This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: Is it possible to consecrate private property for a burial site? What are the requirements, according to Halachah - Jewish law (as opposed to secular law)? And if so, what kind of rituals does the consecration consist of and who may do so?
These
type of questions are actually most interesting for they allow us to
investigate how we have been influenced by the general Christian society
around us and how our – the Halachic -- understanding of
various matters is different. How we respond to death is one of these
areas in which the distinctiveness of the Jewish perspective is often
not truly recognized. People will, of course, note such things as shiva,
the seven days of grieving, happening after burial while Christians
generally pay their respects before burial but how many know that the
focus of Jewish Law in response to death is the actual burial. I always
find it interesting to see people attending a funeral, from the chapel
even going to the cemetery, but then being upset if there is any delay
because the grave is being covered. The perception is that the essence
of a Jewish funeral are the eulogies and prayers. While not taking away
from their importance, within the essence of a Jewish burial, from a Halachic
perspective, it is clearly more significant to cover the grave – for
family and members of the Jewish community to complete this most
important mitzvah of laying someone in his/her final resting
place – than to do anything else. The focus of a Jewish funeral is the
practical necessity, and important obligation, to bury the deceased.
Everything else is add-ons; important additions but not of the essence.
I mention this in regard to this question, for the underlying mindset of the Halacha,
as indicated by this law of burial, is important to recognize in order
to respond properly to this question. The idea of consecration seems to
imply that ground must be somehow distinguished, made holy, in order to
use it for burial. This is not the case within the Halacha.
What distinguishes a Jewish cemetery in Jewish Law is that it is a place
where Jews are buried. It is the graves themselves that declare this
land to be distinguished, not any consecration ceremony. There are
specific rules to guide us in response to how to treat a grave and a
cemetery, i.e. a collection of graves, (see, for example, T.B. Nazir 64b, 65a)
but it is the reality of graves that must be treated with respect, that
‘consecrates’ the land, not the other way around. This reflects the
simple concept that the focus of Jewish burial is the practical burial.
Having
said all this, though, in the same manner that we do have eulogies and
prayers incorporated in our funeral service – in order to maintain the
proper, Torah focus on what we are doing – we also do find a service
that is recited when a Jewish cemetery is delineated. See Rabbi Hyman Goldin, HaMadrich: The Rabbi’s Guide.
It consists primarily of the recitation of certain Psalms and other
sections of the Bible. While this service may be referred to
colloquially as a consecration ceremony, one should still recognize that
that it is really not comparable to what may be referred to as
consecration within other faiths. Such a service is not intended to
change the land but, rather, it could be said, its focus is to direct
the minds of individuals in relating to this land, in recognizing the
significance of a cemetery. In fact, while there may be some issue in
Jewish Law whether preparation alone (i.e. opening a grave before the
placement of a corpse) may create a status of a grave with consequent
restrictions, the conclusion of the Halacha is that it does not. See, further, T.B. Sanhedrin 47b,48a and Shulchan Aruch, Yoreh De’ah 349:1. In any event, the discussion concerns actual preparation in action, not simply the recitation of prayers.
Given
all this, let us now return to the original, opening question. Rather
than asking whether private property can be so consecrated, the real
question is whether one can bury on private property – and the clear
answer within the Halacha is yes. A perusal of the Bible will
show that Jews had family burial plots on ancestral land and that is
where members of a family were buried. Rema, Shulchan Aruch 363:2
states, even today, that if someone wishes to be buried at home -- i.e.
on his private land -- we listen and do not bury the person in a
communal cemetery. Of course, if this is done, steps must be taken to
ensure that the grave is treated with proper respect.
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