[Avodah] [Areivim] More on Reviving a Ritual of Tending to the dead

[Chana Luntz]

RJK writes:
> ISTM that Rn' Chana, in her "on the other hand," makes a jump from non-
> Jew to C and R; that is, the sources she quotes and on which she bases
> her analysis speak about an akum participating in burial rituals, but
> then, in her conclusion, she speaks, for the first time, about minim
> (who, I must assume from the context, she equates with C and R Jews).
> Am I missing something?;

As I understood it, the thread a heart involves a discussion about whether
it might be a "good thing" to encourage R and C to set up chevrei kadisha
and do taharos.  The argument for was that there were people who would not
get (or whose relatives would not let them get) an Orthodox tahara, but
might be prepared to allow a non Orthodox tahara.  The argument against was
twofold: a) a number of the people potentially participating in the non
Orthodox chevrei kaddisha might well be (in fact are likely to be)
halachically not Jewish (hence the tahara would actually be being performed
by an akum) and b) even in relation to those who might be halachically
Jewish, there was scepticism as to whether they would be considered to be
saying the prayers properly, believing in HKBH etc etc (ie that they were
really minim).  And the argument then came back that even if a) and b) were
true, ie the chevrei kaddisha might be made up of non Jews and non
believers, does it really matter, or is what really matters that the meis
has an appropriate Jewish burial, regardless of who does it.

> do the sources speak about minim?

No, the sources discussing doing a tahara on yom tov do not speak
specifically about minim (but it does speak specifically about a tahara done
by an akum, which was at least half of the equation, as there would seem to
be a reasonable risk that at least some of the participants in a C or R
chevra kadisha would have had a conversion that was not recognised by the
Orthodox, or, in the case of R, were of patralineal descent).

But there are also the basic sources regarding minus.  The basic principle
is that a mumar l'chachis or a mumar lchalel shabbas befarhesia dino k'oved
kachovim (see eg Yoreh Deah siman 2 si'if 5) (this is usually taken to go
l'chumra and not l'kula, ie a mumar still has to give a get, although there
are indeed rishonim who held that even that is not necessary and that the
dino k'oved hachovim stretches even that far). But it seems to me
inescapable that when eg the Levush is discussing kovod hameis and saying
that it would be a bizayon for the meis if the tahara was done by an akum,
he would not have included a mumar l'chachis and a mumar lchalel shabbas
befarhesia in that equation had he been asked the question.  And it is also
unquestionable that when the Magen Araham is saying it is the minhag that
the tahara is done by a Yisroel and not an akum, he meant a halachically
observant Yisroel (and, if one is Orthodox, one understands that to be an
Orthodox halachically observant Yisroel, I know that is not the C view, but
we are assuming an Orthodox view here).

Today we have softened this line regarding various people having the din of
an akum generally on the grounds that we treat them as a tinuk shenishba, ie
not morally culpable for what they do due to their upbringing.  Of course
the level of culpability attributed varies.  In the case of C and R, Rav
Moshe, for example, famously exempted the laity from moral culpability but
refused to do so for the clergy, taking the view that they were minim vadai,
and therefore eg their brochos were null and void(see eg Iggeros Moshe Orech
Chaim chelek beis siman 50).

So, the fundamental question that arises is - is it appropriate to stretch
the minhag of doing tahara by way of a halachically observant Yisroel to
include a tinuk shenishba?  And that would seem to be linked to the question
of bizayon hameis.  Because it seems that there is no intrinsic problem in
an akum doing the tahara, aside from minhag and aside from bizayon to the
meis.  So the question then becomes, is it any less a bizayon to the meis to
have the tahara done by a tinuk shenishba than an akum?  Why would that be?
In discussing the question of bizayon, the position of the rishonim appears
to be that it would be a bizayon to the meis if Jews were mechallel yom tov
d'orisa in order to tend to them, and indeed that appears to be the Radvaz's
argument why Jews should not even violate issurei d'rabbanan (and the
counter argument appears rooted in the more general waiving of rabbinic
obligations in certain kavod type situations).  The implication here, it
seems to me, is that while we might say that nebech, a tinuk shenishba
doesn't know what they are doing and are not morally culpable, the bizayon
to the meis, who is now in the olam shel emes, to have the tahara done by
them would seem to be the same or if anything, perhaps greater.  The akum is
not required to do mitzvos (save for the sheva mitzvos benei noach, which
they may well be doing), and the tinuk shenishba is failing (albeit due to
circumstances) to do what they are meant to do. Having which as one's
attendant gives greater kavod to the meis?

 Perhaps she
> could clarify this, but as I see it based on what she wrote, while she
> has educated us (as she always does) on the issue debated between RMSS
> and RZS of the proverbial "Gregorian monks" participating in a tahara,
> she has not, notwithstanding her conclusory remarks, provided us with
> sources or educated us on the original question concerning C and R Jews
> participating in a tahara.

I have tried, see above.  But I also raised a further issue in the following
passage:

> >But on the other hand, once we are clearly dealing with minhag 
> >yisroel, issues of not breaching minhag in order to encourage minus do 
> >raise their heads, so that, for the greater good of the klal, it might 
> >be that it is better not encouraged (which really gets us into the 
> >common question about how to relate to Conservative, Reform etc where 
> >it is often the case where the individual may benefit but the judgment is
that the klal does not).

You see, even for those who disagree with Rav Moshe and hold that even a
member of the C and R rabbinate can be considered a tinuk shenishba, there
is still a different equation when you are potentially talking about
strengthening problematic movements as a whole.  And sometimes that is
regarded as overriding the needs of the individual (eg there are various
rumours regarding psak that even if a C shul is the only one to go to, one
should not go there to hear shofar) not to mention lines in the sand
famously drawn regarding giving divrei torah in the vernacular.  There is a
long history of not doing things that one otherwise might do because of
potential strengthening of the minim (not saying the aseres hadibros
b'tzibbur for example) or the community of minim.  Whether one should or
should not apply these sources to C and R is a question as long standing as
the existence of these movements, and we are not going to solve it here, so
all I was trying to do was to point out that it was at one with all of these
other debates.

> Joseph Kaplan=

Regards

Chana