Footnotes

*The author wishes to express his appreciation to Rabbi Ronald Greenwald and Mr. Herb Keinon for their invaluable assistance in the preparation of this article.

1. Seridei Aish II, no. 125.

2. See generally Chatam Sofer Y.D. 336.

3. See Shulchan Aruch Y.D. 357:1 (mitzva to bury on day of death).

4. See Orach Chaim 311 (how to move a met on Shabbat) and 526 (permissibility of burial of dead on Yom Tov).

5. See Chachmat Adam 157:8. While the rituals of tahara (bathing and cleaning the body) are not extensively discussed in Shulchan Aruch, they are of ancient vintage. A very complete discussion appears in Zichron Meir Al Aveilut, Chapters 14-15 (Rabbi Aaron Levine) (citing early sources that compare the washing and dressing of a met to the way we treat a newborn child).

6. See text further at note 35.

7. Taken from Proverbs 17:5, this phrase is understood to prohibit the performance of certain mitzvot in the proximity of a met that might cause a met anguish due to his inability to perform them. Thus, one is not allowed to walk within 4 cubits of a met while wearing tefillin (Yore Deah 367:2, Orach Chayim 45:1) or while one's tzitzit are showing (Orach Chayim 23).

8. See text further at note 12.

9. Many demonstrators claim that unearthing the remains of the dead may prevent or hinder their resurrection at the time of techiyat hametim. While this idea finds some support in Chatam Sofer Y.D. 353 (if bones from different bodies are intermingled), Rabbi David Shmidel, the head of the Asra Kadisha, disavows such a claim. Techiyat hametim is a supernatural process and Hakadosh Boruch Hu may cause it to happen irrespective of anything we do (even cremation). He prefers to rest protests on elementary ideas of kavod hamet. Rabbi Shmidel also notes that Asra Kadisha is not necessarily opposed to construction. Indeed, in many cases, halacha may permit construction above gravesites in lieu of excavation though developers/consumers are often uneasy about exercising this option. See note 34.

10. A letter of R. Kulitz strongly opposing the French Hill excavations was issued 19 Kislev 5753.

11. See Jerusalem Post, December 24, 1995 and Washington Jewish Week, January 4, 1996 at p. 11. The "legal basis" for Peres' position is the fact that, under the 1978 Law of Antiquities, the Israeli Antiquities Authority's mandate is limited to the preservation of "antiquities" defined as "objects made by man before the year 1700" or "zoological or botanical remains from before the year 1300." Based on a decision of the Israeli Supreme Court, the State Attorney General determined that human bones of any age are not "antiquities" within the meaning of the statute and are therefore not within the control of the IAA to remove. Under the Peres proposal, the IAA could no longer license excavation where human bones are likely to be found.

12. The information in this paragraph is taken from an interview with Rabbi David Shmidel, head of Asra Kadisha, as reported in Rabbi Ronald Greenwald's report to Congressman Gilman, pp. 3-4 (June 28, 1995).

13. Letter of Eliezer Dembitz (Oct. 9, 1991), reproduced in Greenwald Report.

14. General sources on the prohibition of pinui metim include Oholot 16:3; T.B. Yevamot 63b; T.B. Nazir 64b; T.B. Baba Batra 102a; Rambam Tumat Met, Ch. 9; Shulchan Aruch Y.D. 363. A classic responsum regarding the excavation of bones in Prague authored by R. David Opennheim appears at the end of Teshuvot Chavot Yair. Rabbi Yechiel Yaakov Weinberg authored several lengthy responsa on cemetery relocation. See Seridei Aish II, nos. 125-129. The monograph-length no. 125 (which was also published as a separate booklet) is especially notable beause it contains additional comments by a number of gedolim including the Chazon Ish, R. Chanoch Agus of Vilna (Marcheshet) and R. Moshe Mordechai Epstein of Slobodka. See also Tzitz Eliezer V, no. 20 for a complete survey of the various opinions and Chavot Binyamin I, no. 25 (R. Shaul Yisraeli) for a more permissive approach. This list is only partial and other references will be cited as the discussion progresses.

15. For reasons explained in note 18, Noda B'Yehuda I, no. 89 permits excavation of bones without flesh but his opinion is rejected by a majority of poskim and indeed by the Shulchan Aruch in Y.D. 363:1.

16. The idea that pinui may be prohibited as a form of desecration (nivul) or humilation (bizui) of a corpse is expressed by Shivat Tzion no. 63 (the son of the Noda B'Yehuda who therefore rejects his father's leniency for bones) and Shvut Yaakov II, no. 103. Under this rationale, there can be no distinction between a corpse and bones; within 12 months or afterwards; or whether the met had reached the age of 20. The issur would apply in all circumstances. It should also be noted that, unlike the problem of causing charada, nivul hamet may well be an issur d'oraita. See Daat Kohen (R. Avraham Yitzchak Kook), no. 204.

It should also be noted that disinterment may involve a secondary level of bizayon for the metim that remain; moving one met implies that the other metim are unworthy of being in the first met's proximity. See Shach, Y.D. 363:5. But see Teshuvot R. Akiva Eiger, no. 45 and Seridei Aish II, no. 125 who apparently reject the secondary bizayon concept.

17. The concept of charada (trembling and trepidation) as a reason for the prohibition against disinterment was first articulated by the Kol Bo, Hilchot Aveilot based on the statement of Shmuel when he was brought back from the dead (I Sam. 28:15) "Why have you agitated me?" The Kol Bo's reason is cited in Beit Yosef, Y.D. 363 and appears to be accepted by both Taz and Shach.

It should be noted that as a variant to the charada idea, some have written that whenever a met is removed from its grave, there is in fact a new judgment that takes place. The charada is thus justified. See Teshuvot Chaim B'Yad no. 98 quoted in Tzitz Eliezer V, no. 20(19).

18. Some poskim have used the concept of charada to establish certain leniencies. Based on an interpretation of Job 14:22 ("while his flesh is upon him, he shall be pained"), once the flesh has decomposed and all that remains are bones, the body is no longer subject to Divine judgment and hence, there may be no charada when it is moved. This would permit the excavation of bones. See Noda B'Yehuda I, no. 89 (though he states other factors of leniency as well). Others permit disinterment after 12 months, see Tiferet Tzvi no. 59, or of a person who died before the age of 20. These distinctions are rejected l'halacha either because charada exists even where Divine judgment will not be forthcoming as long as the met still fears that it will be or because of the other reasons for the prohibition. See especially Seridei Aish II, no. 125, pp. 290-294.

19. Economic theft: See Sheealat David (Kuntres HaChidushim). Obviously, however, although R. David Friedman emphasizes the proprietary right to the grave, this does not comport with the normal rules of property since upon death, all property rights pass to the heirs. Presumably, respecting their "property" is an aspect of kavod hamet. See also Maharam Shick Y.D. 354-355 who cites the Gemara in Shabbat - "a board of the mishkan that was used on the north should be placed in the north" (chezkat makom).

20. See Yerushalmi Moed Katan, Chapter One and Tzitz Eliezer V, no. 20 (18).

21. See Tzitz Eliezer V, no. 20(17) and Teshuvot Chatam Sofer Y.D. no. 353.

22. See Birchai Yosef Y.D. no. 363.

23. See Shulchan Aruch Y.D. 363:1 based on Or Zaruah.

24. See Eretz Chaim Y.D., no. 364 (a grave can be removed if its location causes sewers and gutters to overflow onto other graves).

25. The source for the concept of conditional burial is Yerushalmi Moed Katan 1:5 - "originally, a person was buried in mahamorot (deep pits). After the flesh was dissolved, the bones would be removed and buried in rozim (cedar coffins). That day, the person would mourn but the next day he would rejoice saying that his fathers have respite from judgment." This institution of likut atzamot ("gathering of the bones") is based on husnu m'techila b'shaat kevurah (a stipulation was made at the time of burial). See Shivat Tzion, no. 63 and Chatam Sofer Y.D. 353.

26. The Shulchan Aruch in Y.D. 363 mentions four distinct grounds for disinterment: (1) kever avot; (2) Eretz Yisrael; (3) conditional burial; (4) unprotected grave. The implication of the mechaber is that disinterment to kever avot or Eretz Yisrael is permissible even in the absence of a stipulation at the time of burial and indeed even in the absence of any indication that this was the wish of the decedent. See also Pitchai Teshuva 363(2) (citing opinions that a met may be removed to Eretz Israel even where the person explicitly indicated this was not his wish). But see Igrot Moshe Y.D. III, no. 153 (only sons can make such a decision, not the general Jewish community).

Note too that although relocation to Eretz Yisrael or kever avot should not require the making of a t'nai at the time of burial, it is customary to always make such a stipulation whenever relocation is a possibility. See Zichron Meir Al Aveilut, p. 478 n. 24.

27. See Seridei Aish II, no. 125 for a complete discussion of this issue. But see Igrot Moshe Y.D. II, no. 162 who strongly condemned relocation of a met from Ohio to New York simply because it would be easier for the sons, all of whom lived in New York, to visit the grave.

28. See Y.D. 364:5. Such a grave may be removed even if the burial took place with the consent of the owner of the property.

29. See R. David Oppenheim, end of Teshuvot Chavot Yeir and Teshuvot R. Akiva Eiger, no. 45.

30. See Sheelat David (Kuntres HaChidushim).

31. See Chavot Binyamin I, no. 25. The 'proof' for R. Yisraeli's somewhat surprising assertion is a Gemara in Baba Batra 24b which states that if a tree is within a certain radius of a town, thereby obscuring the view, the townspeople may compel the tree owner to cut it down. If the tree preceded the town, the owner must be compensated; if the town was there first, he need not be. In both cases, his rights of private ownership yield to nizka d'rabim. Rashi states that a tree constitutes such a nezek because "there is beauty in a city when it is surrounded by space", instead of being blocked by foliage. Depriving Eretz Yisrael of this extra element of beauty constitutes nezek. R. Yisraeli reasons that the rule of kever hamazik et harabim permitting disinterment of a grave requires no greater showing of damage than is necessary to impose an obligation on a private landowner. If meniat tiferet (witholding of beauty) is sufficient for the latter, it should equally suffice for the former.

[But cf. Sheelat David (Kuntres HaChidushim) - "ki inyanei met chamurim" - "issues pertaining to a met must be treated with greater severity."]

32. In addition to a kever being forbidden, obviously a met itself is assur ba'hanaeh. The Chavot Binyamin I, no. 25, discusses whether the examination of bones for scientific or archeological purposes constitutes prohibited benefit. The issue was discussed extensively in the context of autopsies. See Chatam Sofer Y.D. 336 (forbidden) with Chazon Ish Y.D. 208(7). See also T.B. Bechorot 45a. It appears to this writer, however, that the issue here is largely moot. The issur ha'naeh of a met applies even to a non-Jewish corpse. See Y.D. 349:1 (but see Biur HaGra there). In such a case it become necessary to determine whether archaeological examination constitutes ha'naeh. Where the bones are of Jewish origin, however (or are assumed to be), there is an immediate mitzva of burial. Even if examination is not called "ha'naeh" it would be prohibited to hold on to the bones anyway.

33. A comprehensive discussion of tefusah and whether it applies when bones, rather than corpses, are being moved appears in Seridei Aish II, no. 125. See also the comments appended to the responsum by various gedolim.

34. Problems Concerning Issurei Ha'naeh:

As noted, undisturbed ground does not become forbidden. There is an argument regarding the excavated dirt that is returned to the grave for purposes of burial. The custom is to be stringent. The question then becomes would one be allowed to build directly on top of the gravesite or would that be deriving benefit from the prohibited dirt? According to R. Shaul Yisraeli, no more than three tefachim (approximately 9 inches) of dirt over the met constitute kever; the balance is merely for the purpose of levelling the ground and does not become prohibited. Chazon Ish apparently rules that all of the dirt placed in a mound for the purpose of covering the body has the status of a kever and is assur b'hanaeh. Even according to the Chazon Ish, however, additional increments of dirt and debris would not acquire kever status. Thus, at any given ancient gravesite, there may be a substratum of dirt directly coverning a met that is assur ba'hanaeh covered by layers of dirt that are not assur ba'hanaeh. R. Yaakov Loerbebaum (Netivot HaMishpat) argued that as long as the prohibited dirt remains submerged and one is walking or building on the permissible dirt, one is deriving no benefit from the kever. R. Akiva Eiger voiced some uncertainty on the grounds that without the prohibited dirt supporting the permitted layers, the person would fall. See Teshuvot R. Akiva Eiger, no. 45. Even R. Akiva Eiger concedes that once the permitted and forbidden layers of dirt are mixed together, one is permitted to derive benefit because of bitul b'rov (nullification of prohibition in a majority).

35. It is clear that the laws governing permissible conduct in a beit hakevarot are not based on the issur ha'naeh of a kever but represent a separate category of prohibition. Indeed, they are codified in two different chapters in Shulchan Aruch, compare Y.D. 364 and Y.D. 368 and are derived from two distinct Talmudic sources, see Sanhedrin 44b and 47b and Megillah 29a, which make no reference to each other.

36. The various distinctions between the issur ha'naeh of Y.D. 364 and the prohibition on kalut rosh of Y.D. 368 emerge from the following sources: Shiltai Gibborim, Sanhedrin 6th Chapter; Beit Hillel YD 364; Teshuvot Chatam Sofer Y.D. 335; Seridei Aish II, nos. 128 and 131. It should also be noted that according to Rashi, the issur ha'naeh from a kever is apparently a Torah prohibition, see Sanhedrin 44b, while the laws governing kalut rosh in a beit hakevarot may only be rabbinic. But see Chavot Binyamin I, no. 25 and Teshuvot Rashdam Y.D., no. 200. The matter needs further analysis.

37. Although it is clear that the issur of kalut rosh applies not only to the actual area of the graves but even to those parts of the cemetery that have not yet been used for burial, see Chatam Sofer Y.D. 335, these laws do not come into operation until at least one burial has in fact taken place because of the principle of hazmana lav milta he (mere designation without actual use create no restrictions). See Y.D. 349:1. Conversely, where the area was not designated as a beit hakevarot, the laws of kalut rosh do not apply even if a burial took place for some emergency reason though the issur ha'naeh may still be present. See Daat Kohen, no. 201.

38. See Shiltai Gibborim, Sanhedrin (6th Chapter); Chatam Sofer Y.D. 335; Daat Kohen, no. 201; Chazon Ish Y.D. 209(15); Chavot Binyamin I, no. 25; Seridei Aish II, nos. 128-131 all of which discuss whether the prohibitions on kalut rosh are derived from kedushat beit hakenesset; huktza l'mitzvato; kavod hamet; or some notion of vested "proprietary" interests in not having their resting place disturbed.

39. See Chatam Sofer Y.D. 341 (cannot excavate even if in doubt whether met is Jew or non-Jew). To the extent that pinui atzamot is an issur d'oraita based on nivul hamet, this conclusion would automatically follow since all doubts concerning a Torah prohibition must be resolved in the direction of stringency (safek d'oraita l'chumrah).

40. Rabbi Abramsky's comments are quoted in the introduction to volume 5 of Tzitz Eliezer.

41. Shvut Yaakov II, no. 103.

42. See Chatam Sofer VI, no. 37. Writing with first-hand experience of Nazi and Polish violations of Jewish cemeteries, Rabbi Yechiel Yaakov Weinberg reiterates this concern a number of times. See Seridei Aish II, nos. 125, 127, 131.

43. A Jew who behaves in a manner that is less moral than the accepted standard of non-Jews has committed a chillul HaShem. See T.B. Yoma 86a and Rambam, Hilchot Yesodei HaTorah 5:11. See also T.B. Yevamot 22a (a ger is prohibited from marrying those relatives that he couldn't marry before his conversion lest he say he has come from a greater holiness to a lesser holiness). Interestingly, some have noted that the chillul HaShem may take place not only in the eyes of the non-Jew but in the eyes of Jews who will be astonished at what the Torah seemingly permits. See, e.g., Daat Kohen, no. 204.

44. The speaker is a highly respected rabbi in the National Religious camp who does not want to be identified for "fear of incurring Chareidi wrath". His own reading of R. Yisraeli's teshuva is that graves may be moved for virtually any public need and that the Asra Kadisha's agitations are counterproductive.