[Avodah] everyone is a liar

[Chana Luntz]

RZs says:

>If a road is built, and then a grave is found on or near it, so that it is
now damaging the
> public it may be moved;

I may be misunderstanding the metzius here, but that is precisely the
situation as I understand it.  A hospital was built, and in is use by the
public, and then, when they wanted to expand the hospital, they dug up just
near it and found graves.  Ie this is not a case where they public
identified a greenfields site and decided to built a hospital, only to find
graves before the hospital was in existence.  Rather it is a case where
there is an existing hospital, and it turns out there are graves that are
samuch to it.


> how does that apply to a grave that is sitting quietly by itself, minding
its own business, until the public proposes
> to put a road over it? How can you possibly imagine that this law allows
> the public to move the grave and build the road? 
> On the contrary, I can prove that it is not so: if such a thing were
> permitted, then why doesn't the gemara (and ultimately the SA) say so,
> and we would know kal vachomer that if the road was already built the
> grave may be moved? Why does it choose to speak of a grave that was
> found after the road was long-established, instead of straightforwardly
> stating "mefanin et hakever la'asot derech larabim"?

Not that I think this is the issue here, as we have an existing, built
hospital, but there are even more gradations than you are suggesting.  In
any form of public road planning and building there is the stage of proposal
of the location (the first stage).  Once that is determined, then there is
the stage of acquiring and building (a second stage), and then there is the
stage of already built (the third stage).  A halacha that allowed  Mefanin
et hakever l'aasot derech larabim would clearly permit even the first stage.
That is, even if there was a known cemetery in existence, cemetery
considerations would be irrelevant when considering where to place the road.
That is a different case to a situation where there are no known grave
considerations, the plans are drawn up, the land is acquired, construction
is started (but the road is yet to be used by the public) and then the
graves are found (second stage), and yes, that is again different from the
situation in which the road is already built and in use when the graves are
found (the third stage). 

Now it is interesting that the Shulchan Aruch does specifically note, based
on the Yerushalmi, that the permission to dig up a grave found near a road
is even if the road was built after the grave was buried.  Now why should
this be?  Fine if somebody went and buried a body when there was an already
existing road there, they should not be able to cause problems for the
public by their act.  But why the other way around?  Surely it was the
responsibility of the public in building the road to check carefully enough
to ensure there were no graves under or near the road when they built it.
And if they didn't do their due diligence carefully enough, then they should
suffer the consequences.  But that does not seem to be the din.  In which
case it is not so easy to see why there should be a difference between the
situation where the public had already expended the money on purchasing the
land and paying for the construction and the builders had gone in onto the
land and started digging, to the minute the first person puts their foot
onto the road to use it for its public purpose.

BTW It would also seem from Rashi as then quoted by others that the
obligation not to disinter a grave and rebury is d'rabbanan (given that he
contrasts this, which is permitted when there is nezek harabbim, with the
issur hana'ah on the grave building, if there is a grave building which is a
d'orisa and which is not uprooted even if there is nezek rabim).  If that is
indeed the  case then one would assume questions of safek d'rabbanan l'kula
would come into play here as well.

And one does need to ask that in the case of a grave that is just near,
rather than under, a road surely one could almost always provide other
solutions.   One could shift the road or add an additional portion of it to
the other side away from the grave; or one could build walls and cavities
preventing the tumah escaping on to the road etc etc.  Yes these might be a
bit more expensive but why should all these options not be exhausted first
before uprooting the grave?  But the Shulchan Aruch does not say to do that.

And why even bring up the
> concept of "nezek"?

Yes, what is the concept of nezek being discussed here?  Rashi brings (and
so it would appear do pretty much everybody else) that the nezek is due to
the public potentially becoming tamei b'ohel due to this grave.  Now what is
going on here?  This grave was, as you say, quietly minding its own business
until some public planner went and built a road nearby.  What nezek is it
doing?  Surely the solution is to put up signposts for kohanim and anybody
else on beis hamikdash business to avoid the route and take another, or to
take necessary precautions (walk on the other side of the road perhaps if
that will do).  The nezek appears to be that it would force cohanim etc to
go some other way or take inconvenient precautions (or cost the community
money to build walls or the like and make sure there was no overshadowing by
trees).  Is that such a big deal?  And, certainly in the absence of the beis
hamikdash, with the rest of the community not worried about tumah and
tehara, is this really nezek harabbim, or nezek of a small section of the
rabbim?  And even if it is, it is surely nezek sheino nikar at absolute most
(becoming tamei).  And not really that, because so long as there are signs
the cohanim know to go another route, so the true nezek is the extra steps
that they are being made to take.  Is that really nezek?  If I make you as a
cohen go a long way round my property to get to my house to avoid becoming
tameh, is that nezek?  What damages could you claim?

So while I agree with you that nezek harabbim would seem to be different
from tzorchei tzibbur,  given the nezek that is being discussed here, most
cases of tzorchei tzibbur of would seem to be a lot stronger.  And indeed we
not infrequently push aside d'rabbanans for tzorchei tzibbur, so I can
understand why some people might well it out learn out as a kal v'chomer.
If we push aside the d'rabbanan of moving graves for the form of nezek
harabbim caused to the cohanim in the graves by the road case, then surely
we would push aside the d'rabbanan of moving graves for a genuine tzorchei
tzibbur. 

> --
> Zev Sero
> zev at sero.name

Regards

Chana