The Obligation to Bury

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by R. Gidon Rothstein

Last week, I took on a mitzvah we find ways not to observe, this week let’s discuss a mitzvah Jewish communities work to observe in the best possible way, burying the dead.

From the Criminals to the Rest of Us

Rambam in Obligation 231 points out we derive a general obligation to bury those who have passed away from the obligation on a court to bury criminals on the day they were put to death, Devarim 21;23, ki kavor tikberenu, you shall surely bury him, on that day. (Those put to death for worshipping a power other than God, or for being megadef, blaspheming by invoking God’s Name to express a curse on the divine, God forbid, would then be hanged, to make a point of their punishment.)

Sifrei confirms it is a mitzvah ‘aseh. Rambam throws in a tidbit, this mitzvah is the reason we call a person who has no one to take care of his/her burial a met mitzvah. Since no specific person is obligated to bury him/her, all Jews have the mitzvah, a mitzvah that pushes aside prohibitions on becoming ritually impure, such as for a Kohen Gadol, a High Priest, or a nazir, a man or woman who took a vow to abstain from grape products, haircuts, and contact with those who have passed away.

Our mitzvah says Jews must be buried, and a Jew without buriers becomes the responsibility of whatever Jew encounters that corpse. This is one of those mitzvot with an accompanying, largely the same, lo ta’aseh, Rambam’s Prohibition 66, the Torah warned against leaving the hanged overnight, confirmed by Sifrei to count as a Biblical prohibition.

Burial to Avoid Worse Outcomes

The verse says ki killelat Elokim talui, which English translations render “for the hanged are an affront to God.” Rambam instead understands it to allude to the restricted group of people who are hanged after being put to death by the court, blasphemers, either verbally, as with a megadef, or with their actions, by worshipping other powers.

I understood Rambam to mean seeing them hanging long-term draws attention to someone having committed this sin, makes it seem more reasonable, where our goal is to deter such crimes. Sefer Ha-Hinuch 537 takes it differently, thinks that if people see the person hanged, they will repeat what s/he did, will then put themselves in a position of having blasphemed (or be tempted to, perhaps).

(Minhat Hinuch wonders about a non-Jew put to death for these crimes. He cites Rashi’s reason, the sight of the son of a king hanging embarrasses the king, and Minhat Hinuch therefore assumes it would not apply to non-Jews. He seems to assume the idea of people bearing the image of God is only true of Jews, perhaps ever since the Giving of the Torah. He concedes Ramban assumed the obligation does apply—equally– to non-Jews.]

The expansion of the obligation to bury to all Jews, let alone to all those put to death by a court, blurs all this reasoning.

Sefer Ha-Hinuch  537 brings up halachah’s assumption there were more and less serious forms of capital punishment. Those put to death in more serious ways—sekilah or serefah, being thrown off a roof and then stoned or having molten lead poured down one’s throat—were buried separately from the hereg or henek criminals, the ones decapitated or strangled. I think gradations within capital punishment is an idea deserving more thought, but it’s not our mitzvah.

Until When, For Whom, How Soon

After the buried bodies decompose, Sefer Ha-Hinuch says, the bones would be gathered and moved to the familial burial plot. The idea assumes decomposition ends a person’s corporeal existence; the punished criminal can now return to his/her family plot, his/her crime fully addressed.

Minhat Hinuch 537 notes a view quoted in Magen Avraham, even a nefel, a baby born prematurely, is buried, and adds he thinks the obligation applies to any time we have an olive’s worth from a person who has passed away.

Sefer Ha-Hinuch 536 puts the prohibition, lo talin, before the obligation (like the verse). The prohibition, however, speaks of not leaving the deceased hanging; in theory, leaving it in a room or mausoleum is not included. Sefer Ha-Hinuch folds the two together, assumes leaving unburied violates lo talin just as much as failing to fulfill ki kavor.

This is all only if it done degradingly; we are allowed to delay burial for the honor of the deceased, such as to give time for beloved relatives and friends to gather and provide proper honor. Or, as Aruch HaShulhan writes in Yoreh De’ah 347;2, we are not required to resist or circumvent governmental regulations to wait three days before burial, because it is not a lack of respect. Other valid reasons for delay, in his view, include to secure a burial shroud or build a coffin.

[He does not explain why the government would make such a rule, and I could not find anything about it online. My guess is that it was to ensure the person had really passed away.]

In such cases, he says to wash the deceased right away, fully prepare it for burial, then wash it again after the three days have passed.

Defining That Day

Minhat Hinuch 536, in Kometz Ha-Minhah, his added later comments, writes that he had gotten hold of Shu”t Radbaz 1;311, where Radbaz was asked why we do not make sure to bury before sunset, to fulfill “for you shall surely bury him ba-yom ha-hu, that day.”

Radbaz argued we define the day based on the opening of the verse, not to be malin, not to allow the corpse to stay in its hanged position overnight. While I would have said he meant the obligation and prohibition are linked to each other (as we saw Sefer Ha-Hinuch assume), Radbaz instead limited the obligation of ki kavor tikberenu to those hanged by a court. For others, there is no positive obligation, only the prohibition to leave it overnight.

Minhat Hinuch thinks Rambam’s Laws of Sanhedrin 15;8 gives that impression, because he writes only there is a positive obligation to bury those put to death by the court. Aruch HaShulhan Yoreh De’ah 357;1 wonders at the claim, because there would then seem to be no reason to extend the prohibition to others.

Regardless of Rambam’s view, Sefer Ha-Hinuch clearly includes all who have passed away in the obligation as well. Minhat Hinuch adds that the author of Sefer Ha-Hinuch was an important authority himself [he says it was Re’ah, a contemporary of Rashba, but traditional and academic sources dispute the idea], and Ramban’s commentary on the Torah sounds that way as well.

Therefore, we should be stringent to bury the person before sunset.

In 537, Minhat Hinuch also thinks we must bury someone who passed away at night before the break of dawn, or we violate halanah.

[His reading is less than ironclad in two ways. First, when Sefer Ha-Hinuch includes all Jewish deceased in the obligation, too, I would have thought that was his understanding of Rambam, especially since Rambam in the Sefer Ha-Mitzvot seems to say it very explicitly.

Second, he assumes kavor tikberenu ba-yom ha-hu must mean before sunset. I could imagine that since the same verse has lo talin, not leaving it overnight, it is telling us that for these purposes, ba-yom ha-hu, that day, extends to the next morning. As is true for sacrifices, for example.]

At a very basic level, if we make sure Jews are buried, we have done what was needed. This Torah mitzvah adds the importance of doing it as quickly as is most honorable to the person who passed away, plausibly including non-Jews, all a way to honor people and the God in Whose image we have been made.

About Gidon Rothstein

One comment

  1. Also relevant, Arukh haShulchan OC 526 (which AhS Yomi recently learned on Sep 3-5. Shabbos through yesterday).

    In it we see how shitos that allow burial on yom tov sheini or via a non-Jew on yom tov rishon were more prevalent in the days of rishonim than later. In particular see se’ifim 9-10, where the AhS brings shitas Rabbeinu Tam, that even on the second day of Yom Tov, one ought have the work done by non-Jews. In se’if 9 he founds Rabbeinu Tam on concerns that we don’t concern ourselves with: (1) there was a nation that suppressed Shabbos and Yom Tov observance, so that if we had a leniency in YT for the dead, that nation would have said “See, you do dig / violate techum / whatever… on Yom Tov!” And (2) a concern that the ignorant would confuse a leniency for the sake of burial with the act being allowed altogether on Yom Tov. The nation no longer is around, and the Ri shows from other cases that we don’t usually ban things because the ignorant may misunderstand. And yet in se’if 10 the AhS continues by saying that still, many hold like Rabbeinu Tam, and the Rama says this stringent take is the custom in Germany and Eastern Europe (“אבל באשכנז ובמדינות אלו – אין נוהגין כן. אלא כל היכי דאפשר באינו יהודי – עושין”).

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