[Avodah] Pinui kevarim

[Dov Kaiser]

Eli Turkel wrote:
>>> Nope. The term "tzorchei rabbim" doesn't appear there even once.
>>> You are making up halachos out of thin air and attributing them to the
>>> Shulchan Aruch.
 
> The Talmud allows for reinterment when the grave causes public damage
> (Sanhedrin 47a),
 
47b, actually.
 
> such as when it is found next to a public road (YD 364:5).
 
R. Zev Sero replied:
 
And yet you claimed that this se'if permitted moving a grave for "tzorchei rabim". Now you quote it saying something quite different. Surely you are not expecting anyone to accept that "mazik et harabim" and "tzorchei rabim" are in some way synonymous, or even remotely similar! There is no honest way to get from one to the other. 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; 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"? And why even bring up the concept of "nezek"?

 
 

<<Surely you are not expecting anyone to accept that "mazik et harabim" and "tzorchei rabim" are in some way synonymous, or even remotely similar!>>

Well, R. Akiva Eiger and the Nesivos thought so.  In a teshuva to the Nesivos (Psakim, 45), R. Akiva Eiger he wrote: 
                    
*with respect to disinterring graves, it is obvious (hadavar pashut), as his honour [the Nesivos] wrote, that there is no greater mazik rabim than this.  Even if it were already a public cemetery and with public consent (midaas rabbim), nevertheless it is permitted to disinter [the graves] for the needs of the public (l’tzorech horabim), as HaGaon R. Dovid Oppenheim zt'l wrote in his teshuva, which is printed in Responsa Chavos Yair*.  
 
Unfortunately, we do not know the details of the case at hand.  But as R. Rosen points out in the article I have already cited on Areivim (see http://www.zomet.org.il/?CategoryID=263&ArticleID=597), it is clear from this teshuva that both R. Akiva Eiger and the Nesivos held that *hezek rabbim* in YD 364:5 encompasses *tzorchei rabbim*, and therefore one may disinter graves, even of a public cemetery, in order to enlarge a road or some other public need (not just if the road was there already and the graves were discovered later).  
 
You are certainly entitled to read the Gemara and SA differently from R. Dovid Oppenheim, the Nesivos and R. Akiva Eiger, but others might choose to favour their reading over yours.  As we have discussed many times, when it comes to psak halacha (as opposed to lomdus), there is something slightly unorthodox (even unOrthodox) about jumping from the Gemara to the SA to psak halacha, while ignoring the voluminous halachic literature written since then, especially when it emanates from such greats as R. Akiva Eiger.  And even if you think it is a legitimate approach to disregard Acharonim in formulating halacha, you certainly can’t accuse those who follow the mainstream approach of making things up.  Language such as *How can you possibly imagine that this law allows the public to move the grave and build the road?* appears just a bit over the top when great Acharonim imagined just such a thing.  Also, as I have pointed out before in this forum, I think this sort of language on A/A creates more heat than light, to use a cliche, and lowers the tone of discussion.
 
Getting back to the substantive argument, I concede that the original teshuva of R. Dovid Oppenheim is arguably distinguishable from our case.  In that case, a shul had collapsed, and bones of nochri corpses were found in the ground during rebuilding works.  You could argue that the rebuilding of a shul is a bigger tzorech horabbim than the building of an emergency room in Ashkelon.  On the other hand, you could also argue the other way.  R. Rosen quotes a teshuva of R. Shaul Yisraeli, who refers to Bava Metzia 24b, which permits lopping a tree next to a city, even if the tree was there first.  Rashi there explains *sheyesh noi l’ihr k’sheyesh merchav panui lefaneha.*  R. Yisraeli uses this to show that even something which aimpinges on the aesthetic quality of a city is a hezek d’rabbim.  How much more so something which prevents the construction of an emergency room!
 
I feel obliged to restate on Avodah something which I already posted on Areivim.  The issue of pinui kevarim has become one of those *red rag to a bull* issues which, like heter mechira, has left the realm of civilized halachic discourse (at least for some – and I am not referring to R.ZS here) and become a catalyst for machlokes of a different kind.
 
Kol tuv
Dov Kaiser
Rehovot, Israel 		 	   		  
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