[Avodah] pinui kevarim

[Dov Kaiser]

The dispute between R.ZS and myself [see below] boils down to how to read the teshuva of R. Akiva Eiger (siman 45). To quote my translation of this teshuva again: 
*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*
 
R.ZS, if I understand him correctly, is arguing that since we don’t know the nature of the case RAE and the Nesivos were discussing, we can’t conclude from it that it is permitted to disinter graves l’tzorech horabbim, as opposed to graves that are mazik the rabbim, which is stated explicity in the SA.  R.ZS thinks I am misattributing opinions to authorities by reading the teshuva otherwise.  He thinks that R. Yisrael Rosen and R. Shaul Yisraeli zt"l have similarly misinterpreted the words of RAE to create a heter which doesn’t exist.  Since then, I have seen that R. Chaim Anselm also favours my reading of the teshuva (see http://www.kisse-r.co.il/articlet.asp?type=mamar&i=63).  Of course, no-one is obliged to follow their, or my, reading of the teshuva.
 
Upon rereading the teshuva, I still think my reading is preferable.  It does not seem that the gravity of the case RAE was discussing is the relevant point.  If it were, why would RAE need to state in his second sentence that *it is permitted l’tzorech horabbim*?  RAE is stating the general rule, of which his specific case was a particular example; there is no hint that it was the extraordinary nature of the case he was dealing with that justified his decision.    Why even mention l’tzorech horabbim, when that expression is much weaker in force than hezek horabbim, which is the expression used in the Gemara and SA?  It seems to me that RAE understands that a genuine tzorech horabbim is equivalent to, or a subset of, hezek rabbim.
 
R. Yisraeli's proof from Bava Metzia is persuasive in my eyes, but is certainly equivocal, so I will not bother arguing about it.
 
I apologize to R.ZS for accusing him of ignoring Acharonim or being anyway unorthodox, as he clearly honestly thinks that his reading of RAE’s teshuva is preferable to mine, and R. Shaul Yisraeli’s, and R. Rosen’s, and R. Anselm’s.  The tone and language of my post was prompted by his attack on R. Eli Turkel and his question *How can you possibly imagine that this law allows the public to move the grave and build the road?*, as if anyone claiming such a thing must be either stupid or disingenuous.  Stupid I may be, but I do think my reading of the teshuva is preferable, and I think that even my detractors would have to agree that it is tenable, in which case accusations of *false claims* about what Acharonim held are out of place.  We are both trying to understand the truth, so there is no room for accusations.  
 
Putting aside what RAE did or did not mean, the more general point here is that made by R. Anselm.  We are dealing with an issur derabbanan here (see the slew of authorities he quotes in his article to substantiate this).  We have the opinion of the Noda BiYehudah that the issur does not apply to bones without flesh. We have the pagan artefacts which archaeologists have extracted from the site (unless they were placed there to test our faith…).  And we have the fact that mumchim claim that this cheder miun will save lives and interference with the project will have the opposite effect.  In those circumstances, I maintain that the violent opponents of the pinui who had to be dragged away from the site have an agenda which is not simply dictated by the requirements of shas and poskim.
 
Kol tuv
Dov Kaiser
 


 
 
Dov Kaiser wrote:
 
>> 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.
 
Exactly. We know nothing of the circumstances, and therefore we can
learn nothing from the case. The only thing we do know about the case
they were discussing is that it was an extreme one: "ein lecha hezek
harabim gadol mizeh". One can speculate all kinds of emergencies that
would justify such language, but the desire to expand a road (or a shul
or a hospital) is not one of them. On the contrary, the fact that RAE
says it's an extreme case, which is justified by kal vachomer from what
we already know, means that we can't expand it beyond what we already
know. Dayo leva min hadin lihyot kenidon. RAE's case was one in which
the heter was *more* obvious than in the Chavot Yair's case, not less
obvious.
 
 
> 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).
 
R Rosen does not "point this out", he merely asserts it without any
argument to support him. It is not clear at all that 'hezek rabbim'
"encompasses" 'tzorchei rabbim', whatever that means. It is *certainly*
not clear, in fact it's not at all implied, that one may do any thing.
This is what lawyers call "conclusory". I do not believe that you can
demonstrate the logic to get from A to B. Without knowing what RAE was
talking about, how can you possibly get to the conclusion that he was
talking about expanding a road, or that his psak would apply to such a
purpose?
 
 
 
> You are certainly entitled to read the Gemara and SA differently from
> R. Dovid Oppenheim, the Nesivos and R. Akiva Eiger
 
No, I am not. But you are not entitled to put your own ideas into their
mouths and adopt their authority for whatever you like to say. We know
what the Chavot Yair's case was, and we know that RAE's case was even
more obvious than that. Neither case was in any way comparable with
expanding a road, or any other generic "tzorchei rabbim".
 
 
> especially when it emanates from such greats as R. Akiva Eiger.
 
It doesn't. The claim that it does is insupportable.
 
 
> And even if you think it is a legitimate 
> approach to disregard Acharonim in formulating halacha
 
I am *not* the one disregarding Acharonim here. To the best of my
knowledge *no* Acharon says anything like what you are claiming.
 
 
> you certainly can?t accuse those who follow the mainstream approach
> of making things up.
 
What mainstream approach? Who is this "mainstream" that takes this
approach?
 
 
 
> 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.
 
Then perhaps you can name a few, *and* show why you think they did so.
I categorically deny that either the CY or RAE wrote any such thing,
and it's not exactly kavod to them to falsely claim that they did.
 
 
> 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.
 
I think misattributing opinions to authorities who never held them
lowers the discussion a whole lot more.
 
 
> 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.
 
"Tzorech harabbim" is not the issue. The issue is "hezek harabbim",
and in the case of an existing shul the hezek is there, while in the
case of a *non*-existing ER it is not. If this were merely a
proposed shul, or even a proposed expansion of an existing shul, you
have no basis for assuming it would be permitted.

 
> 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.
 
However the city is there now, and it is assur to have a tree within
its migrash. Therefore the tree must go. And of course there's no
issur in doing so, since it doesn't belong there.
 
 
 
> 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.
 
And his conclusion is so radical that even R Rosen isn't ready to
accept it. Well, now we're no longer discussing Acharonim. Nobody
today is required to accept RSY's logic or psakim.
 
 
> 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.
 
Perhaps it's the other way around, and some people's dedication to the
zionist project makes them refuse to listen to any argument in favour of
leaving kevarim alone. Perhaps this is what leads them to misrepresent
authorities in their support. As for me, my only agenda is a close and
careful reading of the sources, and not reading into them more than they
say. I have no skin whatsoever in the specific issue. Perhaps moving
the graves is indeed permitted, and if so I would have no objection; all
I've ever maintained is that such permission can't confidently be derived
from the sources cited. If it is permitted, then that permission must
be derived from other sources. 
  		 	   		  
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