by R. Gidon Rothstein
5 Adar: R. Hayyim David Halevy on a Kohen’s Involvement in a Father’s Burial
A communal rabbi has to keep in mind that his congregants may come from different strands of Jewish custom. Shu”t Mekor Hayyim 2;65 offers a case where R. Hayyim David Halevy (whom we’ve seen until now through his Shu”t Aseh Lecha Rav) explains to a kohen that his community rabbi was not as careful in that regard as he should have been.
On the fifth of Adar of 5752 (1992), a kohen wrote to R. Halevy about the loss of his father (the responsum starts and ends with wishes for comfort). The neighborhood rabbi, an Ashkenazi, had been present at the father’s passing, and immediately told thekohen to leave the room and then forbade him from becoming tamei, ritually impure, through any contact with his father’s corpse. At the cemetery, he required the kohen and his male relatives to stand outside the fence and say kaddish from there.
The kohen had protested that Vayikra 21;2 says a kohen should become ritually impure for his close relatives, including a parent. The rabbi had (impatiently, it sounds like) replied that that was the halachah, and left it at that. This kohen, dissatisfied, wrote to R. Hayyim David Halevy for clarification (that he thought to do so says something about R. Halevy’s accessibility, his having established a reputation as ready to answer all questions; it also suggests that part of his role as chief rabbi of Tel Aviv was to clean up the messes and missteps of neighborhood rabbis who conducted themselves with insufficient sensitivity).
The Mitzvah to Become Tamei
R. Halevy starts with material that ratifies the kohen’s view. Tur Yoreh Deah 373 says it is a mitzvah for a kohen to become ritually impure as part of burying deceased relatives named in that section of the Torah (parent, child, brother, unmarried sister, spouse). Furthermore, the court is to compel a kohen to do so should he refuse.
Beit Yosef cited Zevachim 100 as support, where the baraita adds the story of one Yosef, a kohen whose wife passed away onErev Pesach, and didn’t want to become tamei to bury her (presumably so he could participate in offering and eating the Pesach sacrifice).
His fellow priests forced him to.
Tur also ruled that the requirement extends until the grave is covered over (yisatem hagolal). He took that from Avel Rabbati, which also quotes opinions that the kohen can/should become tamei the whole day (R. Meir) or for three days (R. Shimon). Those times tell R. Halevy that becoming tamei is not about necessity, the kohen being needed for the burial to proceed. If all that mattered were the needs of the deceased, the halachah should have been the kohen is involved as needed.
It’s similarly unthinkable that Yosef contemplated not burying his wife where she couldn’t be buried without him.
Becoming Tamei For Ancillary Needs of a Deceased Person
Terumat HaDeshen was quoted in Beit Yosef as saying this would logically extend to a kohen staying in a room with the deceased (which transfers ritual impurity through tum’at ohel, tent impurity) on Shabbat. Although it’s impossible to bury the person, staying in the room ensures the deceased will not be laid out be-bizayon, in a way that’s a disgrace, and is therefore a need.
Terumat HaDeshen noted, however, that Tosafot Pesachim 9 says the only reason to become tamei was to take care of direct needs; Tosafot Shantz elaborated, that it’s only to deal with burial, burial shrouds, or a coffin that a kohen may become tamei.Terumat HaDeshen held that we should be follow that opinion, not the implication of Avel Rabbati.
Disagreeing with a Rishon
Remarkably, R. Halevy (a late 20th century decisor) argues that Terumat HaDeshen (a respected rishon, authority from before the time of the Shulchan Aruch) read Tosafot incorrectly; he’s respectful about phrasing it, but still. R. Halevy argues that the case of Tosafot was where a kohen was checking whether a particular corpse was a nefel, a premature baby that was never viable, or that of a full-term baby. He needed to know that to determine the mother’s halachic status, such as in terms of ritual impurity and/or whether she could eat terumah.
It’s those kinds of needs Tosafot meant to rule out; watching a body to make sure it’s treated well certainly should count as a need of the deceased. Once explained this way, that whole discussion has nothing to do with whether a kohen can only becometamei if there are no others to care for the deceased. That leaves no source that implies that the kohen is restricted from becoming tamei where it’s unnecessary.
Why the Rabbi Ruled as He Did
For all that that was how R. Halevy read the situation, Shulchan Aruch records two views in Yoreh De’ah 373;5. He puts the idea that the kohen becomes tamei even she-lo letzorech, when there’s no pressing need, first, which implies that that was how he ruled. Rema preferred following the second view, (that of Terumat HaDeshen) to have a kohen become tamei only if necessary for the burial or to bring a coffin or shrouds for the deceased.
Once it’s a dispute between Shulchan Aruch and Rema, it’s clear why the Ashkenazic local rabbi ruled as he did. Except that this kohen is a Sephardi, so the rabbi should have allowed him to follow Shulchan Aruch’s view.
R. Halevy goes a step further in implicitly critiquing the neighborhood rabbi, by noting that Ashkenazic views on this issue were not uniformly in line with Rema. Pitchei Teshuva quoted the Gaon of Lissa (R. Ya’akov Lorberbaum, author of Chavvat Da’at to Yoreh De’ah and of Netivot HaMishpat to Choshen Mishpat, although he would not have pronounced them that way), who held the kohen can be in the same room as the deceased (and thereby contract ritual impurity) in case a need arose. That only makes sense if he disagreed with Rema and held there was an independent obligation to become tamei, regardless of whether a need arose.
Rema himself doesn’t say the kohen cannot become tamei, R. Halevy notes, he says “it’s proper to be stringent.” Nekkudot HaKesef (a book of glosses on Taz by the author of the Shach) also disagreed with Rema, writing that the first opinion was the more correct, and was the common custom (for kohanim to become tamei for relatives even when there was no need).
On the other hand, Bach reported and ratified Terumat HaDeshen, and said that was the common custom [they did live in different times and places, and so may have witnessed variant customs]. Whatever the reason, it supports R. Halevy’s view that Ashkenazic custom was not so univocal that this rabbi had no option but to insist on the kohen refraining from becoming tamei.
Entering the Cemetery
Where the rabbi did get it right was in keeping the kohen from entering the cemetery. That’s a function of another halachicquestion, whether a kohen may become tamei by contact with a non-relative while in the process of burying a close relative. There, Shulchan Aruch was more stringent, prohibiting it entirely. Rema allowed it on the way to burying the relative, but not the way back (which doesn’t help in terms of a cemetery, since he obviously cannot go in if he has no way of getting out).
For that reason, kohanim are (today as well) often buried at the edge of a cemetery, so the relatives can stand outside and see the proceedings.
Ritual Impurity as a Marker of Mourning
Then R. Halevy questions why the Torah would want a kohen to become tamei she-lo letzorech, where there was no need. (It was interesting to see him be puzzled by this, since R. Soloveitchik zt”l offered a similar explanation to the one he comes to, long enough ago that I feel like I have known this answer for much of my adult life; it’s a reminder that that which seems obvious once we hear it can still be news to other great Torah scholars.)
R. Halevy deduces the answer from Rambam’s language in Laws of Mourning 2;6. Rambam writes that the Torah’s pushing aside the rules of ritual impurity for a kohen to be involved with his deceased relative shows the value it placed on mourning. He’s more explicit in Sefer HaMitzvot, Obligation 37: “…the commandment that the priests become tamei for their relatives is itself the commandment to mourn; it was to emphasize its significance that the Torah expressed it regarding a kohen, who ordinarily must refrain from ritual impurity…”
That shows R. Halevy (as it did R. Soloveitchik) that becoming ritually impure was a way to show involvement with the deceased, to express in action one’s mourning the one who passed away. The surviving relative is so distraught over the loss, as it were, that he makes sure to be involved physically and not just emotionally.
On the assumption that that is true for this kohen, R. Halevy wishes him (and all of us) that we see the time spoken of in Scripture, when they shall all return to life and we will again have the company of those of our loved ones who have left us.