Tuesday, November 16, 2010

Cremation and Halacha

(originally published in Moment Magazine, June 1995)

The Halachic view of cremation became a matter of controversy in the late nineteenth century. Cremation had become progressively more popular, fueled by the British physician Sir Henry Thompson, Queen Victoria's personal surgeon, who in 1878, argued in his book, Cremation:The Determination of the Body After Death, that cremation was a scientifically superior way of disposing of dead bodies . Proponents of cremation claimed that the germs of the dead body would contanimate the ground. The popularity of cremation was also a reaction to the raucous, indecorous wakes and funerals in the late 19th century. The ensuing popularity of cremation became a matter of heated polemics in the Jewish community and Orthodox Rabbis were called upon to defend the Jewish custom of underground burial. Jewish custom, from early times, has disallowed cremation. Tacitus (First century C.E.) writes about the Jews that "rather than cremate their dead, they prefer to bury them" (The Histories 5:5). To defend these long standing traditions, many responsa* were written. Presented here are the major arguments used by various rabbinic authorities to disallow cremation.

1. The Commandment of Burial

The first issue that must be discussed is the commandment to bury the dead.The Torah (Deuteronomy 21:22-3) says:

"When someone is convicted of a capital offense and is put to death, and you hang him on a tree. His body must not remain there overnight; it must be buried on the same night. For it is the curse of God for one to hang, and you should not pollute the land which God gave you."**

These verses require some explanation. At first glance it would appear that the verses contain a prohibition against allowing the body of a hanged convict to remain overnight, as well as a positive commandment to bury him. The Torah also indicates the reason for this commandment: "Ki killat Elokim taluy", that it is a curse to God for one to hang. Several commentaries explain that the reason why it is a curse to God is because the person hanged is one who cursed God; If he continues to hang for an extended period of time, it will remind others that he cursed God. Reminding observers of the deceased convict's curse is tantamount to cursing God on our own.
Rashbam gives a different explanation. He says that the word "Elokim" in this context is refering not to God, but to a Beit Din . The reason why a convict should not hang is because "it is the curse of the Beit Din", for the relatives of the deceased convict will curse the Beit Din that delivered the death sentence. According to these two Rishonim, these commandments are exclusive to those who have recieved the death penalty. The Mishnah also interprets the verse in a similar way. It says: "this means to say, why did this man hang, because he cursed God, and it will desecrate God's name." Rashi explains that people are reminded by the hanging body of the act of cursing God.

However, the Mishnah extends the prohibition and commandment to all deceased bodies, stating "that it is not only in this case (of the hanged convict), but anyone who delays burial has violated a commandment". The reason for the Mishnah's extending this prohibition to all bodies is found in the Talmud (Sanhedrin 46b) that says that a lack of dignity for the human body, which is made in the image of God, is tantamount to a lack of dignity for God.This ruling is subsequently codified by Maimonides (Yad, Sanhedrin 15:8) and the Shulchan Aruch (Yoreh Deah 362:1).

The commandment to bury the deceased is understood to be specifically underground. The Talmud Yerushalmi (Kilayim 9:2) quotes Rabbi Yehuda Hanasi as saying that "my coffin should be open to the ground". Rav Natronai Gaon  (quoted in Ramban, Torat HaAdam (Chavel edition; Jerusalem:1964) page 117) discusses the custom of placing dirt into the coffin with the deceased. He comments that when the Bible says that "you are earth, and you shall return to the earth"(Genesis 3:19), it indicates that underground burial is the "remedy" for one who has died.

This commandment is perhaps the major Halachic impediment to cremation. If one is cremated, his body is no longer available for burial, thereby obviating the Biblical commandment of burial. Burying the ashes after burial is insufficient, as it is clear that the entire point of in ground burial is the return of the body to the ground.

2. Mistreatment of the body: Jewish tradition warrants that the body not be mistreated after death. The Talmud (Avodah Zarah 29b) concludes that it is forbidden to receive any enjoyment from a dead body and any of its shrouds. The Mishnah (Yadayim 6:4) says that the rationale for the ritual impurity when one comes in contact with a dead body is because we are concerned that people may mistreat the body. For this and other reasons the Talmud (Hullin 11b, Baba Batra 154a) prohibits the mutilation of the dead. Because of this prohibition, Rabbinic authorities have ruled that it is prohibited to perform an autopsy unless it will save human lives. Cremation would clearly violate the prohibition against mutilating dead bodies.

3. The Importance of Tradition: Rabbi Abraham Isaac Kook , emphasizes the fact that even if there was no Halachic reason for underground burial, it is essential to preserve Jewish custom. While this is true about all Jewish customs (TB Beitzah 4b, TJ Baba Metzia 7:1) It is particularly important in the case of burial. Funerary rites are one of the only universal rituals; each and every society has a specific way of disposing of the body. Scholars of religion have noted that funerary rites signify a society's view of death. The clear historical evidence that it was an ancient Jewish custom to practice underground burial and not to cremate is significant, for even if there was no direct Halachic warrant for burial, it would be an important part of our folk religion and culture.

It is also the last religious act in any person's life. For this reason, Rabbi Yechiel Yaakov Weinberg argues that cremation is a more serious transgression than other violations of Halacha.

4. Theological reasons: There are several theological ideas represented in underground burial. Burial is considered the most respectful way to treat the body of the deceased. The Talmud compares the dead body to a Torah scroll that is no longer usable. This comparison is explained by R. Aharon of Lunel (early 14th century) who writes that "a man must treat with respect that which he has had enjoyment from....and so it is proper that we do not treat the body abominably once his soul has finished dwelling in it....and following this path, we treat with affection the body through burial and other forms of honor that are done for it, which is similar to the treatment of holy items that are hidden away (when worn out)." The analogy indicates that we treat the body with the same respect as we would treat a worn out Torah scroll. Out of respect, we bury an unusable Torah scroll, and it is forbidden to burn it. We must treat the body with similar respect.

Another idea is advanced by Rabbi Yechiel Michal Tucatzinsky. He says that burial represents the body's return to mother earth. The earth is the source of all life, the provider of food for all living beings. By returning to source of food and life, and becoming one with it, man's body can become part of the earth's life giving magic. This idea that the body's return to the earth is a return to the womb of mother earth is also found in the verse "naked I came out of the maternal
womb, and naked I shall return there."(Job 1:21). Burial is part of the cycle of life for "you are earth, and you shall return to the earth" (Genesis 3:19) Tucatzinsky notes that ashes are not easily biodegradable, and do not truly become part of the earth.

It seems clear that the overwhelming majority of halachic sources weigh against cremation. Burial is an ancient Jewish tradition, and is deeply rooted in biblical and rabbinic texts.


*There are many responsa on the topic of cremation. The most prominent collection is a group of letters solicited by Meyer Lerner, the Rabbi of Altona, Germany, and published as Chayei Olam (Berlin 1904). Other important responsa on this issue include Beit Yitzchak, Yoreh Deah no. 155, Even Yekarah Volume II no. 64, Yabiah Omer, Volume III Yoreh Deah no. 22, Melamed L'hoil Volume Yoreh Deah no. 113-114, Achiezer Volume III no. 72. See also Michael Higger Halachot V'Aggadot, (New York 1935) who, although he is opposed to cremation, rebuts some of the rhetorical excesses of Rabbis who were opposed to cremation. However, some of Higger's counter arguments are tendentious as well.

 ** The commentaries of Ibn Ezra and Rashbam interpret this verse according to its simple meaning, and limit its scope to one who is hanged for a capitol crime. For more on the interplay of the simple meaning of the verse and the Mishnah's interpretation, see the entire text of Mishnah, Sanhedrin 6:4, and Maimonides, Sefer Hamitzvot, negative commandment 66 and positive commandment 291, and Sha'agat Aryeh, New Responsa, no.6. Whether the commandment of burial is of Biblical or Rabbinic origin, see Havot Yair no.139, and S'dei Hemed s.v. "Burial" no. 39. Note that Josephus, (Antiquities of the Jews, 4:265) follows the Mishnah's interpretation that these commandments apply to all dead bodies.