– Author: Rav Sam Millunchick

Shlomo HaMelech[1] tells us, “it is better to go to a house of mourning than to go to a house of feasting, for that is the end of every man, and the living shall take it to his heart… The heart of the wise is in a house of mourning, whereas the heart of the fools is in a house of joy.” This permanent shadow of death lends meaning to our every breath and action. Dealing with the death of a loved one is a difficult but inevitable experience that can throw our own mortality into sharp relief. In this essay, we will explore the Torah’s approach to burial and alternative methods of parting from loved ones.

The Mitzvah of Burial – Foundations

In Sefer Devarim,[2] the Torah discusses what happens when the Sanhedrin puts someone to death for violating Torah law:

If a man commits a sin for which he is sentenced to death, and he is put to death, you shall [then] hang him on a tree. [But] you shall not leave his body on the pole overnight. Rather, you shall bury him on that [same] day, for a hanging [human corpse] is a blasphemy of God, and you shall not defile your land, which the Lord, your God, is giving you as an inheritance.

According to these pesukim, there is an obligation for burial where one was put to death by the Sanhedrin. However, there is no discussion of a case where one died normally. The Gemara in Masechet Sanhedrin[3] therefore wonders what the source is for the mitzvah to bury one who dies of regular causes. The Gemara concludes that the verses above do indeed serve as a general source for burial, but the Gemara refers to it as a רמז [remez] – a hint. The discussion ends, though, without a clear indication that this is indeed a mitzvah de’oraita – a biblical mitzvah, as the word remez may indicate that the obligation is only derabanan – by rabbinic. Indeed, we will see that there are those who conclude that this is merely a mitzvah derabanan.

In the continuation of the above passage in the Gemara, it discusses the purpose of burial: Is it because of the potential bizayon, or embarrassment of the family members,[4] that would occur were the body left unburied, or is it performed in order to serve as an atonement for the deceased? The practical difference between these two different conceptions is evident in a case where the deceased states in his will that he doesn’t want to be buried. If the reason for burial is to provide atonement for the deceased, then he could potentially decide to forgo the atonement and remain unburied. But if the reason is due to embarrassment of family members, then he does not have the right to cause shame to others simply due to his wish to remain unburied. The Gemara leaves this inquiry unresolved.

The Mitzvah of Burial — De’oraita or Derabanan?

Based on the ambiguity in the Gemara, the Rishonim disagree as to whether the chiyuv to bury the dead is de’oraita or derabanan. The Ramban in Torat Ha’Adam writes that we bury the body because it is a “safek issura”, a potential Torah prohibition. However, in his commentary to the Rambam’s Sefer Hamitzvot,[5] in response to the Rambam who writes that the word remez refers to a mitzvah that is not counted as de’oraita, he proves that the word remez may denote a mitzvah that is de’oraita. One may infer from this comment that the Ramban did indeed count the mitzvah of burial as a mitzvah de’oraita.[6]

In light of the above, it would be reasonable to assume that the Rambam would say that kevura does not have the status of a mitzvah de’oraita. However, in both his Sefer Hamitzvot[7] and in the Mishneh Torah,[8] the Rambam writes that burial is a mitzvah from the Torah. If so, what is his source? The Lecḥem Mishneh writes that the Rambam’s source is the first suggestion in the Gemara given by Rabbi Yochanan, which may disagree with the second, concluding, approach that kevura is based only on a remez:

Rabbi Yocḥanan says in the name of Rabbi Shimon bar Yocḥai: From where is it derived that one who leaves his deceased relative overnight without burying him transgresses a prohibition? The verse states: “But you shall bury him [קבור תקברנו]” (Devarim 21:23) [doubling the verb for emphasis]. From here it is derived that one who leaves his deceased relative overnight without burying him transgresses a prohibition.

In the Gesher HaChayim, Rav Yechiel Michel Tucazinsky discusses a possible way to resolve the two conflicting approaches in the Gemara as to the source of the mitzvah of kevura. He writes that the first sugya, that which the Lechem Mishneh identified as the Rambam’s source that the mitzvah of kevura is de’oraita, is indeed the source for burial in general. The second sugya in the Gemara, where it concludes that there is only a remez in the Torah for it, is the source for the preference to be buried directly in the ground, and not in any type of casket. However, because this is only formulated using the term remez, it is not an obligation, but only a recommendation. Indeed, this is how the Shulchan Aruch[9] paskens concerning using a casket:

One who places the dead person in a casket and doesn’t bury him in the ground transgresses the prohibition of leaving a dead person overnight. And if he put him in a casket and buried him in the ground, he does not transgress at all. However, it is better for him to bury the dead person in the ground without a casket, even outside of Israel.

Another potential approach to the general question of the status and source for the mitzvah of kevura can be suggested by first noting that the fact that burial is considered de’oraita can be inferred clearly from one of the halachot concerning the prohibition against kohanim becoming tamei [impure] from a corpse. The Gemara in Masechet Nazir[10] states regarding a Kohen Gadol and a nazir that they are not allowed to become tamei (i.e. be involved in the funeral, burial process, etc.) for their immediate relatives. However, they are allowed to become tamei for a meit mitzvah – a dead person with no one to arrange the burial. In addition, the Torah itself states at the beginning of Parshat Emor that a regular Kohen may become impure in order to bury his seven close relatives. It seems from here that the mitzvah of burial must be a de’oraita one, for otherwise, on what basis would it push off the biblical prohibition for a kohen to become tamei? If so, how could there be any uncertainty in the Gemara in Sanhedrin as to whether kevura is biblical in nature?

The Gesher HaChayim[11] explains that there are actually three categories of obligations of burial based upon the sources we’ve seen so far. First, he writes that there is a chiyuv of burial upon the immediate family of the deceased, which is derived from the fact that the Torah states that a kohen may become tamei for his immediate relatives. However, if the dead person is missing part of his body – at which point the kohen is no longer allowed to become impure to bury the body[12] — it would seem as if there is no longer any unique mitzvah for the relatives to bury the person. The second type of chiyuv applies to all of Klal Yisrael, as well as the beit din, when there are no relatives. This obligation stems from the pasuk mentioned above of “קבור תקברנו”. A relative is also included in this mitzvah and in fact has a higher level chiyuv under this category than others. This category is not connected to tumat kohanim and therefore applies even to a corpse that is not intact. The Gesher HaChayim includes the obligation of a Kohen Gadol or nazir to bury a meit mitzvah in this category, because he understands that the pasuk of קבור תקברנו applies to any dead body where there is no special chiyuv upon the relatives. The third category is one where there are relatives or other people in place to take care of the body, and all others are enjoined by a mitzvah miderabanan to join in the preparation and burial of the body. This mitzvah stems from the chiyuv of gemilut chasadim.

To summarize, it seems like the opinion of most authorities is that it is a mitzvah de’oraita to bury the body after death.[13]

Cremation in Halacha

Now that we have a basic understanding of the sources of the mitzvah of kevura, we can now proceed to discuss the issue of cremation, where the body is burned and turned into ashes. What is the halacha if a person insists that he does not want to be buried in the traditional manner or that burial simply does not “speak to him”? Is there any basis for allowing alternative forms of disposing of the body of the deceased, such as cremation?[14] We saw above that the Gemara left the question of whether one may choose to forgo burial unresolved. Nevertheless, since the accepted halacha is that the mitzvah of burial is de’oraita, one would expect that it should be prohibited to forgo burial. And indeed, according to contemporary poskim, the Jewish position on cremation is unequivocal — cremation is absolutely forbidden. However, if we examine the sources that address cremation specifically, we will see that the subject is actually broader than we might have expected.

In Amos[15] the pasuk states:

For three sins of Moav, even for four, I will not relent. Because he burned to ashes the bones of Edom’s king.

Rashi[16] explains that the king of Edom once fell prisoner to Moav, whereupon they burned his bones and used them for plaster on the walls of the palace. The fact that the prophet criticizes Moav for this action indicates clearly that God is unhappy with cremation, even when performed by non-Jews.

Another relevant source can be found in the Talmud Yerushalmi,[17] where there is a discussion about a person who says that he would like his body cremated or worshipped, and he will give part of his estate to a particular person — does that person inherit the estate even though he wasn’t cremated or are the two conditions inextricably linked? What is clear from the Yerushalmi is that cremation is forbidden — indeed, this fact is taken for granted.[18]

The Shulchan Aruch[19] also paskens clearly that it is forbidden:

Even if one who is destitute says, “don’t bury me,” we don’t listen to him.[20]

There is one source, however, that seems to view cremation in a less negative light. In Shmuel I, the pasuk[21] states:

When the people of Yavesh Gilead heard what the Philistines had done to Shaul, all their valiant men marched through the night to Bet She’an. They took down the bodies of Shaul and his sons from the wall of Bet She’an and went to Yavesh, where they burned them.

Rashi,[22] based on the Targum Yonatan, interprets this to mean that they burned their possessions, as was the custom for non-Jewish kings who died. The Radak,[23] however, explains that they burned their flesh, as it was rotting, and buried their bones. Is it possible that the Radak would hold that these pesukim indicate that (partial) cremation is allowed?

The answer is that the Radak would probably not allow actual cremation. The Rashba in a responsa[24] writes that it is permissible to put lime on a corpse to aid in the decomposition of the flesh in order to move the bones to a new place of internment. The Shulchan Aruch paskens this way as well.[25] Based on this, the Melamed L’ho’il explains the above pesukim in a similar manner, such as that cremation is not necessarily allowed:

And only in a place where there is a concern that the dead body will rot before it is buried is it permissible to pour lime to aid the decomposition of the flesh, and the most important thing is that the bones are buried. And this is what happened with Shaul and his sons, for their flesh was rotting, and their bones were buried.

Accordingly, what seemed on the surface to be a clear source from Tanach allowing cremation is, in fact, in line with the mainstream halachic opinion that in certain situations, causing a faster decomposition of the flesh is permitted, but the bones must still be buried (which the Radak himself was also careful to state).

Cremation — Pesak Halacha

In addition to the basis for forbidding cremation discussed above (as related to the mitzvah of kevura — #2 below), the halachic authorities also offer a number of other reasons as to why cremation is assur:

  1. It is against the accepted custom of Israel

Rav Kook writes[26] that even if it were permissible from every other angle, it would still be forbidden because it is not the custom of the Jewish people, and one of our oldest customs is that of burial.[27]

  1. By not burying the dead, one is mevatel (nullifes) the mitzvah of kevura

This point is made by the Beit Yitzchak,[28] Melamed L’ho’il,[29] the Achiezer,[30] and Rav Kook.[31] These poskim explain that burial is a positive biblical commandment, and therefore must be performed as prescribed, and no other means of disposal of the body is permitted.

  1. Nivul HaMeit – Disgracing the deceased

The Melamed L’ho’il writes based on the verse in Amos quoted above that the burning of any corpse, even one of a non-Jew, is disgraceful to the body. Rav Kook also mentions this idea and links it to the fate of Titus the wicked, about which the Gemara relates that he asked to be cremated and have his ashes spread to the four corners of the Earth to prevent retribution from the God of the Jews.[32]

  1. “Those items that are to be buried must not be burnt”

The Mishna at the end of Masechet Temura[33] states that anything that must be buried may not be burned, and vice-versa. Based on this principle, the Beit Yitzchak writes that even were one to plan to cremate the body and then bury the ashes, he would fall afoul of this principle.

  1. Chukot Hagoyim – The ways of the non-Jews

Based on a sugya in Sanhedrin about different types of death penalties, Rav Kook writes that to follow the ways of secular society against the wishes of the Torah is considered reprehensible and falls into the category of chukot hagoyim — the practices of non-Jews.[34]

Cremation — Accompanying Issues

In addition to the act of cremation itself being assur, there are issues other than the cremation itself that arise when one is cremated.

The first issue is whether there is any obligation to bury the ashes. The Beit Yitzchak proves from a comment of the Ramban[35] that the issue of burial is unrelated to tuma or tahara, and therefore concludes that even if one were to say that the ashes are not impure, one would still need to bury them. The Melamed L’ho’il also writes that although the ashes are not impure, there is still a chiyuv kevura on the family, for they were already obligated to bury the body before it was burned. Rav Moshe Feinstein[36] rules this way as well.

The second issue relates to the fact that the person being cremated may often be considered a rasha – wicked person. The Shulchan Aruch[37] writes explicitly:

We do not bury a wicked person with a righteous person, nor a very wicked person with a slightly wicked person.

The Shulchan Aruch also writes elsewhere:[38]

All who separate themselves from the community, those people who have taken off the yolk of mitzvot, who no longer consider themselves a part of Klal Yisrael in their actions, who no longer honor their appointed times, or sit in the study houses or synagogues, those who consider themselves free men like the rest of the nations, and also those who have converted to other faiths or who have turned in Jews to the gentile authorities: For all those people one does not practice any custom of mourning. Rather, their family wear white and celebrate.

The difficulty with this issue is that if it is ruled that the ashes do require burial, it may be forbidden to bury them in a Jewish cemetery according to these rulings of the Shulchan Aruch. A number of Acharonim have addressed this question of the potential burial of one who was cremated in a Jewish cemetery and offered a variety of rulings on the subject.

The Melamed L’ho’il writes (in the same teshuva as the one referenced a few paragraphs above) that while there is technically no obligation of burial with regard to ashes, the family members of the deceased nevertheless have an obligation to bury their loved one, as they already had an obligation of burial before the person was cremated. He then accedes, in contrast to other poskim that we will see shortly, that the community has no right to bar a Jew from burying the remains of a loved one in a Jewish cemetery, cremated or not. Additionally, he writes not to make any sort of decrees that the ashes of those who were cremated may not be buried in a Jewish cemetery, for this may very well backfire and lead to less overall observance. He does agree, however, with the ruling of the Shulchan Aruch that one should bury the cremated person in a separate section of the cemetery. He also recommends that the community initially make a decree forbidding people who were cremated from being buried in the Jewish cemetery, in the hope that this will prevent people from being cremated. However, once someone is cremated and his relatives demand that his ashes be buried in the Jewish cemetery (or the deceased demanded it while still alive), he recommends that the community bury them inside the cemetery in a separate plot.

Rav Yitzhak Elchanan[39] also allows a cremated person to be buried in a separate section of the Jewish cemetery. Rav Moshe Feinstein[40] addresses a case where the relatives of the deceased decided to cremate the body and rules that it is permitted to bury the ashes in any part of a Jewish cemetery, as in Rav Moshe’s opinion, the ashes have no halachic significance vis à vis the person to whom they belong.

Other poskim take a more stringent approach to the issue. Rav Chaim Ozer Grodzinsky writes in the Responsa Achi’ezer that a decree should be enacted in all communities that one who is cremated is not allowed to be buried in the Jewish cemetery in order to prevent people from cremating themselves. This is also the position of Rav Kook, who writes very sternly against allowing people who were cremated voluntarily to be buried in a Jewish cemetery. The Seridei Eish[41] is similarly caustic in his reproach of those who choose to cremate themselves and is uncompromising in his ruling that such a person may not be buried in a Jewish cemetery.

Do relatives of an individual who was cremated observe the customs of mourning? We saw above that the Shulchan Aruch is of the opinion that one should not fulfill any of the customs of mourning for a person who is considered wicked. Based on this, the Minchat Elazar,[42] who is also quoted by the Seridei Esh, writes that there is no mourning period for one who requests that he be cremated. On the other hand, the Gesher HaChayim[43] writes that one does observe the laws of mourning, but one does so from the time of cremation rather than from the time of the burial of the ashes (as is normally practiced concerning standard burials). The Melamed L’ho’il also writes that one should observe the laws of mourning, but he writes that the period begins from the burial of the ashes.

Burial at Sea

Even if cremation is not allowed, might it be permitted to perform a burial at sea by disposing of the body in the water? As we’ve seen thus far, Jewish tradition puts a premium on being buried in the ground, and it would seem logical that this too should not be allowed. Additionally, in the Talmud Yerushalmi, it is related that Rabbi Yehuda HaNasi’s last wishes were to be buried in the ground, and the Shulchan Aruch[44] rules that one who does not bury a dead body in the ground violates the prohibition of not leaving a dead body above the ground. The Aruch HaShulchan[45] writes even more explicitly that the Torah requires one to be buried specifically in the ground and cites the verse “and to dust you shall return” in support. Although we do see concerning Yosef that when his body was put in the Nile it was called “burial,”[46] the Devar Yehoshua[47] writes that this is not a sufficient burial for a human body, and indeed, Moshe took the bones of Yosef with the Jews when they left Egypt and buried them in Israel. It seems, therefore, that burial at sea is not an option for a Jew.

Concluding Thoughts

Burial in the earth is part of the foundation of Jewish practice. It is connected to our faith in the resurrection of the dead and to basic concern for the human body and form. One who decides to cremate oneself or chooses another alternative form of burial is breaking with thousands of years of tradition of his nation, and is separating himself from the source of his longevity. May we all merit to see the rebuilding of Jerusalem in our lifetimes, to witness the resurrection of the dead, and to be among those who are privy to the revelation of the kingdom of Heaven on Earth.

 

[1]  Kohelet 7:2,4

[2] 21:22-23

[3] 46b

[4] This is the meaning of bizayon according to the commentary of Rashi (s.v.lo kol k’minei) and Tosafot (s.v.kevura mishu mbizyona). According to the Ramban (Sefer Torat Ha’Adam, Sha’ar HaSof, Inyan HaKevura), this is referring to the degradation of humanity as a whole that someone is not buried.

[5] Shoresh 3

[6] See Gesher HaChayim 2:12

[7] Mitzvat Aseh 231

[8] Hilchot Avel 12:1

[9] Yoreh De’ah 263:1

[10] 47a-48b

[11] 2:12

[12] Shulchan Aruch, Yoreh De’ah 373:9

[13] See Gesher HaChayim 2:12

[14] It should be noted that cremation is quickly becoming one of the most popular methods of choice of disposal of the body after death around the world for a variety of reasons. For additional material concerning the Jewish view on cremation, see Rav Doron Kornbluth, Cremation or Burial? A Jewish View.

[15]  2:1

[16]  s.v. al sarfu atzamot

[17] Ketubot 11:1; see also Korban Ha’Eda there.

[18] See also the words of Rav Kook in Da’at Kohen, Yoreh De’ah 197 that this is also clear from the commentary of the Penei Moshe even though his interpretation is the opposite of that of the Korban Ha’eda, as “how could one think that a Jew could say this to abolish burial and do what the gentiles and heretics do to burn the body?”  וראה דברי הרב קוק בדעת כהן ענייני יו״ד סימן קצז, ששם הוא כותב שמוכח ג״כ מפירוש הפני משה ככה, למרות שהוא פירש הפוך מהקרבן העדה, כי ״איך יעלה על הדעת שאיש יהודי יאמר כן לבטל ממנו קבורה ולעשות המעשה הגויים והמינים לשרף אותו״

[19] Yoreh De’ah 349:3

[20] According to the Be’er HaGola, this ruling is based on the Ramban and others we saw above who hold that since kevura is ruled to be de’oraita, we are therefore stringent concerning the Gemara’s question of one who wishes to forgo burial.

[21] Shmuel I 31:11-12

[22] s.v. vayisrefu otam sham

[23] ibid.

[24] Responsa of the Rashba 1:816

[25] Yoreh De’ah 363:2

[26] Da’at Kohen, siman 197

[27] See the continuation of the Gemara in Sanhedrin that we quoted earlier, which seems to make this point explicitly.

[28] Y.D. 2:551

[29] Y.D. 2:114

[30] 3:72

[31] Da’at Kohen, Yoreh De’ah 197

[32] Gittin 56b

[33] 34a

[34] The sources and halachic applications related to chukot hagoyim were discussed at length in the shiur on the subject in Volume 1 of the English Tzurba M’rabanan series.  

[35] Parshat Ki Tetzei, s.v. lo tetamei et admatcha

[36] Y.D. 4:65

[37] Y.D. 362:5

[38]  Y.D. 345:5

[39] Reponsa of Rabbi Yitzchak Elchanan, siman 74

[40] Igrot Moshe, Y.D. 4:56

[41] Seridei Eish 2:98

[42] 2:34

[43] 1:16:8

[44] Y.D. 363:1

[45] Y.D. 362:1

[46] See Tosefta, Sota ch.4

[47] 2:38:20

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