Responsa

NRR 250-251

HYPNOTISM

QUESTION:

Is hypnotism as a therapeutic method permitted in Jewish law? (Asked by Sonia Syme, Detroit, Michigan.)

ANSWER:

THE PROCESS of putting a person to sleep was known in ancient India and in ancient Persia, but the idea of using this medically was created by Mesmer (hence “mesmerism”) just two centuries ago in Vienna. I mention this dating so you can understand that Jewish law could know nothing about it.

But, of course, one might say that there is a good example of it in the Bible. When God wanted to remove a rib from Adam to create Eve, we are told He put him into a deep sleep; and the Ramban (Nachmanides), who was also a physician, said that God put him into a deep sleep in order that he should not feel the pain of the operation. In other words, we might call this hypnotism as a means of anesthesia.

Again, in Scripture, God was involved with a human being falling into a deep sleep. That was in the case of Abraham, when God made a special covenant with him (Genesis 15:12 ff.). We are told there that the deep sleep came upon Abraham, accompanied by a feeling of great terror, and in this sleep God revealed to him the exile of his children as slaves in Egypt, and the Midrash to the passage says that in that sleep there was revealed to him all the exiles (four of them) that would take place in the future. So here God used deep sleep, not as an anesthetic as with Adam, but as a means of transmission of ideas.

Whether these two cases could serve as an indication of the permissibility of hypnotism, one cannot say. However, this must be stated as a general principle: If it is a patient who is dangerously sick, the Sabbath, which is the strictest of all laws, must (not may) be violated in his behalf, and all other prohibitions in the law, such as kosher food, etc., may be violated for him.

So without stressing the two narratives mentioned above, we might say that certainly hypnotism or any other remedy is permissible in Jewish law for a patient who is in a dangerous condition.

NRR 67-71

THE HOSPICE

QUESTION:

In 1967, an English doctor, Cecily Saunders, opened a new sort of institution which was called St. Christopher’s Hospice. The basic purpose of the hospice was to ease the process of dying for terminal patients. The hospice proved so popular that similar institutions and organizations with the same motivation have spread rapidly across the United States. The question has now been raised whether the motivations and the methods of the hospice idea are in conformity with the spirit of Jewish legal tradition. (Asked by Sonia Syme, Detroit, Michigan.)

ANSWER:

A DISCUSSION of this question involves an analysis of the motivation for the hospice as an institution and a movement and its relationship to present medical practice with regard to a terminal patient. Dr. Saunders, herself a practicing physician and undoubtedly working in hospitals, had come to the conclusion, with which many now agree, that a hospital is not the proper place for a dying patient. A hospital is primarily directed to the task of curing a curable patient. So, for example, certain practices directed to the task of curing are followed in a hospital. The patient, when needed, receives all sorts of medicines, injections, and is often attached to various tubes, etc. Also, in general, visiting by relatives and friends is kept to a minimum. All this is deemed by the hospital to be necessary to the process of curing and is, therefore, quite justified.

But suppose it has become clear that the patient cannot be cured. Even so, the hospital practice in dealing with this incurable patient will tend to follow the practice used for a curable patient. There will be a continuation of the chemotherapy and tubes and electrical machines as if the patient could still be cured. Also, the patient is still kept relatively isolated from his family and thus often dies in loneliness, even though this isolation was no longer necessary, since no cure was possible. Therefore, because hospitals tend to follow with the incurable the methods for the curable, Dr. Saunders established, one might say, a special sort of hospital, one specifically for the dying. It is a bright building where relatives come as often as they wish. The patient, of course, gets medical relief for pain, but above all, he spends his last weeks surrounded by his dear ones and is allowed to die in dignity.

The hospice idea has spread in the United States. But so far there are only one or two special buildings provided for this purpose. Mostly there are, in most American cities, organizations devoted to the essential hospice idea, namely, that the dying patient is allowed (as it is believed) to die in dignity, helped and consoled by the presence of his or her dear ones, and without being forced to undergo such medical treatments as are no longer necessary. Also, there will be religious and psychiatric help for the patient, providing him or her with the mental and emotional means to face the inevitable end with equanimity. This is the aim which is now sought for in institutions or through the hospice idea in the dying patient’s home. Even in the original institution, St. Christopher’s in London, the patients spend most of the time at home. The question now is, what is the attitude of Judaism to this idea and method?

The first question that concerns us is this: How does the patient know that his case is terminal? If part of the hospice idea is to inform the patient that he is no longer curable and that he is dying, and this is the first step in the hospice process, then it must be stated at the very outset that to tell a patient that there is no longer any hope for cure, even if this is a fact, is contrary to the spirit of Judaism. We are told in the Talmud (Berachos 10a) that when King Hezekiah was sick, Isaiah said to him, “Put your house in order because you are going to die.” But Hezekiah rejected this dire prophecy and said, “I have it as tradition from my father’s house [i.e., David’s] that even if a sword is hanging above a man’s head, he should not give up hope for deliverance.” As a matter of fact, Isaiah’s prediction that Hezekiah’s case was terminal proved to be wrong, and King Hezekiah recovered. This idea of not telling a patient that he is going to die finds its expression in Jewish law (Yore Deah 338). If, for example, we ask a terminal patient to make confession of his sins (based onb. Shabbat 32a), we must reassure him by saying, “Many make confession and do not die.” Furthermore, we do not suggest confession in the presence of ignorant people or of women and children, lest they burst into tears and sadden the dying man. The exact words used are “lest they weep and break his heart” (based on the Tur, ibid.). No coffin must be brought where the patient will see it. No weeping relatives must be allowed in his presence (cf. Tur, ibid.). However, we may assume that in modern times a patient does not have to be told outright that his case is hopeless. He generally gets to know it in one way or another. So we may well assume that the hospice will not need to tell the patient that he is going to die, but is dealing with patients who already know that they will not recover.

Now the purpose of the hospice is to change the hospital practice of keeping the patient undisturbed and alone, except, of course, for the reluctant permission given to the closest relatives. Instead, the hospice encourages the family to be present through all the terminal stages. This idea that the dying should not die alone is fully in accordance with Jewish law. The Shulchan Aruch states (in Yore Deah 339:4) that when a person is dying, it is actually forbidden to leave his presence, so that his soul should not leave him while he is alone. See, also, Isserles, who says that it is actually a mitzvah to be in the presence of the patient as he is dying, and Moshe Rifkes, in his Be’ er Hagolah, says that the purpose of this is that the person should not die in a state of sorrow. In other words, the idea of the hospice that there is consolation in the presence of dear ones and friends at the time of dying is an idea which is fully in accord with Jewish tradition.

As for the final purpose of the hospice—that a dying patient should not be subjected to all the tubes and other methods which prevent him from dying, but which cannot possibly prevent his death but only delay it—all such forcibly keeping of the dying patient alive is contrary to Jewish tradition. A man has the right to die in dignity. (See all the references involved in this question in Modern Reform Responsa, pp. 197 ff., the responsum entitled “Allowing a Terminal Patient to Die.”)

To sum up, then, it would be contrary to the spirit of Jewish law to tell any patient that there is no hope and that he is going to die. However, if the patient already knows this, then the purposes of the hospice idea—namely, that the patient should be surrounded by his dear ones during his last days, and that he should not be surrounded and subjected to useless medical apparatus and practice—all this is fully in accord with Jewish tradition.

It might be added that since part of the work with the dying patients in the hospice may involve the transmission of religious ideas which are consoling, there is a great deal in Jewish tradition which would well be usable for this purpose. Just to mention three instances: Job (3:13), speaking of death, refers to it as a quiet sleep. He says, “For now [i.e., had I died] I would have lain still and been quiet; I should have slept and then had been at rest.” In fact, even more than the idea that death is peace and rest is the thought ascribed to Rabbi Meir (Genesis Rabba 9:5) that death is one of God’s most blessed creations. He refers to the fact that God, having performed the work of Creation, commented and said, “It is very good.” Rabbi Meir said that among the things that God considered very good, i.e., a boon to mankind, in His Creation, was also the blessing of death.

Also, because Scripture says of Moses and Aaron that they died by the Mouth of God (Numbers 3 3:3 8, Deuteronomy 34:5) i.e., the Word of God, the Talmud (Berachos 8a) takes this to mean that they died with God’s Kiss. Since then, every peaceful, quiet death is described as mayss b’n’shika, “death by the Kiss of God.”

NRR 114-116

NOT USING THE CHEVRA KADISHA

QUESTION:

The congregation has a Chevra Kadisha which provides a minyan and a meal of consolation, etc., to the families of the bereaved. They perform this service both for members and non-members of the congregation. Some citizens, members or non-members, wish the funeral to be so private that they do not have the Chevra Kadisha participate. Have the people the right to do so? May the rabbi officiate at such funerals? (Asked by Rabbi Albert A. Michels, Sun City, Arizona.)

ANSWER:

IT MUST BE understood at the outset that the status of the Chevra Kadisha is different in the United States from what it was in the Old World. There the congregation or the various congregations were part of a united community, and the Chevra Kadisha was a communal organization. Therefore all members of the community had the right to the services of the Chevra, and the Chevra had the right to deal with all deaths. But even so, a person was not necessarily bound to turn the body over to the Chevra, as can be seen from the fact that many a time a body was buried in another city and the local Chevra had little to do with it except, perhaps, to aid in the transportation.

Here in America the Jews do not have one community, but belong to separate congregations. Therefore, as far as non-members of the congregation are concerned, there can be no mutual obligation between them and the Chevra of a congregation to which they do not belong. As for members of the congregation, it may well be considered that when they joined the congregation, the implication was that they accepted the congregational constitution, which involves use of the Chevra Kadisha.

But even so, members of the congregation have rights with regard to the funeral arrangements, and, in fact, the deceased also has rights (as our father Jacob had the right to say where he would be buried). That right is clearly stated by Isserles in Yore Deah 362:2. Or a man may have the right to say he wants no eulogy. But no one, whether the deceased himself or his family, has the right to request anything that is contrary to Jewish law. For example, if a person left the request or the family makes the request that the body not be buried (as in the case of the modern plans of cryobiology), such requests, being contrary to Jewish law, are not to be heeded (Yore Deah 348:3).

Therefore the question comes down to whether what your Chevra Kadisha provides is required by Jewish law or is merely a custom. For example, is the minyan really required? True, of course, the mourner must stay at home for a week, although why is it not enough if he prays privately at home? Must there be a minyan? Isserles (Yore Deah 384:3) says it is a mitzvah to have these services at the home, but Joseph Caro does not mention it as a requirement. But we may count the minyan, therefore, as an established custom, at least among the Ashkenazim. As for bringing food to the bereaved, it is true that they may not eat their own food for the first meal; so that, too, may be counted as an established custom.

Therefore we may conclude that in America, where the Chevra is not communal but congregational, non-members are certainly not required to have its services. As for members, they have a stronger requirement to use the Chevra, but they, too, need not be mandated to observe whatever is not strictly a mitzvah.

As for the rabbi, it is his duty to officiate for all Jewish people, and he certainly cannot refuse. Even a Kohen must defile himself for a mayss mitzvah, and burying the dead has become, in America, a mitzvah incumbent upon the rabbi, especially if the family requests his service.

NRR 265-266

CHAROSES

QUESTION:

A friend found the charoses difficult to digest because of the presence in it of rough ingredients, perhaps like shells of nuts. Is it necessary to have such material to make up the bulk to fulfill the requirements of the mitzvah? (Asked by Rabbi Mark Staitman.)

ANSWER:

THE BASIC question involved is whether the charoses is a mitzvah that requires a blessing. If it is, then there must be a certain definite bulk to it, at least to the amount of an olive, for a blessing to be recited. The question as to whether it is a mitzvah, and therefore requires a blessing and the bulk of at least an olive, is discussed at the very earliest stage of the Halachah. In the Mishnah in Pesachim 10:2, one rabbi says it is not a mitzvah and another rabbi says it is. The discussion is continued through the Talmud, and finally Maimonides concludes ( Hil . Chometz 7:11) that it is a mitzvah, not in the Torah sense but in the Rabbinic sense. This leaves open the question whether it needs a blessing, because some Rabbinic mitzvahs do require a blessing and some do not. The final conclusion is that it does not require a blessing, and Maharil is cited to this effect (see the opinions marshaled in Pachad Yitzchok, s.v., charoses). The reason given is that the herb does not require a blessing and the charoses is merely secondary to it or auxiliary to it. Therefore, since it requires no blessing, it requires no special amount, and the rough material can be left out without question.

By the way, the recipe for charoses is discussed by Isserles in Orach Chayim 473:5. You will find it interesting that Bertinoro, who was Italian, speaks of figs as its basic material, and Isserles speaks of apples. In the Shulchan Aruch, Caro is careful that the herbs be the proper amount, but Isserles does not mention any amount.

NRR 247-249

SALT FOR THE BREAD BLESSING

QUESTION:

Is it required to have salt on the table when the blessing over bread is made, and is it required, also, that the bread be dipped into the salt? (Asked by L.S.F.)

ANSWER:

FROM THE VERY beginning, salt was a very important part of the ritual. The sacrifices in the Temple (and before that in the Tabernacle in the Wilderness) could not be offered without salt. Leviticus 2:13 reads, “And every meal-offering of thine shalt thou season with salt; neither shalt thou suffer the salt of the covenant of thy God to be lacking from thy meal-offering; with all thy offerings shalt thou offer salt.” Numbers 18:19, speaking of offerings, reads in a general way, “It is an everlasting covenant of salt before the Lord unto thee and to thy seed with thee.” Thus salt was considered to be a symbol of God’s covenant with Israel in general.

From the idea that the salt with the sacrifices was a symbol of the covenant with God, there was a logical transition to believe that also at the blessing over bread, as with sacrifices on the altar, salt should be present as a symbol of covenant with God. Thus the Talmud, speaking of the one who breaks bread (i.e., the one who makes the blessing of the bread for the company, breaking off a piece of the loaf for the blessing) says as follows,’ ‘The one who breaks bread is not permitted to break the bread until they bring him salt or condiment [lifton]” (Berachos 48a).

However, two facts are to be noticed about this statement. First, the condiment need not necessarily be salt—it could be any other condiment that the bread could be dipped in; and secondly, the rabbi, Rava Bar Samuel, who is the author of the statement, ate a meal at the house of the Exilarch and made the blessing over the bread without any salt. When asked whether he had changed his mind as to his former requirement that there should always be salt at the blessing over the bread, he said that it was not necessary here to delay the blessing (i.e., to wait for salt). This Rashi explains by saying that it was good bread and did not require any condiment. In fact, the Tosfos to the passage says, “We are not accustomed to bring on our table either salt or other condiment because our bread is of high quality.”

The same ambiguity as to requiring salt is reflected in the law as given in the Shulchan Aruch. In Orach Chayim 167:5, Joseph Caro first states the law as given in the Talmud, namely, that salt or other condiment must be brought so that the one who gives the blessing can dip the bread into it. But then Joseph Caro continues by saying that if it is pure bread, already seasoned “as our bread is,” it is not necessary to wait for salt to be brought. However, Isserles says as follows, “At all events, it is a mitzvah to have salt on the table before the blessing is made, because our table is like the altar and our food is like a sacrifice, and it is said ‘and all thy sacrifices thou shalt bring salt.’ ”

To sum up, it is not an absolute requirement to dip the bread in salt, especially if the bread does not require the condiment. However, because of the association with the sacrifices on the altar, which always did require salt, Isserles states it is proper to have the salt. It is clear that those who omit using the salt, if their bread is of good quality and well seasoned, do not actually violate any law.

NRR 179-181

A SURVIVOR’S SENSE OF GUILT

QUESTION:

A survivor of a concentration camp is under psychiatric care because of a deep sense of guilt. He and his wife were together in camp, and she became pregnant by him. Then the Nazis issued an orderthat all pregnant women be killed. Now the man feels that he was guilty of the death of his wife. What help can be given to the psychiatrist from the point of view of Jewish law? (Asked by Sonia Syme, Detroit, Michigan.)

ANSWER:

WHATEVER MISFORTUNE occurs to one dear to us, it is almost a natural impulse for us to feel guilty. We think that if we had only done something different or said something different, the misfortune to our dear one might never have occurred. In this manner, decent, kindly people embitter their own lives. The question here is, how can this husband, who survived while his wife was killed by the Nazis, emerge from this cloud of self-assumed guilt?

A person under this load of guilt must seek for a rational refutation of this pathetic emotion. If he is guilty because his wife was killed, who should be guilty for all the Jewish children who were led to the slaughter? If the parents of these murdered innocents are alive, should they feel that if they only had not had these children, the children would not have suffered? Or should the parents of the many adults who were killed, if any of those old people are alive, feel guilty that they produced these lambs for the slaughter? Such a pathetic sense of guilt of a parent generation for having brought children into a world of misery, or a sense of guilt imputed by the children to these parents for having brought the unhappy children into the world, is quite natural and, in fact, is found a number of times in Scripture. Job in Chapter 3 curses the day in which he was born and that his mother brought forth a man-child destined for misery. And also the Prophet Jeremiah (15:10) complains retroactively, as it were, “Woe that my mother bore me to be a man of misery and strife.” These emotional feelings of guilt or imputations of guilt are a natural reaction, although of course illogical, for how could parents know beforehand what might be the fate of the children?

So in this case, too, this couple did not know beforehand of the decree that pregnant women would be killed. Of course, had they known of this decree beforehand, and nevertheless ran the risk of pregnancy knowing that it would mean death, then some sense of guilt would be understandable and even justified. The case would then be like that of a wife whose life is endangered if she becomes pregnant. In that case, Moses Feinstein, the great Or-thodox authority of our day (Igros Moshe, Even Hoezer 13), decided that the couple should either refrain from sexual intercourse or use available contraceptive devices. But this is not the case here. The couple did not know beforehand of the murderous Nazi decree. It came afterwards.

Since the intercourse occurred between husband and wife before there was knowledge of any danger to life, then the very act of intercourse deserves praise. If in the very shadow of death for both of them in the concentration camp, they wanted to produce children, this indicates a blessed and noble sense of hope that there would yet be a future and a generation of Jewish children who could live happily.

Aside from their implied hopefulness, it must also be stated that from the point of view of strict Jewish law, the bearing of children is deemed to be a supreme mitzvah, a God-given mandate. In fact, the Talmud (Yevamos 63b) and Shulchan Aruch (Even Hoezer 1:1) say that he who refrains from the effort to produce children is as if he himself is a shedder of blood (i.e., he destroys the future). The verse upon which this Talmudic decision is based is of singular appropriateness to this special situation. It is based on the words that God spoke to Noah and his family when they emerged from the Ark. The verse in Genesis 9:7 says, “Be ye fruitful and multiply,” and the preceding verse to which this is appended is, “He that sheds a man’s blood, by man shall his blood be shed.” In other words, precisely because there is murder and genocide in the world, it is a man’s mandate to participate in the preservation of the species.

We may say that Genesis 9:6 can refer to the murderous Nazis, and verse 7 refers to such as he and his wife. So let him not take on himself the guilt of the shedders of blood. What he did was his religious duty and a vote of hope in the human race and its future.

NRR 119-124

POST-FUNERAL EULOGY

QUESTION:

In this retirement-community congregation, relatives of a person who dies often make funeral arrangements in the original home of the deceased. Then, when the family returns to the retirement community, they would like to have a memorial service with a eulogy in the presence of their new friends. Is this extra eulogy (perhaps with a service) permissible according to the Jewish legal tradition? (From Rabbi Albert A. Michels, Sun City, Arizona.)

ANSWER:

FIRST OF ALL, the general attitude of the law to the giving of eulogies is closely relevant to the question asked here. The Talmud in Shabbat 105b (and codified in the Shulchan Aruch, Yore Deah 344) considers the giving of the eulogy a great mitzvah, and indeed, it is even permitted to overstate (to some extent) the virtues of the deceased. It is even deemed to be a sin to neglect giving an adequate eulogy. So, therefore, one may say that as a general attitude, giving more than one eulogy would be considered a mitzvah rather than a superfluity.

Actually, one does not need to rely upon this general mood as to eulogies. A rule with regard to eulogies is that they are not permitted within thirty days of one of the festivals. This is derived from the Talmud, Moed Katan 8a. The reason for this is to prevent a mood of gloom darkening the happiness of the festival. However, it is permitted to ignore this rule for a special eulogy for a scholar, and in discussing this, Joseph Caro to the Bes Joseph in Yore Deah, end of 344, says (describing a general custom) that people would gather in special assemblies in the month of Adar and Elul to learn the laws governing the forthcoming festivals, and at these gatherings it was customary to give eulogies for scholars. So he says specifically, in Orach Chayim 347:5, that it is the custom to have the eulogies for a worthy person even within thirty days of the festival. The matter of the additional eulogies is discussed by various scholars, especially by Jacob Reischer of Metz in his Shevus Yaacov (II, #25). So it is clear that the custom of additional eulogies long after a man’s funeral was an established custom.

As for the distinction between eulogizing scholars and average people, that distinction is fading. Often in the law they mention that the special status and privilege of a scholar is no longer to be maintained. Also, there is frequent mention of the fact that the average Jewish man is to be considered one who knows, if not the Talmud, then Mishnah or Scripture (and is scholarly). My own congregation, even though the law was known that only scholars and leaders of the community should be eulogized or their funeral conducted from the main sanctuary, nevertheless decided that any member whose family so desires shall be buried from the main sanctuary of the temple. While this is not in accordance with the strict letter of the law (see references in Reform Responsa for Our Time, pp. 95 ff.), it is in harmony with the general tendency of equality in Jewish law.

To sum up: In general, the giving of eulogy is highly praised in the tradition. Therefore, additional eulogies are in accordance with the spirit of the law. In fact, specifically, frequent mention is made of repeated eulogies given long after the man’s death, and in general we need not emphasize so much the difference between the scholarly and the unscholarly.

Addendum

Subsequently, an additional question was asked with regard to the post-funeral eulogy, namely, whether it would be proper to give the later eulogies at the Sabbath service.

At first it would seem inappropriate to have any type of funeral service or eulogy or memorial prayers on the Sabbath, when it is a duty to rejoice (Oneg Shabbas). Yet in spite of this doubt as to the propriety of marring the happiness of the Sabbath, the custom of having memorial prayers on the Sabbath has grown up over the centuries. Actually, memorial prayers for the dead, which originated in the Rhineland, were given only on Yom Kippur, but then they spread from Yom Kippur to the last days of the three joyous festivals, Passover, Shavuos, and Succos (Yizkor). The Yizkor memorial prayer certainly might be looked upon as marring the mood of the festival, since we are commanded, “Thou shalt rejoice on thy festivals.” Nevertheless, the custom became established to have the prayer on these days, perhaps because the prayer is not only sorrowful, but also brings certain consolation and peace to the heart.

So finally it was with the Sabbath; it became an established custom to have the prayer Av Ho-Racharnim, a prayer memorializing all the martyrs, on every Sabbath after the Torah reading. The German congregations recite this prayer on only two Sabbaths of the year, the Sabbath before Shavuos and the Sabbath before Tishe B’av, but the Eastern European congregations recite it on every Sabbath (with certain exceptions, such as the Sabbath on which the New Moon is blessed, but even on such a Sabbath, according to some authorities, prayers for the dead are permitted for those who died during the week).

It is not only these special prayers for the martyrs that are recited in the Sabbath service. The memorial prayers are considered prayers for the welfare of the departed and therefore are grouped together by the authorities with other prayers which are for the welfare of the living.

Perhaps the earliest source for the recital of such prayers for the dead and for the living is the Shibbole Ha-Leket by Zedukiah Anaw (Italy, 12th century). From this source (ed. Buber, p. 29b, sec. 81), many of the leading authorities quote the custom of praying for the dead and for the welfare of the living who have served the congregation and the community (Joseph Caro, in his Bes Joseph to Orach Chayim 284, and in the Shulchan Aruch, Isserles 284:7). Such prayers have become a formal and fixed part of the prayerbook to be recited after the Haftorah, namely, the Mi Sheberach and the Av Ho-Rachamim.

Besides these fixed prayers of memorial and welfare found in the prayerbooks, similar prayers were also given in a sort of extemporaneous manner when each individual was called up to the Torah. The reader would recite a Mi Sheberach in his behalf, blessing him for contributions to the synagogue, cantor, etc., or voicing a prayer for a sick person or for a woman in childbirth.

The custom of memorial and welfare, either for an individual when called to the Torah or as fixed prayers for the entire congregation after the Torah reading, all these are adequate justification for the additional memorial eulogy asked about here being given on the Sabbath. However, since the question comes from a modern Reform-type of congregation, the place in the service of these prayers and this eulogy must be different from the place in the service customary in an Orthodox congregation. It is not the custom in Reform congregations to call up seven people to the Torah, and therefore the needs of various worshipers can hardly arise as part of the Torah reading. But it has become a well-established custom in Reform congregations to have a memorial prayer before theKaddish, and in general the entire congregation joins in the Kaddish as an expression of mutual fellowship in sorrow. Some congregations also mention the names of the recently deceased at that time. Therefore, if such an additional eulogy would be given in the Sabbath service, the appropriate time would be, not after the Torah reading, as in Orthodox synagogues, but before the Kaddish.

Nevertheless, one or two words of general caution should be mentioned. The authorities are indeed concerned that the mood of the Sabbath should not be marred by such eulogies or memorials, and therefore the statement is made that no tragic or tearful eulogies be given on the Sabbath but only eulogies of an edifying nature honoring the departed for his character and his good deeds, to serve as an example to his family and the community (see especially Greenwald, Kol Bo, p. 104, #24).

Another concern must also be mentioned besides that of avoiding the mood of tragedy, namely, the concern as to unduly lengthening the service and thus making it a burden on the congregation. Burdening the congregation (torach ha-tzibbur) is always to be guarded against. So the leading authority on the laws around the Torah reading, Ephraim Margolis (Sha’ar Ephraim, Gate 4 #24), specifically says that the prayers of memorial and welfare should be kept short so as not to be a “burden to the congregation.”

This whole matter depends upon local customs, as Isserles says in his Note to the Shulchan Aruch (ibid.): “Every place follows its own customs in this matter.” Therefore, if the eulogies are likely to be too sorrowful, and if the service might be unduly lengthened by them, the congregation has the right to establish its own custom and might very well establish a special service for this purpose on Sunday morning; or, since this is a retirement community, the service could be established at any time during the week.

Nevertheless, it is clear that if the eulogies are not too tearful, but serve as an edification to the community, and if they do not unduly lengthen the service, there is no objection to their taking place as part of the Sabbath service; in fact, there is established custom in support of it.

NRR 48-52

LULAV AND ESROG AFTER SUCCS

QUESTION:

Is there any guidance in the legal tradition as to how one should dispose of the lulav and esrog after Succos is over? (Asked by Rabbi Mark Staitman, Pittsburgh, Pennsylvania.)

ANSWER:

IT IS VIRTUALLY impossible to preserve a lulav and esrog for another year. The esrog dries up, and the leaves of the lulav dry up and grow brittle. So the normal procedure has always been to get new esrogim and lulavim each year for Succos. This is the reason for the question which has been asked here, as to what is the proper mode of disposal of this year’s esrog and lulav after Succos is over.

In our religious life there is a large variety of objects must be removed when a larger Ark is needed, coverings of the Sefer Torah, mantles, etc., which get worn out, fringes (tzitzis) which get torn, etc. Therefore it is understandable that there has developed a great deal of law on the question of proper disposal of such objects when they are no longer usable.

It must be understood at the outset that these various objects are not all of equal sanctity. Some are much holier than others. So the Mishnah (in Megillah 3:1) discusses the necessary procedure when a community sells the public square. The square had a sort of a semi-sanctity because services were held there on fast-days. When the square is sold, we must use the money to buy a synagogue. When a synagogue is sold, we may buy an Ark with the money. When an Ark is sold, we may buy Torah covers with the money. When the Torah covers are sold, we may buy Torahs, etc. In other words, there is an ascending scale of sanctity, and in the case of sale of any of these objects, we always step upward in the order of sanctity, but never downward.

All this applies, of course, when there is an actual sale of these sacred objects. But what if there is no sale at all, but the sacred object was merely worn out and must be discarded, as happens with the mantle on the Torah or the Torah itself? What then should be done with them? This brings us close to the question which has been asked.

With regard to sacred objects which are no longer usable, and also with regard to objects which have already fulfilled their religious purpose, such as torn fringes or tzitzis or the walls of the Succah after Succos is over, the law makes a sharp distinction between two classes of such objects. One class is called “appurtenances of holiness” (tashmishey kedusha). The other class is called “appurtenances of a mitzvah” (tashmishey mitzvah). In the former class, the worn-out object retains its sanctity even when no longer in use. In the second class, after the object has been used in the performance of the mitzvah, it has no sanctity left at all. See the statement of Joseph Caro with regard to the broken fringes in Orach Chayim 21:1 (en b’ gufakedusha). Included in the former class, the “appurtenances of holiness,” are unused Sefer Torahs, coverings of the Sefer Torahs, tefillin, mezuzahs, etc. These objects, though now unusable, are still sacred and are to be hidden away (nignozin). Of course, “hidden away” may include burial in the cemetery.

The second class, objects which are no longer sacred after having served their purpose, includes the Succah itself, fringes torn off a tallis, the lulav, etc. These objects need not even be stored away but, as the Talmud says, they may be simply thrown away (“on the dunghill”) (cf. Orach Chayim 21:1, see the whole discussion in Megillah 26b).

One might mention here that printed prayerbooks, which could well be considered merely “appurtenances of a mitzvah” and therefore be thrown away when they become worn out, nevertheless are stored and often buried (even torn pages from old prayerbooks), as are the “appurtenances of holiness,” but that is because they contain the Name of God on almost every page.

The list in the Talmud of “appurtenances of mitzvah” which may be thrown away includes the lulav but does not mention the esrog. It is obvious, however, that the esrog also belongs to this class which has no more sanctity once it has served its purpose (i.e., tashmishey mitzvah). The proof of this is the fact that the esrog, being edible, was eaten after it had served its purposes of the mitzvah. So the Talmud speaks of the eating of the citron by children and by adults (Succah 46a), and the Shulchan Aruch states that in Israel esrogim may be eaten after Shemini Atzeres, but outside of Israel, not until after the ninth day.

In passing, a folkloristic use of the citron might also be mentioned here. It was a widespread folk-custom that pregnant women on Hoshana Rabba would bite off the bitter stem of the esrog, the reason being as follows: In Midrash Rabba (Genesis R. 15:7) there are many speculations as to what was the species of fruit with which Eve sinned in the Garden of Eden, and one opinion is that the forbidden fruit was the esrog. So the pregnant women bite the bitter part of the esrog in order to declare that they do not share in Eve’s sin and thus hope to earn God’s protection during pregnancy and childbirth (see the explanation of this folk custom in Hershovitz, Ozar Minhagim, p. 113).

Thus it is clear that the lulav and the esrog have no sacredness at all left in them after having been used in the mitzvah on Succos and thus can be disposed of off-hand. But one can easily understand how later tradition felt uneasy about treating so cavalierly objects which just a short time ago were revered as sacred during the performance of the mitzvah. Therefore folk-custom began to add precautions as to the mode of disposal of these objects. For example, the torn threads of the fringes were used by Maharil (Be’er Hetev) as bookmarks (cf. Be’er Hetev to Shulchan Aruch, Orach Chayim 21). As for the willows used on Hoshana Rabba, the note Haga’ha to Asher ben Yechiel to Megillah, Chapter IV, states that while the willows may be thrown away, they should not be trodden underfoot. And it is reported by Maharil that pious people often save the willows to light the fire later for the baking of the matzos. Thus, though discarded, they were still used for a mitzvah (cf. Isserles to Orach Chayim 664:9).

In the light of the traditional disinclination just to throw away these objects carelessly (which would be completely permissible), we may come to the following conclusion. Strictly speaking, the lulav and esrog may indeed just be thrown away (“on the dunghill”). But we would share the feelings of the past that it would be wrong to see them lying on a heap of debris in a public thoroughfare. Therefore they should be disposed of with some respect to the status which, though they now lack, they once had. They should perhaps be wrapped up carefully, so as not to be visible to any passerby, and then put away for disposal or, since when Succos is over furnaces are soon lit, they may be perhaps burned up in the furnace. This would be a decent disposal which many authorities permit even for disused prayerbook pages (see references in Reform Responsa, pp. 71 ff.).

NRR 231-235

DEPROGRAMMING YOUNG PEOPLE

QUESTION:

A considerable number of young people, Christian and Jewish, have deserted the faith of their parents and have joined various sects, such as Moonies, Hare Krishna, Jesus Cult, etc. Some parents, deeply grieved at the loss of their children to these new cults, have turned for help to the newly developed profession of “deprogramming.” These “deprogrammers” sometimes actually kidnap the young people from their various cult communes and hold them in a sort of captivity and subject them to “brainwashing” in order to “cure” them of their delusions. The question asked here is whether, in the light of Jewish tradition, Jewish parents may avail themselves of this new method in attempting to win back the hearts and minds of their young people who have left them? (Asked by Rabbi M. Robert Syme, Detroit, Michi-gan.)

ANSWER:

THE QUESTION asked here is based on an entirely modern situation which has no exact parallel in the past. Nevertheless, certain elements involved are part of universal human experience and find reaction in the pages of Jewish legal and Midrashic literature. That members of the young generation turn from the faith of their fathers has certainly occurred many times in the past. An interesting reaction to this tragic family experience is found in the first section of the first chapter of Midrash Rabba to Exodus. We are told there that Abraham’s older son, Ishmael, was attracted to idolatrous worship, which, of course, he saw outside of his father’s home; and he followed this practice and became an idolater. The Midrash, attempting to explain how the first-born son of the world’s greatest monotheist preferred idolatry, bases its explanation on the verse in Proverbs 13:24: “He who spares the rod hates his son.” In other words, this happened to Ishmael because Abraham never disciplined the boy and let him follow his own predilections. That this is a frequent family experience is indicated by the rest of the Midrash. The Midrash asks: How was it that Isaac’s son, Esau, also picked a way of life different from his parents? Again the explanation was given that the boy was never properly taught and disciplined. The same explanation is given in the same passage as to why Absalom became a rebel against his father, David. In other words, the phenomenon of young people breaking away from the life of the parents is not an exceptional one, and it is considered in the Jewish tradition as largely the fault of the parent. The child was not properly trained and taught.

Of course, this explanation cannot be applied indiscriminately to all parents in modern occurrences of the same nature. There are so many new temptations and new methods of persuasive propaganda that were not available in the past to bear upon the impressionable minds of the young. However, parents cannot rid themselves entirely of some blame for not having provided a sufficiently meaningful religious life. This is certainly true of many modern Jewish homes.

But whether or not the parents themselves are re-sponsible to some extent, there is no question that they suffer greatly from this new isolation from their children. So they wonder, what can they do to win back the hearts of their Ishmaels and Absaloms. The question, then, arises as to whether the modern professional method of deprogramming is meaningful or acceptable in the spirit of our Jewish religious tradition.

Most of the cults chosen by the youth for their new loyalty seem superstitious or even dishonest to the parents, who find the new cults disgusting or hateful. This disgust or hatred should not be allowed to create a complete estrangement, as can easily occur. Scripture, in Leviticus 19:17, says: “Do not hate thy brother in thy heart, but first reprove thy brother.” The duty to find some way to reprove or to teach or to convince is basic in the law. The purpose of such reproving is not to denounce, but to help restore the balance of thought and judgment. The Talmud, in Pesachim 1 13b, discusses the following verse in Exodus 23:5: “If you see the animal of your enemy staggering under his burden, do not turn aside, but help.” The Talmud then asks whether this enemy is meant to be a Jewish enemy. But how can it be so, since we are forbidden in Scripture to hate our brother in our heart? The answer the Talmud gives is this: We hate not the person but the sin that we know he has committed, and what the verse directs us to do is, even though we know and hate the sin he has committed, never to refrain from helping as much as we can. This Talmudic discussion is carried on through the tradition and is codified as law in the Shulchan Aruch, Choshen Mishpot 272:11. In other words, we have at least this much guidance from tradition, that even if we hate these new cults which we feel have lured our young, we must not permit ourselves to refrain from helping as much as we can.

But is this sort of help, which often involves kidnapping and holding the young person captive, a proper mode of help? In this regard it is well to call attention to the laws concerning the instruction of the young. It is among the primary duties of the parents to train the young to a life of faith and good deeds (b. Kiddushin 29b). And by the pedagogic standards of those days, it was considered permissible to use corporal punishment. However, the law is careful to add that under no circumstance may a father use corporal punishment on a grown child because the parent will be committing the sin of “putting a stumbling-block in the way of the blind.” That particular sin is often discussed in the law, and it means to tempt a person into committing a sin, and what the law here about smiting a grown child means, then, is that the young person will be tempted to retort in anger and perhaps act with violence against his parent, which is, of course, a grave sin (cf. Tur, Yore Deah 240, end).

Therefore, hateful as some of these cults are, and serious as is the duty to rebuke, violent methods could well be counter-productive and might alienate the two generations permanently. Jewish tradition, knowing of such alienations in the past, and frequently blaming the laxity of parents for them, imposes the duty to help restore the mental and emotional balance of the estranged youth. But it is evident that the forcible methods of the modern deprogrammers today are contrary to the Jewish ideal of the relation between the generations. May those parents thus afflicted with these estrangements persevere in pa-tience and in hope. There is no easy solution.

NRR 79-84

OWNERSHIP OF THE BODY OF THE DEAD

QUESTION:

The events dealt with in this inquiry occurred a full generation ago. A prominent member of our temple was married to an unconverted Christian woman. He died, and in his will he had specified that he be buried in the lot that he owned in our congregational cemetery. His widow, however, wanted him to be buried in her Christian cemetery. Eugene B. Strassburger, the executor of the will, put the question to a group of judges, and they decided that the deceased has no ownership of his body and that his heir (in this case, his widow) has the full right to dispose of the body as she wishes. Thus the body of this man was buried in the Christian cemetery. Since such a situation may recur, the question is now asked: What is Jewish law on this matter? Who owns and has the right of disposal of a person’s body? (Asked by Eugene B. Strassburger, Pittsburgh, Pennsylvania.)

ANSWER:

ON THE FACE of it, at least from the point of view of Jewish law, the decision of the judges seems inconsistent. The American law agrees that the deceased, through his last will and testament, continues to control the disposal of his property and yet has lost all control over his own body. This would mean, also, for example, that if the deceased had provided in his will that his body be buried, and his widow preferred to have his body cremated, her decision would stand against that of the deceased. The question, therefore, is rather an important one, namely, what is the attitude of Jewish law on the general question of the right of deciding on the disposal of the body, as, for example, whether it should be buried in one city or another? In brief, who, according to Jewish law, has the ownership of the body of the deceased?

It must be understood at the outset that there is a basic difference between any canon law and secular law. Canon law, being religious, is guided by the presuppositions of religion which underlie its legal enactments. Jewish law is canon law—religious law—and therefore, underlying all discussion of the legal question involved, there are certain basic religious presuppositions. Primarily, these presuppositions can be summed up in the religious (in this case, the Jewish) concept of the human personality. A human being is more than a body. He is also a spirit, a soul, which survives after the death of the body. Therefore the person continues to be a person and to have certain personal rights even after the body dies. In Jewish lore, the man’s spirit not only persists after death (as most religions maintain) but is also believed to hover about the body for some time after death. This concept tends to give the body more than the status of a piece of clay. A number of examples will indicate how this religious belief leads to the further belief that even after death, and certainly immediately after death, the body and its accompanying spirit remain a person with certain human rights. A number of regulations are based upon this general idea. For example, it is forbidden in the presence of the dead to speak of anything except matters that concern the dead, namely, the burial, the mourning, the tombstone, etc. (YoreDeah 344:10). No idle, irrelevant chatter is permitted in the presence of the dead. Another example is the prohibition of going into a cemetery wearing phylacteries (tefillin) or carrying a scroll of the law (Torah) because the dead no longer have the privilege of observing these rituals and are presumed to be sad at not being able to have the privilege of obeying these commandments (Yore Deah 367:3). This sin of carrying a Torah, etc., into the cemetery, which presumably would sadden the departed, is called the sin of “mocking the poor,” a description based upon the verse in Proverbs 17:5: “He who mocks the poor blasphemes his Creator.” The dead are no longer in duty bound to obey the commandments (Shabbat 30a), and it is presumed that they are sad at that deprivation. Furthermore, it is deemed preferable to hold the seven-day mourning period (shiva) with the accompanying public prayers in the home where the person had lived at the time of his death. This is because of the belief that the spirit, sad at leaving this life, still hovers for a while around the home, and that the public prayers offered there bring him consolation (Chochmas Adam 165:11). In less mystic terms, we might say that the awareness of the presence of the departed is strongest in the home in which he has lived.

All these rather mystical concepts add up to the same attitude held with regard to the recently departed, namely, that the departed is more than lifeless clay but constitutes, to some extent, a personality that must be respected and that still has certain rights. These beliefs, which to some extent may be considered folkloristic, are, nevertheless, revelatory of a basic attitude of the dead as a continuing personality.

Such a basic attitude naturally is carried over into questions of practical law, as is the question which is asked here. One practical question is the following: If the departed is to be considered to some extent still a person, is this shadowy person able to acquire property? On this question, the great legalist Maimonides says flatly that the dead cannot acquire property (eyn kinyon l’mays) (Yad, Hil. Matana 10:12). However, this outright denial by Maimonides of the possibility of the dead acquiring property is controverted by other authorities. See the great Spanish scholar Solomon ben Aderet (12th century), in his Responsa #375, who discusses the following question: A man turned over a sum of money to an agent to be used for tombstones, etc., for a certain deceased. Money turned over to an agent is deemed to have been formally acquired by the person represented by the agent. But the donor changed his mind and wanted the money back from the agent, arguing that since the dead cannot acquire property, the money was still rightfully his and he could take it back. But the agent argued on the other side of the question, as follows: The Mishnah says (Shekalim 2:5) that if money is collected among friends for the dead, grave, tombstone, etc., and some money is left over, the leftover money goes to the dead man’s heirs. Clearly, then, if the dead man’s heirs may have the rest of the collected money, the dead man has indeed acquired it and has bequeathed the rest of it. Solomon ben Aderet agrees with this reasoning, and so he would hold that the dead can indeed acquire property.

Another, more telling example is the following: If the body of a slain man is found buried in a field, and the body must be removed to be buried in a cemetery, the body cannot be taken by itself, but a certain amount of earth must be taken with it on the principle clearly stated in the law that the dead acquires the place where he is put or found (Sanhedrin 47b and Yore Deah 364:3).

Among the other legal rights of the dead, besides the possibility of acquiring money or land, is the right to determine where he shall be buried. This right goes back to the earliest possible source, namely, the Torah. In Genesis 47:29-30, Jacob in Egypt calls his son Joseph and says, “When I die, do not bury me in Egypt, but take my body and bury it with my ancestors in the land of Canaan.” This wish was, of course, obeyed, and such a wish is always obeyed, as is indicated in another case cited and dealt with by the great Spanish Jewish authority cited above, Solomon ben Aderet (responsum #369 and cited by Isserles, Yore Deah 363:2). The case was as follows: A man and his sons were away from home in another city. The man was dying, and he told his sons that when he died he wanted to be buried in their home-city, where their ancestors were buried. But when he died it was impossible to carry out his wish (the roads became unsafe, perhaps because of war), and he was buried in the city in which they were temporarily. Some months later the roads had become safe again, and it became possible to transport the body. But the body by now had so decayed that it was impossible to move it (they did not use complete coffins). Thereupon Solomon ben Aderet permitted the family to put quicklime over the body to complete the decay of the flesh so that the bones could be transported and the father’s wish be carried out. Now if so drastic a step as putting quicklime on the body was permitted by a great authority for the purpose of carrying out the deceased’s desire as to where he should be buried, then it is evident how strongly founded in Jewish law is the right of the deceased to determine his resting-place.

To sum up: In Jewish law, which is a religious law, the deceased retains some personality, especially near the time following death. Therefore the deceased has certain rights of a person—the right to be respected and even, according to some authorities, the right to acquire property. But without question the deceased has the right to determine where his body shall be buried. Of course, this right of the departed to determine the disposal of his body is not an absolute right. It is limited by other requirements of Jewish law. A man has no right to demand that his body be handled in a way that is violative of Jewish law. Jewish law is opposed to cremation. It requires burial. If a man says, “Do not bury my body,” his request is not to be heeded since this request is contrary to Jewish law (Shulchan Aruch, Yore Deah 348:3). But of course, as to where his body should be buried, his right of decision cannot be controverted.