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.