[Avodah] Pinui kevarim

[Chana Luntz]

RMB writes:
> The question of which comes first only impacts the permissability of
> getting hanaah from the place afterward. I'm not sure what the point
> of "mutar lifnoso umeqomo tahor" if the Mechaber continues "ve'asur
> behana'ah". If you can't use the land anyway, how is the path any
> better off without the grave occupying it?

No, the issur b'hanah that you refer to relates to a grave which is in the
form of a building - it is that that one cannot get hana'ah from, even after
the grave is removed, but the *land* cannot become assur.  In fact  that is
precisely the sugya that the gemora is dealing with in Sanhedrin 47b - the
fact that land cannot become prohibited - the braise that is the jumping off
point for our discussion  "there are three types of graves, kever hanimtza
(a found grave - Rashi, this is new and the owner of the field knows that he
never commanded that they bury there and they by robbery they buried there)
kever hayadua (a known grave - buried with the knowledge of the owner) and a
kever hamazik es harabbim (a grave that damages the public),  - a found
grave, it is permitted to empty it, and if it is emptied the place is
tahor,, a known grave, is is forbidden to empty it, and if one does empty
it, its place remains tameh, and a kever that damages the public, where it
is permitted to empty it, but  if it is emptied, its place remains tamey ahd
it is forbidden to benefit from it.  And the gemora wants to learn from this
braisa what you have derived, that the earth is assur, but responds - hachi
name bekever binyan (Rashi where they built above the ground).  And so
poskens all the meforshim.


RZS writes:
> 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.

That might be true if we are talking about a grave *on* a road.  But it is
certainly not true for a grave *next* to a road.  There are construction
methods, as described in chazal, which would perfectly adequately protect
the road and the cohanim from the grave by means of barriers etc.  The only
way, it seems to me, that these would not be a perfectly adequate solution
is if you assume that along with the acquisition of the road by the public,
is an acquisition of those portions of the road that are near to it, to
allow them to expand into them, if and when they choose.  If that is true,
and along with a public road goes an allowance for expansion, does it become
impossible to contemplate such protective construction, because such
construction would not solve the problem of the public expanding into the
area samuch to the road, in fact it would hinder them from doing so.

> 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.

It is not *surely*.  That is one option, the other option is that it is
about public expenditure.  You are making an assumption that the issue is
chazaka, others make the assumption that the issue is about the cost to the
public.  Neither is articulated in the Shulchan Aruch.  Both are plausible.
The cost to the public assumption is probably slightly more plausible,
because of the use of the word "hezek".  If it had really been about
chazaka, one might have expected language that refers to that chazaka, ie
the reason given why one could have move the grave is precisely as you have
articulated it - because hechiziku bah rabbim, not because of nezek rabbim.

 
> 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. 

Again, this works if we are talking about on the road, but not next to the
road, where the public do not currently walk.

Then later RZS wrote:
> In any case, as I wrote earlier, I think this division of road
> construction into stages is artificial, and chazal had no notion of it;
> it's imposing modern ideas onto ancient sources.  In Chazal's day a
> road was a road, it came about long ago in a single event, and it would be a
> road forever more.

This is attributing extraordinary ignorance to Chazal, given that the
absolute masters of this kind of construction method were the Romans. 

Somehow I doubt that Chazal knew only of roads that came about long ago.
For example, when in the discussion regarding dina d'malchuta dina in Baba
Kama Rava argues for the validity of dina d'malchuta dina on the basis that
- "they cut down palm trees and make bridges and we go over them", he does
not seem to be describing something that came about long ago.  Now I agree,
this is discussing bridges (roads were most likely made of stone and hence
less likely to have been made of materials demanded from the locals), but a
public road that just ended in the water waiting for a king to come along
and build a bridge is somewhat unlikely.  As is a bridge built by the king
in the middle of nowhere waiting until the public decided to beat a path to
it.  Rather, I think you will find that along with the bridge building came
road building linking up the bridge to other public roads.

Note also that Rava does not appear to say that the reason why one can walk
on these bridges is because cheziku bah rabbim.  This is actually, if you
think about it, and extraordinary omission.  Who cares whether the king is a
valid king or not, the public has now been koneh this bridge, whether or not
it was built by bandits, and that means we can't take away what they have,
whether they should have had it or not.  But he does not say that, rather he
has to resort to dina d'malchusa dina, otherwise, it would seem (and some of
the meforshim learn out explicitly), we could not walk on these bridges
because of the gezela involved in their construction. 

> It's certainly not *directly* addressed by them.  They don't mention
> widening at all.  The case they're discussing is a standard road, that
> goes where it goes, is in use by the public, and there's not a hint
> about any planned works on it.

As I have indicated, the reason I am assuming it is directly addressed, is
that so long it is only next to, and there is no issue about the public
expanding onto that area, there are unquestionably halachic solutions which
are far simpler to implement than moving the grave.

> Most roads in those days weren't very wide.  The width of an ox-cart,
> more or less.  We're talking cow paths, not super-highways.  A width of
> 16 amot was considered unusual, and was a condition for a reshut harabim
> de'oraita.  The difference between a grave near the road and on it
> wouldn't have been very much.

Enough to build a couple of walls and spaces in between and to put up a
marker.  For a cow path, that is certainly all you need.

By the way though, while the discussion in the meforshim on the Bavli is
centred on a road, the Yerushalmi that I quoted (Nazir perek 9 halacha 3)
which is the basis for the accepted distinction about which comes first, the
grave or the road is, as the meforshim note, discussing a city.  And the
measurement discussed there is seventy amah from the edge of the city
including its protrusions (assuming that the city only encompasses the grave
from two directions, if it encompasses the grave from three directions, then
there is no 70 amah limit for removal).

As you note, a road with a width of 16 amot was unusual, so what is this 70
amah all about?  Why does a city need to have 70 amah on all sides without
any evidence that the public goes there?  And would you then say that if a
grave was 71 amah away from the city, that means that the city could not be
expanded into some of that space as it would then bring the grave within 70
amah, allowing for removal of the grave?  And is a city something that the
public created by chazaka long ago without any planning or formal
construction?  

And none of the meforshim appear to have any problems with this Yerushalmi,
or suggest that it contradicts the Bavli, and indeed the Tur and the
Shulchan Aruch incorporate bits of it into their psak.

A consistent explanation therefore needs to understand this Yerushalmi as
well as what we can find from the Bavli and the meforshim on it.  And the
introduction of a city into the discussion means it is far harder to
understand the issue as being specifically about places that cheziku bah
rabbim, and far more likely that the discussion is about enabling the public
to use what they currently have to the fullest extent possible, including
expansion into areas which, in the context of whatever the construction is,
are reasonable to expect expansion (which clearly in the case of a road is
not going to be 70 amah, but in the case of a city may well be).

Regards
Chana