Responsa

RRT 187-190

VISITING ANOTHER GRAVE AFTER A FUNERAL

QUESTION:

A number of people told me that they were told that it is improper to visit another grave after attending a funeral. Is there any basis in Jewish law or established custom for such a prohibition? (Asked by Rabbi Kenneth I. Segel, Pittsburgh, Pennsylvania.)

ANSWER:

ON THE FACE OF IT, it seems unlikely that such a rule should be well founded in Jewish law or custom. The reason is that the tendency in Jewish law is in the reverse direction, namely, not to put restrictions on the visiting of graves, but, on the contrary, to encourage frequent visits to the graves in order to pray at the graveside. The custom is recorded in the Talmud. Especially on fast days, people would go to the cemetery to pray (Taanis 16a), and we are also given a classic example of prayer at the grave, namely, that Caleb prayed at the grave of his ancestors to be saved from the scheming of the ten spies, who wanted to bring a derogatory report about the land of Canaan (Sotah 34b). Of course the rules developed that there were certain days that were preferable for visiting the graves, such as fast days, the eve of New Year and Yom Kippur; and contrariwise, to avoid going to the cemetery on happy days, such as Sabbath and holidays. Nevertheless, the Mishmeres Shalom, quoted by Greenwald in his Kol Bo (p. 166), says that if someone has a sick person in the house in whose behalf he wants to pray, he may go to the cemetery even on a Sabbath or half-holiday (chol ha-moed). In spite of this general permission to visit the graves for prayer, the people on their own accord have developed certain curious restrictions.

It so happens that I have answered this question before. It is found in Reform Responsa, p. 176. The following is the essence of that response:

There are a number of popular ideas about visiting graves. Many of them have no validity in the law, and the scholars who discuss them, when a question is asked, usually brush them aside as without justification. For example, there is the popular belief that after the burial the grave must not be visited within a period of twelve months. This is not so. The Tur (#344) speaks of visits made on the seventh and the thirtieth days after burial, etc. Another idea is that if one has not visited a grave for twenty years (as could easily happen when a man emigrates to another country), it is wrong for him ever to visit that grave again. Some popular opinions hold that if one has not visited a grave for ten years, he should never visit it again. These popular opinions are brushed aside as invalid (see Dudoye Ha-Sodeh, 38, where other references are found).

Where such ideas come from is hard to say. The one you ask about is not even referred to in any questions that I have seen in the literature. There may be some scholar who has dignified this popular notion with a question, but I doubt it. Therefore it is not even widespread. I have a theory as to how this particular idea arose. First, at a funeral you may not step on another grave {Yore Deah 364, to the Shach, at the end of # 2 ) . Hence, it may be that the people were discouraged from wandering away from the grave lest they tread on other graves. Second, there is a law (Orah Hayyim 224:12) that he who sees graves must pronounce a blessing, but that blessing must not be pronounced again if he sees other graves within a period of thirty days. This would seem to the people to be a discouragement from seeing too many graves in too short a time. Also, much folklore is involved. People were afraid of “the spirit of uncleanness,” “evil spirits”; therefore they rushed from the cemetery, pulling up grass, throwing it over their shoulders, and washing their hands of uncleanness when they got home. So they hurried out after a funeral.

To that responsum I might add the following source as a possible reason not to visit other graves. In some editions of the Sefer Chassidim by Judah He-Hasid, there are appended two pages known as the will of Judah He-Hasid. This is a collection of folkloristic beliefs; for example, never to build a house on land on which no house had ever stood before; not to marry a woman whose name is the same as your mother’s name, etc. This booklet had a very wide influence, even though some scholars said that the “will” was meant to apply to Judah’s own descendants, not to the rest of Jewry. Nevertheless, this folkloristic collection of customs appealed, and the booklet has had a very wide influence on Jewish folk customs. One of the regulations in this booklet is that one should not visit the same grave twice in one day. This regulation was perhaps extended to mean that one should not visit another grave after having been to an interment.

Another possible source for this folk notion is the rule, dating back to the Mishnah {Berachos 3:2) and recorded in the Shulchan Aruch {Yore Deah 354:1; see also Baer, Totz’os Chayim, p. 75), that after the interment the people present should stand in rows to comfort the mourners as they walk away from the grave. Perhaps people came to feel that if they left immediately after the interment to visit other graves, they would not be staying at the graveside of the person just buried and thus would be failing in their duty to comfort the mourners. In other words, the regulation evolved to keep the people from scattering to visit the graves of their own relatives immediately after the funeral just concluded.

Any or all of these may explain this custom, which, after all, seems to have no foundation in Jewish law or even established minhag. Even Mishmeres Shalom (Shalom Schachne Tcherniak), who gives all the latest laws and customs as to mourning, etc., makes no mention of this supposed prohibition (as far as I can find) where he discusses in great detail the laws and customs of visiting the cemetery (V, 26-32).

RRT 182-186

HALTING FUNERAL AT SYNAGOGUE

QUESTION:

The custom is growing in our city of detouring the funeral procession to pass the synagogue. The procession is halted at the synagogue door, and often El Mole Rachamim is recited there. (Asked by Rabbi Morris M. Tosk, Bayonne, New Jersey.)

ANSWER:

YOUR INQUIRY includes a number of interesting questions. Let me answer your last question first. You ask about the propriety of holding funerals in the synagogue. I have already dealt with the matter rather fully in Reform Jewish Practice (Vol. II, pp. 54 ff.) and have included nearly all the material.

Your other question concerns the custom of the funeral procession making a detour in order to pass the synagogue where there is often the recitation of El Mole Rachamim. This is a well known practice. I have heard of the custom, although I have never participated in this type of funeral procession. Since, however, it is so well known, I thought it would be an easy matter to find a discussion of it, either in the Codes or in the books of minhagim. To my surprise, there is no mention anywhere in any of the sources, as far as I could find, describing a funeral procession stopping in front of the synagogue. Why should such a well-known custom not be recorded? The only possible explanation, it seems to me, must be that the custom is not as well known or as widespread as we thought. Sometimes a custom is local in origin and therefore is not recorded. Then for some mysterious reason it becomes widespread, and one looks in vain for the expected description of the observance.

The diffusion process of a custom is exemplified in the supposed prohibition of burying a woman next to a man not her husband. The prohibition was completely unknown or disregarded in the great communities of Europe, but was followed in the province of Bukowina. Then it spread into wider observance; but you will seek in vain for a clear-cut reference to it in the codes or in the books of minhagim. So it may well have been with the custom of circuitous funeral processions arranged to pass the synagogue or synagogues. It spread from a local custom and has not yet had time to be permanently recorded.

Since there is no record of the widespread custom of halting the funeral procession at the synagogue, it seemed possible that this was a non-Jewish practice, or a folk practice, which found its way into Jewish life. But I inquired of two veteran undertakers, one Jewish and one Christian. The Jewish undertaker assured me that as far back as he remembers, at least half of Orthodox families ask that the procession be halted at the synagogue, and about half of them wanted the El Mole Rachamim recited there. The Christian undertaker told me that he knew of no Christian custom, Catholic or Protestant, to stop the procession at the gates of the church, except, he said, for Chinese families. It is evident, then, that this custom was not learned or did not seep into Jewish life from Gentile sources, but must somehow come from Jewish sources, if only in a folkloristic way.

However, although the circuitous funeral procession seems not to be recorded as such, it has some sort of authentic origin. First of all, the law required (Yore Deah 343, 4) that all work in the city cease when there is a funeral. The purpose of the cessation of work was that people might accompany the funeral procession, which was an important mitzvah. Now, of course, if there were a regular Chevra Kadisha in the city, or if the city were especially large, the duty of stopping work and accompanying the funeral was eased. These laws had specific reference at the funeral procession of a rabbi or teacher. His students had to cease their work, namely, their studies. Thus the school was closed. If the deceased was a chief rabbi of the city (av bes din) and presumably also teacher in all the schools, all the schools in the city were closed ( Yore Deah 444 : 18).

Now a rabbi’s funeral should take place in or inside of the synagogue; in fact, sometimes in the synagogue itself (or at least in the beth ha-midrash), as will be seen in the article in Reform Jewish Practice, Vol. II, pp. 54 ff. (Yore Deah 444:19). We pass over the dispute as to whether the body of the rabbi should actually be brought in or merely that the eulogy be given in the absence of the body. The fact remains that the funeral of a scholar was in one way or another connected with the synagogue building.

Now add to the fact that the study house, the beth ha-midrash, was part of the synagogue building, and since the work of study had to cease at the teacher’s funeral, it is obvious that the students would participate in the procession itself or utter prayers when the procession came to the synagogue (or more specifically, to the beth ha-midrash, the school). So the custom was primarily to bring the body of the teacher by the school {beth ha-midrash), where the students were obligated to quit their studies and participate in the service.

We must take into account the fact that there is a general tendency to democratize funeral practices in Jewish life (beginning with the Talmudic decision of Rabbi Gamaliel that all shrouds should be simple). This tendency can be seen in the matter of ceasing work in the city so that the dead can be adequately attended to. At first the law was that work needed to cease only for a scholar, and then it is noteworthy that Isserles (in Yore Deah 3 61:1) says that nowadays there is not a single Jew who has not studied Scripture and Mishnah, and therefore all deserve the cessation of work and a eulogy.

Because of this desire to equalize the status of the dead, there developed in America the custom of burying more and more of the nonscholarly dead from the synagogue sanctuary itself, a practice which was bitterly objected to by the Chochmas Adam (158:18) and by Yudelevitch in Bes-Ov, V, at the end of the volume (cf., also, Divre Malchiel, II, 93). Perhaps because people wanted to avoid that much equalization which was against the law, namely, to have more and more funerals conducted from the synagogue itself, they were contented with at least riding by the synagogue and in some cases having a prayer recited at the door of the synagogue.

A minor spur to the development of the custom was the tradition to go to the cemetery by a roundabout way anyhow. This is based on the fact that Jacob’s children took his body from Egypt to bury him in Hebron. They went by the way of the threshing floor of Attad, which was far out of the way (cf. Minhagey Yeshurun). Furthermore, there was an old custom to halt the coffin a number of times (although this halting took place in the cemetery), and that made it easier to develop a custom of pausing at the synagogue. For all these reasons, the custom of halting at the synagogue developed, although, as I have said, I have found no single mention of it in any of the Codes or in the books of minhagim.

Your final question involves the use of the prayer El Mole Rachamim. This prayer is entirely new (perhaps a hundred years old) but is spreading greatly in popularity. Greenwald, in his Kol Bo Al Avelus, says (p. 22 1) : “The prayer El Mole Rachamim has greatly spread among all circles of Jews, and no one knows who is its author. It is not mentioned in any of the books of Reshonim. ” So we are dealing here with a comparatively new but beloved prayer-song, and there is no accounting for how it may have spread, nor definite requirement for when it must be sung or recited.

RRT 95-99

FUNERALS FROM THE TEMPLE

QUESTION:

At present there is no clear rule as to which funerals may be held in the main sanctuary of the temple and which in the chapel, etc. This uncertainty can, and sometimes does, create difficulties for the families involved and for the temple also. When a family is waiting to complete funeral arrangements, and the temple needs time to decide whether the service may or may not be held in the main sanctuary, this delay often adds to the sorrow of the bereaved family; and if, for some reason, the request for the use of the temple auditorium is denied, this may create ill will for the temple. Is there a clear rule of procedure in this matter which is in consonance with our religious tradition? (Asked by Vigdor W. Kavaler, Executive Secretary, Rodef Shalom Temple, Pittsburgh, Pennsylvania.)

ANSWER:

ON THE FACE OF IT, the problem would be easily solved if the temple simply permitted the use of the main sanctuary to any member family which asks for it. However, this simple suggestion is contrary to both the letter and the spirit of the Jewish legal tradition on this matter. If we are to find a solution for the problem, it should be in consonance with the spirit of Jewish tradition. What, then, is the traditional point of view as to funerals taking place on the synagogue premises?

Basically, the traditional law is opposed to any funeral at all taking place in the synagogue! This law is derived by clear implication from the statement in the Mishnah (Megillah 4:3) which declares that even when a synagogue is in ruins, it still retains its inherent sanctity, and therefore no funeral service may be conducted there. Thus it is clear that all the more is it prohibited to hold funeral services in a sanctuary that is still in use for public worship. However, there are notable exceptions which are made to this general prohibition. The Tosefta (Megillah 3:7) takes the law to mean that no private funeral services may be held in the synagogue, but public funeral services may be held there. In his comment on Megillah 28b, Rashi, the prime authority, explains this distinction as follows: Only such funerals may be held in the synagogue as involve a public obligation of the community to participate in the mourning. That is to say, a great scholar or communal leader may be buried from the synagogue because a large place is needed so that the entire community can gather and fulfill its obligation of mourning for the deceased leader, or teacher (see further references on this decision in Reform Jewish Practice, Vol. II, pp. 55 ff.).

Of course, in the earlier centuries “community” and “congregation” were identical terms. The whole community was organized into one congregational unity, even though there may have been a number of synagogue buildings. But nowadays, when there are separate and independent congregational units in every large city, the terms “community” and “congregation” are no longer identical. Therefore the historic law must be interpreted as follows: Only such funeral services shall be held in the sanctuary at which the entire congregation owes the duty to attend; in other words, the services for the leaders of the congregation.

The question now is: Who are to be deemed “the leaders of the congregation” that would fit into this category? It is important that such a definition be clear cut and definite because the whole purpose of this inquiry is to avoid uncertainty and discussion when a family is bereaved.

It would, therefore, be in consonance with the mood of tradition to adopt the following rule: The right to hold a funeral in the main sanctuary should be given to the rabbis and officers and board of trustees of the congregation. Of course, since the presidents of the three subsidiary organizations, sisterhood, men’s club, and junior congregation, are members of the board, they are included in the above rule. This rule should apply to rabbis, officers, and trustees, past and present. Are the spouses of the above to be included in this regulation? Again, here, tradition gives us some guidance. Of all the authorities who discuss this question, only one includes the privilege of synagogue burial to the spouses, namely, Yore Deah 344:19. However, all other authorities disagree with this extension of the law and insist that only the scholar or leader himself shall have this privilege. Of course, in the older law that meant only men, but in Reform Judaism, which declares as a basic principle the religious equality of men and women, the rule shall apply to the leader or trustee whether a man or a woman. But in accordance with the weight of legal opinion, the spouse (husband or wife, respectively) of the leader, shall not be included.

All this applies only to the main sanctuary. However, the chapel (our Josiah and Carrie Cohen Chapel) is in a different category. There is a general principle in the legal tradition that if, at the time of the building of a synagogue or a chapel, a permissive precondition is made, then many prohibitions, because of this preliminary condition, may be bypassed. Our Josiah and Carrie Cohen Chapel was built and given to Rodef Shalom with a precondition, namely, the understanding that its use be not confined to regularly scheduled services, but that the chapel should be made available at all times to all who wish to enter to meditate and pray. This condition allows us to open the chapel for funeral services to any member of the congregation who requests its use. In fact, it has become an established custom with us, and with many other metropolitan Reform congregations, to allow the chapel to be used for the funeral service for any member family which requests it.

However, this practice of our congregation and others may sometimes involve a difficulty. When the deceased had many friends or the family is large, then the family may say that the chapel is too small and will request a larger auditorium, preferably the main sanctuary itself. It would be logical, therefore, for the congregation to decide that if a family is not eligible by rule to use the main sanctuary, this family, if it finds the chapel too small, may use the J. Leonard Levy Hall. This hall also has the mood of a sanctuary. It has an Ark, and services are frequently held in it during the year. The fact that the J. Leonard Levy Hall is also used for school purposes does not detract from its status as a sanctuary. On the contrary, a school ( bes ha-midrash) under certain circumstances is deemed to have a sanctity equal to that of the synagogue sanctuary ( bes ha-knesses). (See Shulchan Aruch, Orah Hayyim 151:1, which groups synagogue and study-hall in equal sanctity.)

Since, therefore, it is important to have a consistent rule as to the use of the temple premises and thus avoid uncertainty and possible unhappiness, and since tradition gives us fairly clear guidance in developing such a rule under our modern conditions, the practice should be as follows: rabbis, officers, and members of the board of trustees, past and present, are in the category of “leaders of the congregation” to whom the entire congregation has some obligation of mourning. For these, therefore, the large sanctuary may be used. All other members of the congregation may use the chapel and, if they request it, the J. Leonard Levy Hall. This rule is in accordance with the spirit of tradition and, if accepted, should be made known to the entire congregation.

RRT 205-211

THE FERTILITY PILL

QUESTION:

In recent years doctors have discovered a medicine in the form of a pill which is given to childless women and helps them to achieve fertility and even multiple births. Is such a pill, which seems to change the physical nature of the woman, permitted by Jewish tradition? (Asked by Rabbi Jonathan Brown, Harrisburg, Pennsylvania.)

ANSWER:

THE TALMUDIC LITERATURE has clear mention of medicines to prevent childbirth. They speak of “the drink of sterility” (kos shel ikrin; Even Hoezer 5:12), but I do not remember anywhere in the literature where there is mention of a medicine of the opposite effect, namely, a spur to fertility. Clearly such a medicine was not known to the ancients, since it is based on modern studies of glands and hormones, etc.

As to the general aim of these fertility pills, it is obvious that their purpose is in harmony with one of the central attitudes of Scripture. If there is any one blessing which God promises all through Scripture, it is the blessing of having many children. In Genesis (1:22) even animal nature, the fishes and the birds, are blessed by the Creator and mandated to “increase and multiply and fill the earth.” And when Adam and Eve were created (1:28), they received the same blessing that animal nature had received, to “increase and multiply.” The same blessing was given to Noah after the Flood. And when Abraham enters the land of Canaan, God’s blessing to him is that his descendants will be numerous as the stars in heaven and the sands on the seashore (Genesis 22:17). When Jacob leaves home, his father, Isaac, gives him a similar blessing (28:3). In Leviticus 26:9, the awesome chapters of blessings and curses, the people of Israel is promised, if they obey God’s commandment: “I will make thee fruitful and multiply thee.”

Of course, it may be argued that these blessings had great meaning in the early days, when our earth was largely empty, but today, with the threat of overpopulation and relatively insufficient food supplies, the old blessing to “increase and multiply” might be deemed to be no blessing at all. This may well be so, but as far as the Jewish people is concerned, the situation is somewhat different than with the world population taken as a whole. Within our own lifetime, we have lost, through mass murder, six million of our brethren, almost half the Jewish population in the world. We are again a people that is “few in number” (Psalm 105:12). To us nowadays, every Jewish child is doubly precious. For us, surely, the Biblical blessing is still a blessing. For that matter, among all peoples and all religions, there are numerous families that have been unable to have children and long for children of their own. To them, in spite of the threat of world overpopulation, the Biblical blessing is a longed-for blessing, and the modern fertility pill can be the pathway to it.

All this is clear enough from the point of view of sociology, but from the point of view of Halacha, there is much to consider in the matter of the fertility pill. The commandment to “increase and multiply” is the first commandment given in Scripture. It is the first of the mitzvos. But strange as it may seem, it is a commandment incumbent upon men and not upon women (m. Yevamos 6:6; b. Yevamos 65b; Shulchan Aruch, Even Hoezer 1:13). This means that it is a sin for a man to remain unmarried. It is his duty to provide children. But it is no sin if a woman remains unmarried. A woman may, under certain circumstances, use preventatives against conception (Nedarim 35b). But it is almost impossible to permit a man to prevent his seed from being fruitful (cf. Even Hoezer 5:12). If a man has begotten a son and a daughter, he is considered to have fulfilled his obligation “to increase and multiply.” However, even so, it is considered a sin for him not to continue to have children if he can afford to do so and is able to do so ( Yevamos 62b and Even Hoezer 1:8). But what if a woman is not fruitful? Generally the custom was, after ten years of childless marriage, for the man to divorce her and marry another (Even Hoezer 1:3 Isserles and Even Hoezer 1:14). This was indeed the custom, but it certainly was a source of sorrow. Why should efforts not be made to heal the barrenness of a woman, so that she can continue with her husband? We notice in Scripture that barren wives did not accept their fate calmly, but prayed that God would make them fruitful.

On this question as to whether a woman may resort to medical aid to become fruitful, there is some interesting discussion in recent law. Eliezer Wildenberg, in his responsa Tsits Eliezer (Vol. 11, pp. 105b ff.), has a long debate on this question. He cites the opinion of Menachem Mendel Paneth in his Sha’are Zedek, who says that barrenness is not a sickness involving physical pain, etc., for which she must seek medical aid. If a woman is barren, that is God’s decree. It is part of her nature. But Wildenberg refutes this opinion (which is rather an exceptional one) and says, first of all, that it is an established custom in all the generations that even the leaders of the community sought the help of doctors to cure the barrenness of their wives so that they might live together and fulfill the commandment. Wildenberg cites the great Spanish scholar Solomon ben Aderet, who tells of his teacher, the physician Nachmanides, who cured Gentile women of their barrenness. It is clear that to seek a cure for barrenness (even though it is not necessarily a disease involving physical pain, etc.) is well within the approval of Jewish tradition and custom.

However, the very fact that the duty to “increase and multiply” is incumbent specifically upon the man may nevertheless make a difference in the possible permissibility of the fertility pill. Let us assume, for the sake of discussion, that there is some danger to the general system in the taking of the pill. Now if a fertility medicine were given to the man, one could say that since it is his duty in Jewish law to “increase and multiply,” then he is justified in accepting some physical risk in order to fulfill the commandment. But since the woman is not at all mandated to “increase and multiply,” why should she assume any risk at all to her general health to fulfill that which she is not commanded to fulfill?

As to the above question of danger involved, I have consulted Dr. Harold Cohen, Clinical Professor of Obstetrics and Gynecology at the University of Pittsburgh. From him I have learned the following: There is no such thing as a fertility pill given to the man (who by Jewish law is mandated to “increase and multiply”). The pill is given only to the woman (who by Jewish law has no such mandate). Furthermore, as a matter of fact, there is a physical danger to the woman that may be created by the fertility pill. Her ovaries may be enlarged, and there is later danger of the necessity for surgery. Therefore physicians, in every individual case, will need to balance the physical danger against the family benefit. So, too, there will be considerable discussion in the Jewish legal literature, balancing the danger against the benefits.

So far I have found only one mention of the use of this pill. In Vol. 16 of Noam, published by Menachem Kasher (p. 43 in Kuntros Ha-refuah) , there is mention of a kadur heroyon, i.e., a fertility pill. The authority discussing this pill is concerned only with the question whether or not it may be taken on the Sabbath. On the Sabbath, sickness involving pain or danger may receive all necessary healing. But fertility pills, as also vitamin pills, do not involve physical pain which requires a doctor’s immediate attention—hence the discussion of whether the fertility pill may be taken on the Sabbath. But the very fact that the only question asked about the fertility pill was whether or not it may be taken on the Sabbath is an indication that for the present there is no general objection to it. On principle there could hardly be any objection to it. The idea of quadruplets or quintuplets was, at least on one occasion, looked upon as a blessing. When Scripture says (Exodus 1:7) that in Egypt “the Children of Israel were fruitful and multiplied,” the Midrash (cited by Rashi to the verse, of Exodus Rabba 1:8, also Yalkut Shimoni ad loc.) relates that “they gave birth to six infants in one womb.”

As the pill becomes more widely known, and the discussion concerning the dangers that might be involved is dealt with, the dangers will be weighed against the blessing the children may bring to family life. In consideration of the fact that to “increase and multiply” is one of the premier blessings of Scripture, and that the commandment to “increase and multiply” is a man’s primary mitzvah, it would seem that, although the Talmud knows only of sterility medicine, the use of the new fertility pill may win general, if grudging, approval in the law. Of course, if the medicine is someday so improved that it no longer has any harmful side effects, then it would be acceptable to the Halacha without any objection.

RRT 47-50

PROCLAIMING A NEW FAST

QUESTION:

American Protestants and Catholics are planning to proclaim a fast day in order to intensify awareness of world hunger, and also to observe this fast day as a day of prayer for the relief of world hunger. Since this proposed fast day is thus a religious observance, is there any objection to the Jewish community joining in its observance? Also, does such a fast day need to be on any special day of the week or not? (Asked by Rabbi H. B. Waintrup, Abington, Pennsylvania.)

ANSWER:

As FAR AS THE Bible is concerned, there is only one regular Jewish fast day, namely, the Day of Atone ment. But after the return from the Exile, other fast days were added marking national tragedies, such as the destruction of the Temple, the breaching of the walls of the city, etc. (i.e., the Ninth of Av, the Tenth of Teves, etc.) In addition, special fast days were frequently ordained for natural catastrophes, such as drought or the mildewing of crops or earthquakes. The whole tractate of Mishnah Taanis is devoted to a discussion of such fasts.

Then, of course, in addition to these fasts (because of the threat of drought and famine, etc.), there were fasts for special groups, such as the fast of the firstborn before the Passover. Also, the custom developed to fast on the anniversary of the death of a parent, and also to fast after a terrifying dream ( taanis cholom). In addition, chiefly among the Cabbalists, there was an ascetic motivation in adding many fasts. Thus there were fasts for the eight weeks beginning with the weekly portion Shemos (shov’vim tat), etc.

Now, on which days of the week or year may a fast day not be held? This question, interestingly enough, is the basic theme of the earliest post-Exilic, post Biblical book, namely, the Megillas Taanis, which lists about thirty days of the year on which fasts may not be held. In other words, in general, according to the Megillas Taanis, fasts may be held on any day other than those enumerated in the booklet. However, the Megillas Taanis long ago went out of vogue, and fasts could be on some of the days on which the booklet prohibits fasting.

In Mishnaic times the fasts were generally held (at least those for drought-famine) on Monday and Thursday because these were the market days on which the country folk and the villagers came into the larger cities. As for days on which fasts are not permitted, there is only one fast which may take place on the Sabbath and that is the Day of Atonement. No other fast, public or private, may take place on the Sabbath, nor may a fast take place on a holiday or a half-holiday. There is some objection to fasting during the month of Nisan. Other than these restrictions, a fast can occur at any time. If a fast day happens, because of the calendar, to fall on the Sabbath, it is postponed until the next day.

Now as to the purpose of the fast described in the question: Certainly to fast because of world hunger is in conformity with the ancient Jewish custom described in the tractate Taanis, in which almost all the fasts were for drought and hunger. If, in addition, one of the purposes of this fast is to get material help to starving lands, then certainly the purpose conforms to the spirit of Jewish tradition. The Talmud says (b. Berachos 6b) that the reward earned by fasting is deserved because of the charity given in connection with the fast.

Of course if a Reform rabbi or a group of Reform rabbis proclaim such a fast, Orthodox rabbis will not agree to it, but that is not surprising. However, if the cause is worthy, as it is, then the Orthodox rabbinate may have their own fast, as they frequently do for certain calamities which are impending.

As for the fact that the Christian churches, Catholic and Protestant, ask us to participate in such a fast, that there can be no objection to. We simply make our own declaration concurrent with theirs.

RRT 260-265

ELECTRONIC EAVESDROPPING AND JEWISH LAW

QUESTION:

May a tap obtained through electronic eavesdropping be used as evidence in Jewish law? (Asked by Rabbi Richard F. Steinbrink, Saint Louis, Missouri.)

ANSWER:

JEWISH LAW IS basically religious (canon) law, and therefore it is not surprising that many of its rules are widely different from those governing secular legal systems. Thus the Jewish laws governing the eligibility of witnesses and the admissibility of evidence are much more severely limited than those of secular legal systems. For example, a Gentile is not eligible as a witness in a Jewish court (except in the special case of freeing a woman for remarriage when her husband has disappeared, aguna). Also, a child may not be a witness, nor a woman, nor a gambler, nor may any man testify in behalf of a near relative.

Since the laws of evidence in Jewish courts are so different from those governing secular courts, it would seem meaningless to draw any analogies between the two on any matter involving the rules governing witnesses or admissible evidence. Yet such a question can be meaningful if we go beyond the actual rules (or certain rules) of evidence and try to reach the ethical basis upon which they rest. In this deeper sense, the older (Jewish) system may give some moral guidance in some of the newer legal problems. This is surely the meaning of the question here. What really is asked is: According to the ethical standards underlying Jewish legal procedure, would it be deemed morally right to use a tape obtained by electronic eavesdropping as evidence in a secular court case?

Of course it is obvious that classic Jewish law could not possibly know of the modern devices whereby voices recorded on a tape can be repeated in the hearing of the court, and used thus as testimony of guilt or of financial obligation. Furthermore, as has been stated, Jewish law as to testimony is extremely strict in defense of the innocent, or the possibly innocent, and thus reveals an especially high ethical standard. Then let us assume that the sound of the voice from the tape may be considered the same as the voice of a witness testifying. Would such a witness be accepted as competent in Jewish law even though the tape is not a living witness?

First as to criminal law, even if it were accepted as a witness (assuming that for the moment), it would not be sufficient testimony because in Jewish criminal law there must be two witnesses together in the court at the same time, both testifying as having observed the same crime at the same time. So, along with the tape, there would have to be a living witness as the second witness, and he would have to testify that he has personal knowledge through his own senses of the same crime to which the tape attests. The tape alone could not be admissible because we would not have here two independent witnesses. If it were possible for a living witness to attest the alleged fact, it is not likely that there would also be need of surreptitious eavesdropping. But at all events, the tape, even if it were acceptable as a witness, is invalid in criminal law unless there is another witness who can testify of his own knowledge to the same facts at the same time.

With regard to civil law, disputes as to debts, etc., the two witnesses do not need to have observed the facts in dispute simultaneously. However, there are certain definite restrictions to testimony other than those mentioned above which are relevant to our question. The crucial fact in Jewish legal testimony is that the wit nesses must hear the words of the judges and the judges’ warnings against false testimony, and they must submit to cross-examination by the judges (this is always the rule in criminal cases, and in case of doubt also in civil cases). It is for this reason that the preponderant weight of Jewish law is against testimony in writing (i.e., by affidavit); see Rashi to Gittin 71 a). The Tur (in Choshen Mishpot 28) cites Rashi’s opinion, but adds that Rabbenu Tarn permitted written testimony. However the Shulchan Aruch (ibid.) upholds the general rule that only oral testimony is acceptable. It is because the witnesses must hear the warning of the judges and accept cross-examination that deaf-mutes are considered incompetent to serve as witnesses in a Jewish court (see Choshen Mishpot 35:11 and also the Tur; see also Maimonides in Yad, Hil. Edus, IX. 9) . Such restrictions are all based upon the Talmud in Gittin 71 a, where certain rights are assured to deaf-mutes with regard to marriage and divorce, but they may not testify against someone else, since Scripture in Deuteronomy 17:6 says that only “from the mouth of the witnesses” can a man be condemned. There are, by the way, certain alleviations to this rule; for example, a woman who is an agunah may be freed from her unhappy state through the testimony of a deaf-mute. But this is testimony to help her and is, of course, a special case. In general, the law in all the Codes based on this Talmudic passage is that a deaf-mute is not a competent witness because he cannot hear the warnings of the judges or be subjected effectively to cross-examination.

The moral basis of this restriction is clear enough. No man can be justly condemned unless the witnesses and their testimony can be carefully scrutinized and weighed. For similar reasons (that the witness must hear the judge and may be cross-examined) only oral testimony (but not written testimony), according to most authorities, is admissible. This certainly applies to the admissibility of an electronic tape. At best it is written rather than oral testimony. At worst it is equivalent to a deaf mute because it cannot be questioned and it cannot be warned. If a living witness cunningly concocts a false testimony, he can be questioned and perhaps trapped in his deceit. But if a tape is cleverly faked, the tape itself is like a deaf-mute and cannot be spoken to.

Therefore one may say that by the moral high standards of Jewish court testimony, a tape cannot be accepted as a witness or as testimony.

Addendum

I consulted Eugene B. Strassburger, a prominent lawyer, and asked him whether any of the objections to electronic eavesdropping in American law are based upon reasonings analogous to those in the Jewish legal tradition. He answered that he has not seen a case where objection was made on the grounds (mentioned in the responsum) that the tape could not be cross examined. He mentions, however, the right of the people to be secure in their houses (i.e., privacy). Then he continues as follows: “The Fifth Amendment to the Constitution provides: ‘No person . . . shall be compelled in any criminal case to be a witness against himself.’ Electronic devices by which a defendant in a criminal case is heard to make a statement against himself violate this amendment.”

There are, indeed, similar regulations in Jewish law defending the privacy of private premises. One may not make a window overlooking a neighbor’s court. The neighbor can object on the basis of hezek r’iah (“the damage of looking”), i.e., invasion of privacy (Choshen Mishpot 154:6 ff., Maimonides, Yad, Hilchos Shechenim VII).

But more significant in Jewish law is the prohibition against a man being compelled to incriminate himself. The Talmud, in Yevamos 25b, speaks of a man’s relatives being ineligible as witnesses, and then says: “A man is considered to be his own relative and therefore may not declare himself to be evil, or criminal.” See Rashi to the passage in which he says: “A man may confess to a debt, but he may not make any confession against himself in criminal law.” So, too, Maimonides in Yad, Edus XII, 2. In fact, Jewish law seems to be even stricter than general law in this matter. Not only may he not be compelled to incriminate himself, but he may not incriminate himself even of his own free will. He is simply ineligible as a witness (even if voluntarily) against himself. Certainly by the electronic tape he is, as Mr. Strassburger says, made to incriminate himself. This is against Jewish law, as it is against American law.

RRT 84-89

RELIEVING PAIN OF DYING PATIENT

QUESTION:

A dying patient is suffering great pain. There are medicines available which will relieve his agony. However, the physician says that the pain-relieving medicine might react on the weakened respiratory system of the patient and bring death sooner. May, then, such medicine be used for the alleviation of the patient’s agony? Would it make a difference to our conclusion if the patient himself gave permission for the use of this pain-killing medicine? (Asked by Rabbi Sidney H. Brooks, Omaha, Nebraska.)

ANSWER:

LET US DISCUSS the second question first, namely, what difference would it make if the patient himself gives permission for the use of this medicine, though he knows it may hasten his death? There have been some discussions in the law, in recent years, of the difference it would make if a dying patient gave certain permissions with regard to the handling of his body after death. For example, he might ask for certain parts of the usual funeral ritual to be omitted; and some authorities say that he may permit autopsy. If I remember rightly, this permission was given by the late Rabbi Hillel Posek of Tel Aviv. But all these statements giving the dying man the right to make such requests deal with what shall be done with his body after death, but not any permission that he may give for hastening his death. After all, for a man to ask that his life be ended sooner is the equivalent of his committing suicide. Suicide is definitely forbidden by Jewish law.

However, we are dealing with a person who is in great physical agony. This fact makes an important difference. A person under great stress is no longer considered in Jewish law to be a free agent. He is, as the phrase is, onuss, “under stress” or “compulsion.” Such a person is forgiven the act of suicide; and the usual funeral rites, which generally are forbidden in the case of suicide, are permitted to the man whose suicide was under great stress. The classic example for this permissibility is King Saul on Mount Gilboa. His death (falling on his sword) and the forgiveness granted him gave rise to the classic phrase, in this case, onuss k’Shaul. Thus, in many cases in the legal literature, the suicide was forgiven and given full religious rites after death if he was under great stress in his last days. See the various references given in Recent Reform Responsa, pp. 114 ff., especially the example of the boys and girls being taken captive to Rome who committed suicide (b. Gittin 57b); the responsum of Jacob Weil, 114; of Mordecai Benet, Parashas Mordecai, Yore Deah 25; and the other responsa given in Recent Reform Responsa.

However, a caution must be observed here. The law does not mean that a person may ask for death if he is in agony, but that it is pardonable if, in his agony, he does do so. In other words, we must apply the well known principle in Jewish law, the distinction between l’chatchillo, “doing an action to begin with,” and b’di’avad, “after the action is done.” In other words, we do not say that “l’chatchilo it is permissible for a man to ask for death, but b’di’avad, if under great stress he has done so, it is forgivable.”

So far we have discussed the situation from the point of view of the action of the patient. Now we must consider the question from the point of view of the physician. Is a physician justified in administering a pain reliever to a dying patient in agony when the physician knows beforehand that the medicine will tend to weaken his heart and perhaps hasten his death?

Jewish traditional law absolutely forbids hastening the death of a dying patient. It requires meticulous care in the environs of the dying patient, not to do anything that might hasten his death. (All these laws are codified in the Shulchan Aruch, Yore Deah 339. See the full discussion in Modern Reform Responsa pp. 197 ff.) If, therefore, this were definitely a lethal medicine, the direct effect of which would be to put an end to the patient’s life, the use of such medicine would be absolutely forbidden. But this medicine is not immediately, or intentionally, lethal; its prime purpose and main effect is the alleviation of pain. The harmful effect on the heart of the patient is only incidental to its purpose and is only a possible secondary reaction. The question, therefore, amounts to this: May we take that amount of risk to the patient’s life in order to relieve the great agony which he is now suffering?

Interestingly enough, there is very little discussion in the classic legal literature, beginning with the Talmud, about the relief of pain. Most of the discussion deals with the theological question of why pain is sent to us and how we are to endure it and our attitude to God because of it. As for the paucity of reference on the relief of pain, that can be understood because, after all, in those days they had very little knowledge of opiates or narcotics. However, the Talmud does mention one pain-killing medicine which could be used in the ceremony of piercing the ear of a slave {Kiddushin 21b). This is the basis of all modern legal discussions as to whether an anesthetic may be used in circumcision. See Current Reform Responsa, pp. 103 ff. It should be noted in that responsum that most of the scholars agree to the permissibility of the relief of pain, at least in that ceremony.

But in the case which we are discussing, it is more than a question of relieving the pain of a wound or an operation. It is a question of relieving pain at the risk of shortening life. Now, granted that it is forbidden to take any steps that will definitely shorten the life of a patient (as mentioned above), may it not be permitted, in the case of a dying patient, to take some risk with his remaining hours or days if the risk is taken for his benefit?

This question may be answered in the affirmative. The law in this regard is based upon the Talmud (Avoda Zara 27a and b). There the question is whether we may make use of a Gentile physician (in that case, an idolater). What is involved is enmity on the part of an idolater toward the Israelite and the fact that the physician may, out of enmity, do harm to the patient. It makes a difference in the law whether the man is an amateur or a professional. The latter may generally always be employed. Also, the present state of the patient’s health makes a difference, as follows: If the patient is dying anyhow, more risks may be taken for the chance of his possible benefit. The phrase used for these last dying hours is chaye sha’a, and the general statement of the law is that we may risk these fragile closing hours and take a chance on a medicine that may benefit the patient, (cf. Shulchan Aruch, Yore Deah 154). See Modern Reform Responsa, p. 199, and especially the classic responsum on this subject by Jacob Reischer of Metz, Shevus Yaacov, III, 75. In other words, this is the case of a dying patient, and the law permits us, in such a case, to risk the chaye sha’a for his potential benefit.

However, this does not quite solve the problem. The law permits risking the last hours on the chance of curing the patient. But may we conclude from that permission the right to risk the last hours, not with the hope of curing the patient, but for the purpose of relieving him of pain? Interestingly enough, there is a precedent in Talmudic literature precisely on this question (see the references in Modern Reform Responsa, pp. 197 ff.). The incident referred to is in Ketubos 104a. Rabbi Judah the Prince was dying in great agony. The rabbis surrounded his house in con certed prayer for his healing. But Rabbi Judah’s servant (who is honored and praised in the Talmud) knew better than the rabbis did how much agony he was suffering. She therefore disrupted their prayers in order that he might die and his agony end.

In other words, we may take definite action to relieve pain, even if it is of some risk to the chaye sha’a, the last hours. In fact it is possible to reason as follows: It is true that the medicine to relieve his pain may weaken his heart, but does not the great pain itself weaken his heart? And may it not be that relieving the pain may strength him more than the medicine might weaken him? At all events, it is a matter of judgment, and in general we may say that to relieve his pain, we may incur some risk as to his final hours.

RRT CEMETERY

DISINTERMENT OF A JEW FROM JEWISH CEMETERY FOR REBURIAL IN CHRISTIAN CEMETERY

QUESTION:

A Jewish man was married to a Catholic woman, who remained a Catholic. They have a child, who has been raised as a Catholic and is a Catholic. The man died a number of years ago, and he was buried in the Jewish cemetery in the plot of his family. His Catholic widow lives in a suburb. She is considering asking permission to have the body of her Jewish husband disinterred from his family plot in the Jewish cemetery, in order to have him buried in a Catholic cemetery in the neighborhood in which she lives. Is such disinterment permissible in Jewish law or custom? (Asked by Vigdor W. Kavaler, Pittsburgh, Pennsylvania.)

ANSWER:

THE LAWS OF THE Commonwealth of Pennsylvania (and possibly of other states also) give to a widow the right to determine in which cemetery her husband should be buried. This widow, four years ago, had decided that her husband, being Jewish, should be buried as a Jew in the Jewish cemetery, and in the plot of his family in that cemetery. Now she has changed her mind and is thinking of having his body disinterred and reburied in a Catholic cemetery. Upon inquiry from a prominent lawyer, I have ascertained that the law is as yet not quite clear as to whether the legal right of a widow to determine the cemetery in which her husband should be buried is a lifelong right of hers, and that, therefore, she may decide to disinter him and move him as often as she pleases; or whether, on the other hand, having once exercised her right at the time of his death, and having buried him in one place, her authority over the body has now ceased. Whichever way the law is, or will be decided at some later time, it is certain that the courts will take into consideration the regulations and laws of the cemetery in which he is now buried. It is, therefore, of importance to the courts to be aware of the regulations and laws of the Jewish cemetery.

As a general principle, Jewish law and custom strongly object to any disinterment at all. The body, once buried, must be left undisturbed. This is clear in the Shulchan Aruch, Yore Deah 363, which is headed: “The prohibition of removing the dead or his bones from their place.” The first paragraph states the law as follows: “We may not move the dead or the bones, neither from one honored grave to another, nor even from a less-honored grave to a more honored grave, and certainly not from an honored grave to a less honored grave.” This basic objection is, however, modified by certain special exceptions. If, for example, the body has been buried in one cemetery with the clearly announced intention of later removing it to another cemetery, such disinterment would be permitted. Also, it is permitted to move the body to a grave in the plot where his family is buried if the body had been buried in a separate grave, as the Shulchan Aruch says: “It is pleasing to a man to rest with his ancestors.” It is also permitted to move a body if it is now in some neglected place where the body might carelessly be disturbed. Such a body may be disinterred in order to be moved to a cemetery which is protected. It is always permitted to disinter a body in order to rebury in the sacred soil of Palestine. Likewise, the great authority Z’vi Ashkenazi, cited in the Pische Teshuvah to this passage, declares that it is to the honor of the dead to be disinterred from a Gentile cemetery to a Jewish cemetery.

All these are specific exceptions to the firm general principle forbidding disinterment. Certainly, since it is deemed an honor for a Jew to be buried in a Jewish cemetery, it would not be permissible to remove him from a Jewish cemetery in order to be buried in a Gentile cemetery. Furthermore, since it is particularly “honorable” in a Jewish cemetery for a man “to rest with his fathers,” and since this man is already buried in the family plot “with his fathers,” it is certainly prohibited to disinter him, even to rebury him in some other Jewish cemetery. Therefore, the request of the widow to move her husband from the family plot to a Christian cemetery is contrary both to the spirit and the letter of Jewish law and custom, and it cannot be permitted.

RRT 175-178

DISINTERMENT FROM A CHRISTIAN CEMETERY

QUESTION:

A Jewish lad of eighteen, killed in an automobile accident in a small town in Louisiana, was buried in a Catholic cemetery with Catholic rites. The family has now moved to a city (Greenville, Mississippi) where there is a Jewish congregation and a Jewish cemetery. They are desirous of disinterring their son’s body and reburying it in a Jewish cemetery. If they do this, is there any particular ritual which should be observed at the reburial? (Asked by Rabbi Allen Schwartzman, Greenville, Mississippi.)

ANSWER:

FIRST OF ALL, it is necessary to make clear that the Jewish status of this boy is not at all affected by the fact that a Catholic priest officiated with Catholic rites at his funeral. Hundreds of thousands of men and women in Spain, Marranos, were married by Catholic priests and buried by Catholic priests in Catholic cemeteries. Yet when the Marranos escaped to Jewish communities, even centuries after, their Jewish status was unquestioned as long as their mothers were Jewish. The Catholic rituals can have no status in Jewish religious law. The Jew remains a Jew. This is confirmed by scores of responsa. Therefore, in coming to their decision, the parents need not lend any weight to the fact that the boy was buried by Catholic rites in a Catholic cemetery.

Now the question is whether his body should be disturbed by disinterment. There is a large amount of accumulated law on this matter, going back to the opinion of Rabbi Akiba in the Talmud (Baba Bathra 155a), and the laws have reached codal form in the Shulchan Aruch (Yore Deah 363). In general, Jewish tradition is averse to disinterment. The reason for the disinclination to disinter goes back to the Talmud, where Rabbi Akiba forbade the disinterment of the body of a young man in order to settle some financial question. What was involved was whether the deceased boy was adult enough for a certain sale of property in which he had participated to be valid. Rabbi Akiba said that one must not “deface the body” for such purposes. This objection does not apply here as it did in the old days, when they buried without a coffin; the body would certainly have been disfigured when it was taken out of the grave. Here, the whole coffin is removed and the body is not disfigured This argument, that moving the whole coffin does not involve what Rabbi Akiba called “disfiguring the dead,” was used by the great authority, Chacham Zvi Ashkenazi (rabbi of Amsterdam and Hamburg, 18th cent.). There is also another objection to disinterment, but it does not apply here either, and since it is folkloristic, there is no need to go into it.

Now, from the more positive side: Is it right to disinter and rebury the body? The Shulchan Aruch, after giving its general objections to disinterment, immediately gives a series of valid exceptions under which it is proper, and even obligatory, to disinter and transfer the body. A number of these permissions apply quite directly in this case. If, for example, the family intends to have a family plot in the cemetery in Greenville, then we can say that the reburial can be permitted, because a man may be disinterred to be buried with his family. Of course, some strict Orthodox authorities would not consider it a family burying place unless the parents, for example, were already buried there; but we can interpret that liberally and say that he would be in the midst of his family some day. Of course, if there were close relatives of his already buried in the Greenville cemetery, even the strict Orthodox objections would fall away. As a matter of fact, Chacham Zvi Ashkenazi, whom we have cited above, deals precisely with this question (disinterring a Jew buried in a Christian cemetery) in his responsum # 5 0, and chiefly for the reasons mentioned above, considers it a duty to remove the body from a Christian cemetery to a Jewish one.

As for services at the reburial, none are really re quired. In the very last section of the Shulchan Aruch which speaks of these matters ( Yore Deah 403 ), it does not mention any service ritual. There is some requirement of mourning (keriah, etc.) for an hour, at the time when the disinterment takes place; but even with regard to this ceremony, there is no justification for requiring that it be done. The great Hungarian authority, Moses Sofer, had a decision to make with regard to wholesale disinterment from a cemetery which was, I believe, confiscated by the government. He actually forbade anybody to tell the various relatives when the disinterment would take place so that they should not be required to mourn. As for prayers and Kaddish, etc., all these are primarily for the honor of the dead and are not too strictly required. If, for example, a man would ask before his death not to have these prayers, there is considerable ground for omitting them. So they are not indispensable and are not required at reburial. Of course, if you judged that some prayers—a psalm and Kaddish, for example—would be of consolation to the living, there would certainly be no objection to reciting them.

To sum up: The fact that he was buried with Catholic rites in a Catholic cemetery has no bearing on the Jewish status of the deceased. The objections to disinterment based upon the danger of defacing the body (nivvul ha-mayss) do not apply when the body is in a sealed coffin. It is considered by Chacham Zvi, who was a great authority, that to rebury from a Christian to a Jewish cemetery is a righteous act. Finally, since in the Jewish cemetery there is a greater likelihood of his being at rest near the graves of his kin, it is certainly proper to rebury him. As for services, they are not required, but, if helpful, there is no objection to them.

RRT 163-166

REMOVING THE DEAD ON SABBATH

QUESTION:

A man died on the Sabbath. The physician demanded that the body be removed at once (from the hospital?). The Jewish undertakers came and took the body to their establishment. Then an objection was raised that it is forbidden to do so on the Sabbath. What is the law on the matter?

ANSWER:

THERE IS CONSIDERABLE law on the matter of moving the dead on the Sabbath. The law is complicated in many ways. First, the question of removal involves the various premises—”private premises,” “public premises,” and neutral premises (karmelis). The strictest prohibition against moving objects on the Sabbath is from private to public premises. Then there are differences as to methods of removal: (1) by sliding the body from bed to bed—a sort of unintended moving (min ha-tsad); or (2) by putting a loaf of bread or a child with the body—a sort of incidental moving; or (3) by asking Gentiles to move the body. Then there is a variety of possible reasons for moving the body on the Sabbath: (1) if it is in the sun and is decomposing; or (2) if it is in a fire and may be burned; or (3) if it is in a shameful place; or (4) if it is in a place where it hinders worship.

All these complications preclude a simple answer to the question of whether it is permitted to move a body on the Sabbath. Nevertheless, a study of the development of the law shows an increasing tendency, on the part of the authorities, to be permissive in this matter.

The source of the law is in the Talmud (b. Sabbath 43b), where the method is given as to how to slip the body (from bed to bed) out of the sun into the shade. Then follows a discussion of what to do in case a body is caught in a fire. Rashi, commenting, concludes that in case of fire the body may be moved completely, i.e., from private to public premises. Asher ben Jehiel agrees with Rashi (cf. his statement ad loc. and Piskey Horosh). Asher’s son, Jacob ben Asher, quotes his father’s opinion in the Tur (Orah Hayyim 3 11 ) . Zedekiah Ha-Rofeh (13th cent., Italy), in his famous legal work, Shibboley Ha-Leket (end of sec. # 118 ) , says that if the deceased is lying in indignity in public or in a place of ruins, he may be removed by a Gentile. If he is not in public, but in a semi-public place (karmelis), he may be removed even by Jews, because of the respect due to human beings (mipne k’vod ha-berios). The fifteenth-century Germano-Italian authority Jacob Landau (“Agur,” Laws of Removal on Sabbath, p. 38a) adds an element of permission and says: If the body is clothed, then no loaf or child is needed as accompaniment to the removal. Then he gives an actual case in which Eliezer of Metz (12th cent.) permitted the body of a Jew to be removed by Gentiles from jail (where he had died) to the house of his relatives.

From here on the law seems to grow steadily more permissive. Jacob Moellin of Mainz (14th century, responsum # 6 5 ) , after discussing the various restrictions, concludes, in general, that even for the needs of the living (i.e., not only for the honor or protection of the dead) the body may be moved; and that this is the prevailing custom. Moses Isserles to Shulchan Aruch {Orah Hayyim 311), where the laws are gathered, says, on the basis of earlier authorities, that you may tell a Gentile to remove the body. Eliakim Getz (rabbi in Hildesheim in the 17th cent., Even Hashoham # 31) says that if (on a Sabbath) a man falls from a house and the body is covered with blood, he may be moved (with a loaf of bread). Solomon Kluger (cited by Greenwald, Kol Bo, pp. 61 ff.) permitted a body to be removed from the bathhouse on the Sabbath so that the women could take their ritual baths. His contemporaries agreed with his decision. Eliezar Spiro, the famous rabbi of Muncacz, in his notes to Orah Hayyim 311, permitted the body of a Jew to be removed from a hospital on the Sabbath, for fear that the doctors would perform an autopsy. He declared this decision to be the law for future procedure (halacha l’maaseh).

Greenwald himself (cf. Kol Bo, p. 61 note) wrote a responsum on this matter to the rabbi of Oklahoma City. He was asked about moving a body on the Sabbath in the summer (when the body might decompose). He permitted it to be moved. Also, if it is in the hos pital, where the authorities insist that the body be removed, he permitted it to be moved. Then he added a strange, cautionary restriction-—when moved, it should not be taken to the Jewish undertaking parlor, lest Jewish undertakers do the embalming on the Sabbath. Of course, we need not be concerned with the latter caution, since the undertakers can be prohibited from embalming on the Sabbath. The body can be put on ice by Gentiles.

In general the law has developed in the way that Greenwald himself describes at the beginning of his discussion: “The later authorities have frequently permitted the removal of the body on the Sabbath if there is a serious need for it.” We conclude as follows:

1. The body should preferably not be moved if there is no need to do so or no authoritative demand for it.

2. The body may be moved if there is need, such as the summer heat, or if it was badly hurt in an accident, or if it is where it is disgraceful for it to remain, or if the medical authorities demand it.

3. Jews may move it, but in general it is preferable that Gentiles move it.

4. When the body is taken to the undertaking parlor, no postponable work be done on it on the Sabbath.