Cremation & Burial in a Mausoleum

1. Jewish tradition strongly discourages cremation and burial in an above-ground mausoleum. In order to preserve Jewish “tradition,” here used in the sense of the popular religious culture that serves as Jewish law’s protective outer armor, some Orthodox rabbis have offered an ideological Narrative, in Hebrew, Aggadah or theology,  that talks to and tries to persuade the soul of the living, pulsating culture on the  Orthodox street. The Chabad web site reports:

“The body, on the other hand, was taken from the ground — “the L-rd G‑d formed man of dust from the ground”¹ — and must therefore return to the earth. This is expressed in the words that G‑d tells Adam, the first man,  “For dust you are, and to dust you will return.”²

According to Jewish legal theory, Jewish law is neither “customs and ceremonies” nor is it a mysterious religion; it really is Law. This Torah law is not in heaven anymore,³ it tolerates no secret laws,⁴ and the legally normative sections of the Written Torah begin in Exodus,⁵ and not in Genesis.  Since there are no laws given in Genesis that bind the entire Jewish people—because there was no Jewish people yet in existence at that time—the citation of this Genesis passage can be very misleading.  After all, only the  Bet Din ha-Gadol sitting in plenary session is authorized to generate Jewish law by interpreting Biblical texts.⁶ If latter day saintly rabbis are indeed empowered to interpret Biblical texts as if they are reading God’s mind and intent, the Torah becomes unreadable, unreasonable, and undoable.

Jewish laws are presented as Narrative, not as Law. Consider the following introduction:

“The laws I will attempt to present here are a distillation of rabbinic writings over the years. In terms of some of the deeper reflection on the human body and its role that I hope to provide — that is distilled from deep Chabad discourses, though I can harly assert that my distillation of this lofty concept is categorically correct.”⁷

 The author concedes that he is offering a distillation and description, he relies on “deep Chabad discourses,” which are the apodictic declarations of unvetted great rabbis, which ought to carry the binding force of Jewish law for both the Chabad community and all Israel as well.

It is first claimed that not only is cremation forbidden, it is ruled that in principle the cremation ashes may not even be buried in a Jewish cemetery.⁸ This is an optional, preferred policy opinion cited but not formally mandated by R. David Hoffmann.⁹

Moshe Feinstein takes an even more strident stand regarding cremation than does R. Hoffmann. He categorically forbids Jewish burial for the deceased’s remains,¹⁰ believing that cremation per se to be a willful rebellious act against Torah, specifically, the belief in resurrection.¹¹ This doctrinal challenge to Torah requires address, protest and unambiguous condemnation.

However,

“all the above does not apply to an individual who was cremated against his will. After the Holocaust, many conscientious Jews gathered ashes from the extermination camp crematoria and respectfully buried them in Jewish cemeteries. Recently, too, I heard of an instance where a hospital mistakenly cremated a Jewish body. With rabbinic sanction the ashes were put into a coffin and given a proper Jewish burial.”¹²

2. Rabbi Hoffmann’s exquisitely nuanced responsum first outlines what Jewish law actually and objectively requires in its canonical, juridical iteration:

1. Biblical law requires that those executed by the court are nevertheless given the respect of same day burial, that they be buried the same day as their execution.¹³
2. Hoffmann astutely observes that the Oral Torah rabbis, acting as Torah authorized legislators rather than as Biblical exegetes, applied this passage to require burial in the ground.
3. But by reducing the body remains to ash, it may be argued that no sanctity attaches to those ash remains. The ash is Carbon and, in this state is no longer an organic substance. Impurity attaches to the human body only after it is no longer alive.¹⁴ But when that body is reduced to ash, the remains are [a] no longer impure and by implication [b] would no longer a substance that requires burial.
4. On these grounds, it may be argued that cremation ash ought not to be buried because Jewish tradition does not require burial and disrespect was shown to that Jewish Tradition by the decedent. This protocol is, however, a matter of policy, not pure law.

R. Silberberg clearly and accurately defines the legal grounds for forbidding cremation:

“Cremating a body destroys most of the body, making burial of the flesh impossible, and thus violates the biblical command.”¹⁵

More precisely, in-ground burial is a Rabbinically derived Oral Torah law, so cremation must be prohibited because

1. There is an obligation to dispose of Jewish human remains by interment.
2. Cremation improperly destroys the remains that the Oral Torah mandates be interred.
3. The Torah passage qavor tiqberenu, is taken to refer to burying the whole person.
4. Cremation also delays the burial of the ash remains.
5. Cremation additionally violates the respect protocol that the Torah affords the dead, in Hebrew, nivvul ha-met.¹⁶

3. Hoffmann was a world class, intellectually urbane, German modern Orthodox rabbi. Like R. Feinstein, he shares a cultural antipathy to an act that violates both the letter of holy law as well as historically conditioned Jewish values and sensibilities. But unlike R. Feinstein, R. Hoffmann clearly distinguishes between Jewish law and communal policy. R. Feinstein, who hailed from Roman Catholic Pruzhan, Poland, considers cremation to be a denial of Torah because, to his mind, it expresses a denial of the resurrection of the dead, the doctrine that promises accountability for Halakhic compliance. Catholics also disapprove of cremation for similar reasons,¹⁷ but only because cremation might be taken to be evidence of apostasy.  However, according to Jewish Law, non-observant Jews are also eligible for Jewish burial.  Jews non-compliant with the family purity rules receive Jewish burial without question, and this violation is far more grave than the act of cremation.¹⁸ Being a sinner, or for that matter, a questioner of religious of faith, does not disqualify someone from Jewish burial. In  R. Feinstein’s Eastern European culture, time horizon, and socially conditioned sensibilities, non-attention to those who opt for cremation does make ideological sense; cremation in this “world” was an act of a spiteful sinner [le-hach’is] who by so doing renounces one’s Torah-defined identity. But R. Hoffmann was dealing with populations of compliant Orthodox Jews, dissident Reform Jews, and an assimilation driven environment. Hence R. Hoffmann’s practical policy reflects [a] the letter of the Torah law, [b] the social reality to which this Torah law is to be applied, and [c] the actual rather than imputed opinions of the people who turn to him for guidance. Both positions are legitimate because Torah law requires an assessment of the social reality variables to which the constant Torah norms are to be applied. The rabbi must make these assessments with human, rabbinic eyes.¹⁹

Conclusion

To conclude:

1. Normative Jewish law requires same day burial in the ground out of respect for the dead with a dispensation delay being allowed only for mourners to arrive, again to show respect for the dead.
2. Because cremation [a] prevents observing the requirement of prompt burial and [b] if done incompletely, also delays burial in the ground of those remains.
3. Since Jewish Tradition mandates interment, which means “in the ground,” and above-ground “burial” does not satisfy this mandate because the Torah obligation of “in ground”  burial has not taken place.
4. The argument that Jewish law requires interment [“to the dust you shall return”] is merely homiletical, because no Torah laws that are binding on the Jewish people are found in Genesis, the Oral law did not make this claim, and the Genesis passage’s plain sense syntax is descriptive of nature’s course and not a command that requires compliance.
5. All contemporary Orthodox rabbis will require interment and not participate either in cremation or mausoleum Some Orthodox rabbis will, like R. Feinstein, regard these deflections from Jewish protocol to be acts of willful Torah renunciation, and treat violators as persona non grata, while other Orthodox rabbis, like R. Hoffmann, will see such acts as highly improper, while not rejecting the people who engage in these acts.
6. Modern/Open Orthodox rabbis do not violate Jewish law’s legal letter, but embrace, support, and address the pastoral needs and requests of non-observant, inconsistently committed, or otherwise non-compliant Jews. Therefore, this Orthodox stream envisages circumstances whereby the discrete burial of cremation ash,  which is not explicitly prohibited by Jewish law, in order to  stretch a welcoming hand to Jews on the religious margin.  Neither position is “fanatic” or “liberal.” They both reflect serious reflection and the instinctive intuition to issue accurate, responsible, and appropriate rulings.

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