[Avodah] everyone is a liar

[Zev Sero]

Chana Luntz wrote:
> 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.

But that's just it.  How do you make the leap from the existing facility
to a plan to expand it?   What we have from the sources is permission to
move a grave that is damaging an existing road.  You would have it that
the same would apply if it will be in the way of a plan to expand that
road; but how do you know this?  Where in the source is this implied?
Perhaps a plan to widen a road is just like a plan to build a road in the
first place; where do you see them distinguished?


> 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.

But not samuch enough to damage it.  Let's return to the case of the
road.  Let's suppose that a grave within four amot of the road damages the
road and must be moved.  But a grave five amot away does not, and should
be left alone.  Here we have a grave five amot away, and then the public
decides to widen the road, thus bringing the grave within four amot of
the proposed new edge.  Where do you see permission to do so?  Perhaps
the law is that the widening must happen only on the other side of the
road, or must be cancelled.

I would note that the case cited by the Chavot Yair was *not* (as has
been claimed) one of expanding or refurbishing a shul, but of rebuilding
an old shul that had collapsed.  There's no hint that the new shul was
going to be any bigger than the old one.  These graves had always been
under the old shul, but nobody knew about them.  Now they found out, and
had to know what to do; must the shul move, and if so where?  Even today
moving an established shul is not such a simple matter; one can only
imagine what it was like when "yad akum takifa" and shuls existed only
at the mercy of the goyim, who might not consent to grant another site
just because the Jews decided that the old site was no longer suitable.



>> 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.

I don't know how roads were made in Chazal's day, but this division into
stages seems artificial.  In fact I think the usual way roads came about
in those days was not through planning at all, but by public usage.
People simply started going a particular way, over hefker land or over
private land whose owner failed to protest and thus forfeited his rights,
and thus it could easily happen that nobody realised there was a grave
nearby until after the road was long-established and it was too late to
move it.  And in that process there is indeed discussion about when it's
not yet a road and there is still time to complain about it, and when it
has become an established road ("hecheziku bah rabim") and it's too late.
Presumably the same rules would apply when a grave is found.

But in the case of planned roads (e.g. derech hamelech, which is built by
the king seizing land and breaking fences and declaring the resulting path
to be a road), one must indeed wonder at what point the road is considered
a fait accompli which must be accommodated, and at what point it's not yet
a road but merely a plan for a road, however advanced, which can and must
be changed if a problem is found.



> 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.

Perhaps it was, but the fact is they didn't do so, and now the road is
a fact.



> 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.

The status quo is that the public are walking down it, and it now
transpires that there's a source of tum'ah along it.  Now there are only
two options: either the grave must go, or the public most go.  And the
psak is that the grave moves and the public stays.  But what authority
do we have to extend that to a situation where the public has not yet
arrived?


> 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.

Surely the difference is one of chazakah.  What is the status quo?  Is it
"hecheziku bah rabbim" or not?  All these various stages of the
construction are before the rabbim got there, and I'm not sure how we can
show that the mere expenditure of money and effort is the issue.


> 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.

You're assuming that the issue is the expense and inconvenience of moving
the road.  As I see it the main issue is not how hard it would be, but
that the public has no obligation to give up what it has, even if it
should not have had it in the first place.   For one thing, the "rabbim"
is not one entity, it's not the state or the community but the masses,
and they're walking where they're walking, and no one individual can
speak for all of them, or decide on their behalf to move the road.




> 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. 

Maybe so, but if it's a kal vachomer it's not muchrach.  And it's a far
cry from the claims that have been made that this is explicit in the
gemara and Shulchan Aruch, or in the poskim.


-- 
Zev Sero                      The trouble with socialism is that you
zev at sero.name                 eventually run out of other people’s money
                                                     - Margaret Thatcher