Parshat Ki Tetze – פרשת כי תצא

Rabbi Evan Hoffman – Congregation Anshe Sholom
Parshat Ki Tetze – פרשת כי תצא
August 25, 2018 – יד אלול תשעח
Jewish tradition mandates that human remains be buried in the earth. A growing percentage of contemporary Jews are, however, opting for cremation rather than subterranean burial of an intact corpse. Rabbis, burial societies, and cemeteries have had to address this cultural change and adopt policies governing the extent to which they are willing to accommodate those desiring non-traditional funerary rites. Efforts by the clergy to convince people not to depart from traditional burial practices often are laden with emotional pleas; these typically fall flat.
In this essay, I attempt to clarify the Judaic significance of conventional burial and, toward that end, explore where cremation fits within Jewish history.
Concerning the body of someone executed by the court, Scripture admonishes: “You shall not let the corpse stay the night on the tree but you shall surely bury it on that day (Deuteronomy 21:23).” Rabbi Simeon bar Yochai found here an allusion to the principle that all corpses must be buried. When the Sasanian King Shapur asked Rav Hama for Scriptural proof of obligatory burial, the latter remained silent. Rav Aha bar Jacob was surprised that his colleague was unable to muster proof from Scripture. Incredulously, he wondered why Rav Hama did not cite Deuteronomy 21:23. The Talmud then posits that Shapur would not have found that proof-text compelling. Nor would reference to the burial of Biblical heroes and heroines (e.g., Moses, Abraham, Sarah, and Rachel) have been sufficient evidence, as that action might merely have conformed to social norms (Sanhedrin 46b).
Yerushalmi cites “you shall surely bury it” as proof of a performative commandment (Yerushalmi Nazir 55d). Torah Temimah explained that if the intention of the verse was only to have the criminal’s body removed from public display before nightfall, the first half of the verse would have sufficed. The expression “you shall surely bury it” is extraneous unless it serves to teach the broader lesson of statutory burial for all corpses. Yet, since the subject of the verse is the executed malefactor, in the view of Torah Temimah Deuteronomy 21:23 could not rise beyond the level of allusion אסמכתא, or רמז in the Bavli’s terminology; it is not full-fledged exegesis. Further proof that the Bavli did not fully accept burial as an inviolable Biblical commandment is its subsequent inquiry whether the purpose of burial is to secure atonement for the deceased or to spare the body from disgrace. If the former, the Talmud was ready to concede that burial is not always necessary.
Maimonides cited Deuteronomy 21:23 and listed same-day burial as a performative commandment applicable to all Jewish corpses, whether criminal or non-criminal (Sefer Ha-Mitzvot Asei 231). Rabbi Joseph Karo ruled that placing a corpse in a coffin but neglecting to bury that coffin in the ground violates the prohibitive commandment “you shall not let the corpse stay the night” (Yoreh Deah 362:1). In light of these rulings by these two great halakhic codifiers, it can confidently be said that rabbinic Judaism absolutely requires timely below-ground burial of the dead.
Neither the burning of a living offender as a form of capital punishment nor cremation of a corpse is foreign to Scripture. If a man has carnal relations with both a mother and her daughter, all three are to be burned to death (Leviticus 20:14). A priest’s daughter who degrades herself by whoring is to be burned to death (21:9). When Judah was alerted about Tamar’s pregnancy, he ordered: “Take her out to be burned (Genesis 38:24).” Achan, who violated the ban by taking spoils from Jericho, was both stoned and burned (Joshua 7:25). The valiant men of Jabesh-gilead rescued the bodies of Saul and his sons from Beth-shan, burned their bodies, and buried the bones (I Samuel 31:12). The priests who served at the northern shrines were executed by Josiah; he then burned their bodies atop the very altars at which they had served (II Kings 23:20).
The above examples seem to conflict with the view that every Jewish corpse deserves a dignified burial and should be protected from degradation. Hence, the rabbis understood execution by burning not to mean immolation with the victim tied to a stake and surrounded by burning faggots, but rather the pouring of molten lead down the victim’s gullet (Mishnah Sanhedrin 7:2). In this manner, death is hastily secured without inflicting visible or external damage to the body (Sanhedrin 52a). Yet this less gruesome understanding of the death penalty appears to be a late Pharisaic-Rabbinic reworking of the law in the spirit of “love thy neighbor as thyself” (Tosefta Sanhedrin 9:11). The original method, the classic burning at the stake, was witnessed by Rabbi Elazar bar Tzadok in the case of a priest’s licentious daughter. The rabbis casually dismissed his testimony on the grounds that he was a minor when the events happened or that the court in question was inexpert or Sadducean. In the Amoraic period, Rav Hama bar Tuviah burned Imarta bat Tali, a priest’s whoring daughter, at the stake. Rav Hama is memorialized in the Talmud for that horrific blunder.
The actions of the men of Jabesh-gilead could be interpreted as an emergency measure (Radak). The bodies of Saul and his sons were decaying.  Under those circumstances, burning off the remnants of the flesh and burying the bones was a greater honor to the esteemed martyrs. Yet even if the intentions in this case were noble, the later Chronicler saw fit, in recounting this episode, to omit any reference to cremation. The Transjordanian heroes are credited only with rescuing and burying the bodies (I Chronicles 10:12). This modification of the story might indicate evolving Jewish attitudes toward cremation, with the Chronicler holding a view closer to that of the rabbis than to that of the Israelites of deep antiquity.
An obscure Aggadic text known as Midrash Va-yosha and published by Adolf Jellinek describes the encounter between Isaac and Abraham at Mount Moriah. Isaac encouraged his father to sacrifice him in fulfillment of God’s command. Then Isaac added his own instructions: “Burn my remains thoroughly. Take my remains to my mother, Sarah. Place them in a receptacle in her room, so that every time she enters her abode she will remember me fondly with tears.” Though the Aggadic passage is of late provenance, it evinces an attitude toward cremation thought to be long forgotten.
Scripture repeatedly mentions burning in connection with royal funerary rites. But unlike in other civilizations where the body of the deceased monarch itself was burned on the pyre, in ancient Israel it was only some royal possessions that were burned. The ceremony was a way of showing honor to the deceased king, acknowledging that he had great wealth and that none should ever make use of his personal articles. Jeremiah prophesied that upon Zedekiah’s death he would be memorialized gloriously. “Thou shalt die in peace; and with the burnings of thy fathers, the former kings that were before thee, so shall they make a burning for thee; and they shall lament thee (Jeremiah 34:5).” When Asa died his sepulcher was filled with sweet aromatic herbs “and they made a very great burning for him (II Chronicles 16:14).” In contrast, when the unfaithful king Jehoram died, “his people made no burning for him (21:19).” While some commentators understood the burning to refer to the burning of incense – for the practical purpose of camouflaging the odor of decomposition – Tosafot Yom Tov posited that it refers to the chemicals that burn the innards of corpses during the embalming process. In his view, the Davidic kings were embalmed just as Jacob and Joseph were (Commentary to Mishnah Pesahim 4:9). The Talmud dispels any notion that the funeral pyre is an inherently pagan rite, noting that even the Patriarchs of the Gamlielian dynasty were treated to such honor upon their deaths. Onkelos the Proselyte burned a goodly sum of property upon the death of Gamliel the Elder (Avodah Zarah 11a).
There is little discussion about human ashes in Tannaitic literature, presumably because cremation was extremely uncommon in Judean society. The one Mishnaic reference is in a debate concerning whether, in a tent, human ashes convey the same impurity as would a corpse. Rabbi Eliezer said yes, they do, ruling that a quarter kav of ashes would be the minimum measure to convey impurity. But the sages ruled leniently and did not consider human ashes, irrespective of their volume, to be a source of impurity (Mishnah Oholot 2:2). The Mishnah teaches that on public fasts proclaimed to avert a calamity, ashes were placed on the heads of the communal leaders (Mishnah Ta’anit 2:1). Shockingly, Tosafot suggests that those ashes were human, and were intended to bring to mind the Binding of Isaac (Tosafot Ta’anit 15b).
While no medieval halakhist ever countenanced the cremation of a fresh corpse, Rashba permitted the application of lime to hasten the decomposition of a body being transferred from a temporary grave to the family plot (Shu”t Rashba 1:369). Rema ruled similarly in cases of the transfer of remains from a temporary crypt to the final resting place requested by the deceased in his will (Yoreh Deah 363:2).
With the advance of cremation technology in the late 19th century, the religious authorities in Europe were forced to issue opinions and establish communal policies regarding a previously uncontested issue. While the overwhelming majority of Italian rabbis opposed cremation, some were in favor of the practice, including Chief Rabbi of Rome Vittorio Castiglioni, who, in 1911, was himself cremated. In Germany there were no Orthodox rabbis endorsing cremation, and as was the case with many controversial religious issues at that time and place, the matter became subject to partisan dispute between the Orthodox and Liberal denominations. In England, Chief Rabbis Nathan Marcus Adler and Herman Adler strongly opposed cremation, but did not object to the burial of ashes in United Synagogue cemeteries. American Reform rabbis, during the height of their extremely permissive Classical Period, in 1892 ruled that cremation was not a reason for clergy to absent themselves from the lifecycle function. The Central Conference of American Rabbis did not regard cremation as “anti-Jewish or irreligious.” In 1935, shortly before his death, Chief Rabbi Abraham Isaac Kook of Eretz Yisrael was the lead signatory on an anti-cremation petition. He wrote that those promoting cremation were heretics trying to overturn the natural order and to imitate the worst practices of the heathens (Shu”t Da’at Kohen 197).
Contemporary Orthodox rabbis put forward these arguments in attempting to dissuade a parishioner from going ahead with cremation for him or herself or for a family member: 1) It is contrary to tradition. 2) Your ancestors would be displeased by your actions. 3) The Jewish cemetery may refuse to accept your ashes (though this is only a bluff). 4) Burial is more natural and environmentally-friendly than cremation. 5) The Nazis burned the bodies of our people; that alone is reason not to do it.
Given the widespread decline of religious sentiment, indifference to idle threats of communal ostracism, and ignorance of historical sensitivities, however, Orthodox rabbis are fighting a losing battle. Reality is that cremation is materially less expensive than burial. Many people find it hard to afford the comparatively high cost of a traditional Jewish burial.
With these challenges in mind, family elders, while still alive and able to exert moral influence over their descendants, need to stress to their children and grandchildren the importance of traditional Jewish burial. (The younger generations may not share all the senior generation’s religious values.) And we must support those institutions, notably Hebrew Free Burial Association, that make sure that even indigent Jews can be laid to rest in the dignified manner of our sacred heritage.