bodies were buried in closed coffins, so the ugliness of decay is not visible and there is no nivvul. And third, the moving of the bodies is for the purpose of burying them in Eretz Yisrael, which should not be delayed.

QUESTION #2:

Army units are going out to search for the remains of fallen soldiers. The Army Chaplaincy has decided that on the Sabbath the Chevra Kadisha may not remove the remains of these soldiers. In view of the fact that fighting may break out at any moment, as well as the danger of what dogs or other animals that roam the desert may do, can we not find Halachic basis for permitting the removal of those remains lying in the open desert on whatever day they are found?

ANSWER:

THERE IS a great deal of discussion in the law as to moving the body of the dead on the Sabbath. As you correctly point out, the source is Orah Hayyim 311. There are various means of permitting the removal on the Sabbath, putting a loaf on the body, or carrying a child with the body. Isserles says that in this case it is permitted to ask a non-Jew to move the body. Surely there are enough friendly Bedouins or Druze who could help in this matter.

QUESTION # 3:

What is the basis of the law permitting families to begin their regular mourning, even though they have no absolute proof of the death of the soldier? In other words, what is the basis of the law that they may count their “seven and thirty” (shiva and sheloshim) from the moment that they give up hope?

ANSWER:

IN Yore Deah 375 there is the discussion as to when people may begin the days of their formal mourning. Caro in 375:2 quotes Raba in Moed Katan 22a, to the effect that when the body is being buried in another city, the mourners accompany the body up to the gates of their city. When they turn away from the gates of their own city (and the body is being carried on the road to the distant city for burial) the moment that these mourners in the home city turn their faces away from the gate, even though normally mourning should not begin until the body is actually buried, these mourners may begin their “seven and thirty” days of mourning because they cannot know on what date the body will be buried in the distant city. On this basis, the Gaonic handbook Semachos (chapter 2, paragraph 12), says that in other cases where the people do not know when the burial will take place (as, for example, the man whose body was swept away by a river) and they do not know when, or if ever, they can recover the body for burial, then the moment the mourners give up hope (m’she’nish ‘yo’ashu) , they should begin counting their days of mourning. This same precedent is followed in a tragic account given by Isaac Or Zorua in the Rhineland eleventh century: A Jewish businessman and his Gentile porter went on a business trip. He never returned home. When the unhappy family finally found his possessions in the hands of the porter, they were certain that their dear one was killed, his body thrown into the Rhine. Isaac Or Zorua uses the exact words of the tractate Semachos and says they should begin their “seven and thirty” from the moment of their despair (Part 2, #425). This same phrase, then, is carried over into the Shulchan Aruch, which says that for those whom the government does not permit to be buried, the relatives begin their mourning from the moment of their despair. This psychological test of the beginning of mourning is well established in Jewish law.

CORR 189-193

SOME BURIAL DUTIES

QUESTION:

An Israeli widower remarried for ten years to an American Jewess died recently and was buried in the family plot in Rochester. His sons want to know whether or not it is incumbent upon them to have him disinterred to be reburied in Israel. Furthermore, if some disagreement will arise between the wife and her husband’s sons, which of the two parties have the right to determine where he shall be buried? (Asked by Rabbi Philip Bernstein, Rochester, New York.)

ANSWER:

THE FIRST QUESTION is whether burial in Palestine should be deemed a duty and that therefore the sons should deem themselves obligated to have their father’s body disinterred and reburied there. In Yore Deah 363:1 there are mentioned three circumstances under which it would be permitted to disinter a body: first, if the body was buried with the prior intention to disinter for reburial elsewhere; second, to bury in the family plot; and third, to take the body to the Holy Land for reburial. Now it cannot be said that any of these three reasons for disinterment and reburial involves a duty to do so. If it were a duty to rebury, for example, in the Holy Land, then we would have no right to have cemeteries in the diaspora. As a matter of fact, by tradition, when Messiah comes all bodies, wherever buried, will find their way to the Holy Land to be resurrected there by the Messiah; and also it is a custom to put Palestinian earth on the body (see Isserles, ibid.) which is symbolic of Palestinian burial. Of course it is deemed preferable to be buried in the Holy Land, based on the verse: “His land (i.e., the Holy Land) will atone for His people,” (Deut. 32:43). (This traditional translation is not meant to be literal.) But although burial in the Holy Land is preferable, it is obviously not mandatory and the Shulchan Aruch, ibid., properly says, “It is permitted to disinter for this purpose.” So the sons are in no sense obligated to have the body disinterred to rebury in Israel.

The second question involved in the inquiry is the more complicated, namely: If there is a disagreement as to the question of disinterment and reburial, whose decision should be valid, the American widow’s or the sons’? Perhaps the clearest answer would be based upon the analogy in this regard between English- American common law and Jewish law. In the English-American law the widow has absolute right to determine where the husband is to be buried. If, for example, the widow is a Catholic and the husband is a Jew, then even though the husband owns a lot in the Jewish cemetery and has specifically stated in his will that he wants to be buried in the Jewish cemetery, in spite of all this the widow has the legal right to say that he shall be buried in the Catholic cemetery. Should the deceased have been a widower, then his other heirs have the right in place of his widow to determine where he shall be buried. So in our English- American law the right to determine the place of burial is bound up with the right of inheritance. The widow always inherits a certain portion of the estate and with it the right to dispose of the husband’s body.

On this basis we can make a helpful comparison with Jewish law: In Jewish law the wife is absolutely not an heir of the husband’s estate. When the husband dies the wife has the right to take only the sum mentioned in her wedding document (ketubah) and certain property which she brought into the marriage. She also has the right to be clothed, fed and housed from the estate, but she is in no sense an heir of her husband’s property; only the sons are heirs. Therefore if by analogy we have a right to connect the decision as to the place of burial with the right of inheritance, then we would say that in Jewish law only the sons are the heirs (not counting special gifts that the deceased may have made) and only they have the exclusive right to determine the place of burial of their father, and the wife who is not an heir has no such right.

That this is a justified analogy can be seen from the actual facts in Jewish law on this matter. Greenwald in Kol Bo, p. 174, states the law on the basis of the question: Who is in duty bound to pay the expenses of burial? Naturally the one who is in duty bound to pay is the one who is responsible for the burial and, therefore, has the right to make determinations about it. He states the law that it is the sons who are responsible for their father’s burial. This is implied in the statement in the Shulchan Aruch, Yore Deah 240:9, which states that the son must honor his father in death as well as in life, which is taken to mean that it is his duty to see about the burial. Greenwald bases his statement as to the son’s right upon the responsum of Yair Chaim Bachrach (Chavas Yair, # 13 9) and in turn, Bachrach bases his opinion on Moses Mintz (14th century) Responsum #53, all of whom make it clear that the son has the responsibility and privilege of burial because he is the father’s heir. As a matter of fact the Shulchan Aruch states that clearly too. In Even Hoezer 118:18 the law is given as follows: If a widow after her husband’s death has already collected the amount in her ketubah, and if after she has collected it there is no money left in the estate to pay for his burial, then even so she is not in duty bound to provide for the burial; to which Isserles adds, “Let him then be buried at the expense of the community.” This opinion is based upon a number of earlier authorities such as Asher ben Yehiel, Nachmanides, Solomon ben Aderet and others.

To sum up: Burial in the Holy Land is one of the three reasons for which disinterment is permitted, but such burial is not an obligation. As to who has the right to determine the place of burial, only the sons who are the heirs have that right.