FUNERAL AND BURIAL AT NIGHT

QUESTION:

I have been informed that nowadays in Israel there are, rather frequently, funerals and burials at night. Is this justified in Jewish tradition? Should it be followed in the United States? (Asked by Louis J. Freehof, San Francisco, California.)

ANSWER:

WE MAY PRESUME at the outset that if the report is correct, and the funerals at night in Israel were conducted by the regular pious Chevreh Kadisha, the practice must surely have justification in the law and tradition. A study of the sources reveals the fact that although the matter of funerals at night has been fairly widely discussed in the legal literature, no clear-cut answer has been arrived at. Nevertheless, it can be stated that the weight of opinion, or at least of preference, is that no funerals be held at night.

Interestingly enough, the first relevant references to burial at night come from a nonrabbinical Jewish source, namely, the historian Flavius Josephus. Since he lived at the time of the destruction of the Temple, his statements reveal some of our earliest practices and attitudes. There are two relevant references from Josephus’ Antiquities. In Bk. 4, chap. 8, par. 24, he speaks of the evil son who is put to death and adds: “Let him be buried at night, and thus it is that we bury all who are condemned to die.” In other words, it was criminals who were buried at night. The second reference from Josephus is from Antiquities, Bk. 5, chap. 1, par. 14, speaking of the sinful Achan in the time of Joshua. He says of him: “He was immediately put to death and attained no more than to be buried at night in a disgraceful manner, as was suitable to a condemned malefactor.”

Clearly, then, the older Jewish practice, at the beginning of the first century, was that criminals were buried at night. Therefore, to bury a decent person at night might involve implications as to the person’s sinfulness and that there was something shameful about his life.

As far as I know, nothing further on the subject is found in the earlier rabbinic literature, in Mishnah or Talmud, except, of course, that the general law is based on Deuteronomy 21:23, and therefore the negative commandments 536 and 537 forbid the keeping of a Jewish body overnight. A person who dies must be buried the same day, as is still the Orthodox Jewish custom. The law forbidding holding the body over for the next day uses the Biblical phrase in Deuteronomy: “Thou shalt not keep him overnight” (lo solin), which might be understood to imply that since a person is to be buried the day he dies, and may not be kept overnight, it would be perhaps preferable, if he died rather late in the day, to bury him that night if there were no time sooner. Thus the law against “keeping him overnight” would not be violated.

But there are many objections cited in the law against burial at night, even though such burials would prevent the violation of the commandment not to keep him overnight. In Yore Deah 401:6, Isserles discusses the question as to whether the regular prayers for the dead, the Tzidduk ha-din and the Kaddish, should be recited if there is a funeral on the half-holidays and Succos, and at the endof that statement he says: “There are some who say that if you bury the dead at night, you may not say Kaddish or Tzidduk ha-din.” When Isserles says “There are some who say” (yesh omrim), it is not a mere reference to a chance observance. The phrase has some force of law and is generally taken by scholars as the preferable practice. Moreover, his statement that no Kaddish or Tzidduk ha-din (i.e., funeral service) can be said at night comes from the Kol Bo, a prime source of older Ashkenazic practice. Greenwald, who discusses this subject in his handbook Kol Bo Al Avelus (p. 188), mentions also that not only may Tzidduk ha-din and Kaddish not be said at night, but also a eulogy (hesped) may not be spoken at night. So if neither Kaddish nor Tzidduk ha din nor a eulogy may be said at the night burial, the service becomes surreptitious and hasty, as if there were something to be hurried up and done with, just as in the case of the criminals who, as mentioned by Josephus, were surreptitiously buried.

The second reference in the Shulchan Aruch is in Orah Hayyim 420:2, in which, again, Isserles quotes the Kol Bo that Kaddish and Tzidduk ha-din are not said if there is a burial at night. Isserles’s careful statement in Orah Hayyim, namely, “if there is a burial at night,” indicates, of course, that burials may take place at night—that they are not absolutely forbidden. For example, Jacob Reischer of Metz (d. 1733), in his Shevus Yaacov (II, responsum # 2 6 ) , speaks of a situation in which a man died on the first day of a holiday. The second day of the holiday was a Christian holiday, and it was, therefore, impossible to bury him then. Rather than keep the body over for three days, it would be permitted to bury him at night, and so Jacob Reischer says: “If there is some special need, it is permitted to bury at night.”

It may well have been that some communities followed the practice of permitting funerals at night. Meir Arik, the honored authority of the last generation, in his responsa work Minchas Pittin ( Yore Deah 263), referring to the opinions of Isserles which recommend that no funeral be held at night, says that Isserles made his decisions having in mind those communities which do not have an established custom to permit burial at night.

To sum up: It cannot be said that it is prohibited by Jewish law and tradition to have funerals at night, but it is evident that there was a strong preference against such a practice. The established custom in the early days, mentioned by Josephus, that criminals were buried at night must have left the feeling that there was something shameful about such a practice. And, indeed, some of the sources mention the fact that people are less likely to come to the cemetery at night, which, again, would diminish the honor due to the dead. Also, the established custom of not saying Kaddish or Tzidduk ha-din or a eulogy at night would make the service seem hasty, secret, and not comporting with the honor due to the departed. Nevertheless there are special circumstances (calendar, etc.) which would make it necessary for such a burial to take place. In other words, under special necessity, night burial is permitted, but under ordinary circumstances, it should be avoided.