Torah Table Talk A New PaRDeS

Tzelem Elohim, Human Rights, Jewish Burial Practices

Parshat Ki Tetzei, Deuteronomy 21:10 25:19
Your dedication can appear here! Support Torah Table Talk. With over seventy mitzvot, Parshat Ki Tetzei touches on almost every aspect of life. Domestic life, judicial considerations, criminal and property law, dress, the role of women in society, returning lost property, kindness to animals, and kindness to those members of society who are powerless. Together, these laws present Judaism not just as a religion concerned with ritual but an entire way of life. While some of these laws may trouble us, there is also a humanistic and moral component to many of the laws in Deuteronomy. The authors of the Etz Hayim commentary write: Even the most marginal members of society, such as a criminal or the female war captive, are fashioned in the image of God and are to be treated accordingly. In our study, this week, we explore the law which protects the dignity of the condemned criminal even after he has been put to death. While it was the custom of the time to impale the body and leave it out in public as a deterrent to others, the body could not be left unburied overnight. This law has important implication both in terms of our burial practices and in our attitude toward the marginal members of society.
Deuteronomy 21:22-23 If a man is guilty of a capital offence and is put to death, you shall hang him on a tree, you must not let his corpse remain on the stake overnight, but must bury him the same day. For a hanged man is Gods curse; you shall not defile your land that the Lord your God is giving you to possess.

PaRDeS
1. Pshat Understanding the plain sense meaning of the text Hang him on a tree: One modern view, with an eye to Assyrian practice, understands this as impalement on a pole or gibbet, though the Mishnah has in view hanging the corpse to a kind of cross after execution. Tree, one might recall, in older English usage, can refer to either a gallows or to a cross. A hanged man is Gods curse: The meaning of these words is in dispute, especially because of the polyvalence of elohim God, gods, divine beings, or spirits. Some modern commentators prefer the last of these alternatives, yielding the sense: a corpse left hanging is a curse or blight to the departed spirit that once inhabited it. The suggestion, however, does not jibe well with You shall not defile your land, a clause suggesting that a corpse left unburied is a violation of the sacredness of the human body, a violation that pollutes the land. To leave a body hanging, then, may simply be a disgrace or a curse in the eyes of God. Alternatively, elohim might even be simply a suffix of intensification: a hanged man is a supreme curse. (Robert Alter, The Five Books of Moses) My Commentary: There are a number of issues in the verses above. What exactly is the practice to which the Torah is referring? Was it hanging, impalement, or crucifixion as some of the commentators suggest? And what was the rationale for not leaving the body out in public overnight? In what sense and to whom was it a curse? It is not clear if the issue here is that it was considered humiliating to the person who was put to death, to God, or to the land which was defiled by the non-burial of the deceased? Whatever the correct interpretation of this verse may be, it suggests that in some way, the condemned criminal still has certain rights and must be treated with dignity. Unfortunately, public hangings are not a thing of the past in some parts of the world. And while leaving the body in public, a common Nazi practice during the Shoah, was meant to be a deterrent to anyone who would defy the authorities, it was considered to be an example of nivul hamet, the desecration of the dead. The treatment of the condemned criminal, even when his death was justified, was still considered to be a defilement of the land. The Torah does not preclude public executions but it forbids the desecration of the dead unconditionally.

2. Remez Allusions: Finding meanings hidden in the text If a man is guilty of a capital offence and is put to death: The adjoining of this passage (with the previous one) informs us that if his father and mother have pity on him, eventually he will lead a bad life and commit transgressions and will be condemned to death (Tanhuma) You shall hang him on a tree: Our sages said: All who are stoned are afterwards hanged for it is stated, for blaspheming of God ends in hanging and he that blasphemes the Lord is stoned. (Sanhedrin 45) For a hanged man is Gods curse: It is a slight to the King (to God), because man is made in the likeness of His image and Israel are his children. This may be likened to two twin brothers who resembled each other; one became a king while the other was seized as a criminal and hanged. Whoever saw him, exclaimed: The king is hanged. The term klal (curse) in scripture always denotes treating lightly or slightly as, (1 Kings 2:8) And he slighted me grievously. (Rashis Commentary) My Commentary: Drawing on Talmudic and Midrashic sources, Rashi attempts to answer the question why is the public hanging of the dead considered to be a desecration? Surely this person loses his rights once he commits a capital crime and is sentenced to die. Drawing on the idea of tzelem elohim, that we are created in the image of God, Rashi suggests that leaving the body to rot in public is a desecration of God in whose image we are created. Most surprising of all is the use of the parable of the twin brothers, one who is king and the other a bandit. By leaving the body in public, people might be led to confuse one with the other. Underlying this parable is the suggestion that the image of God is more than a metaphor; that there is some physical similarity of the human being and God. We tend to take the expression tzelem elohim in metaphorical terms or at least as a reference to intellectual, moral or spiritual qualities. We should note that tzelem clearly means a physical image or an idol in some places in the Bible. The fact that one can distinguish the king (God) from the bandit (the human being) in this parable, suggests much the same. 3. Din Law: Applying the text to life Rabbi Johanan said on the authority of R. Simeon b. Yohai: Whence is it inferred that whoever keeps his dead [unburied] over night transgresses thereby a negative command? - From the verse, You shall surely bury him; (Deut. 21:23) whence we learn that he who keeps his dead [unburied] over night transgresses a prohibitory command. Others state: Rabbi Johanan said on the authority of Rabbi Simeon bar Yohai: Where is burial [as a means of disposing of the dead] alluded to in the Torah? In the verse, You shall surely bury him: here we find an allusion to burial in the Torah. (Babylonian Talmud Sanhedrin 46b) It is forbidden to delay the burial of the dead, and anyone who does so is guilty of transgressing both a negative and a positive commandment. The sages permitted the burial of the dead in order to bring shrouds or a casket, or to publicize the death in the community (so that others can participate in the preparation of the person for burial) or to hire professional wailers. (Note it was an ancient practice to hire people to cry at funeral in order to honor the memory of the deceased). But if the person dies on a Thursday and the father of the deceased wishes to delay the burial until Friday so that he will be buried on the eve of Shabbat so that the person will be saved from chibbut hakever we do not permit him to delay. (Note: Chibbut hakever, literally torments of the grave, is the belief that once buried, angels come and torment the dead in order to atone for his sins. Apparently, the angels did not do this on Erev Shabbat!!) Even under these circumstances, it is not considered a way of honoring the dead; similarly, having many eulogies is not considered honoring the dead (since it involves a delaying of burial). (Rabbi Yekutiel Greenwald, Kol Bo Al Aveilut) My Commentary: The sages took this concept of the immediate burial of the dead one step further. If we have a responsibility to see to the immediate burial of a condemned criminal then how much more is it an obligation to see to the immediate burial of our own loved ones. The rabbis deduced this teaching from this passage in the Torah. The repetition of the word bury (kavor tikberenu) is taken as an expansion of this practice to all areas of life. The dead should be buried as soon as possible. It is interesting to note that in Jerusalem the dead are often buried within 24 hours and sometime even after nightfall so that they do not remain unburied until the next day. There was, of course, some flexibility on this practice as we see

from Rabbi Greenwalds statement above. Proper preparation for the burial and informing the community of the death become grounds for the delay of burial. The delay, however, is never for the sake of the dead but for the good of the community. Today we sometimes delay funerals in order to give families the time to travel from distant locations. It is interesting to note as well above that having too many speakers at a funeral might be considered a form of delaying the burial and not in the interest of the deceaseds dignity. Dignity, here, is defined by Halachah and not social practice and conventional wisdom. 4. Sod The Meaning and Mystery of Faith One of the most controversial passages in Elie Wiesels book Night occurs toward the end of the book when the inmates are forced to watch a public hanging which includes a young boy. Where is God? asks one of the inmates in Auschwitz. And someone else answers, Hanging from the gallows. While some have taken this as an accusation or even a denial of God, I understand it just the opposite. It is a lament because the image of God hangs from the gallows in the innocent life of the boy. Even in Auschwitz, God is present. Deuteronomy 21:22-23 has powerful moral and spiritual implications both for Jewish practice and for how we view our fellow human beings. Abraham Joshua Heschel writes: The image of God is employed in stressing the criminality of murder. For your life-blood, too, I will require a reckoning for human life, of every man for that of his fellow man. Whoever sheds the blood of a man, by a man shall his blood be shed; for in the image of God was man created. The image of man is also referred to in urging respect for the body of the criminal following his executionGreat, therefore, must be the esteem for every manman holds in himself a breath of God. (Heschel, Sacred Image of Man) This concept is applied to Jewish funeral practices, as we have seen above. But we may struggle with this idea. Is a delay in the burial of the dead still considered to be a desecration of the dead today? What circumstances justify such a delay? Whatever the answer to these questions may be, we find here a fundamental ethical concept of Judaism at the heart of Jewish practice: we are created in the image of God. God has no images in the world except for one: human beings, who are fashioned in Gods image. This idea underlies how we treat others and how we treat ourselves.

Questions to Ponder
1. Should society allow for the execution of criminals and if so under what circumstances? 2. What might be some of the reasons for the law demanding the immediate burial of a condemned criminal upon his execution? 3. What does the expression image of God mean to you? 4. Under what circumstances should we allow for a delay in burial? What is a reasonable delay in burial?
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All it takes to study Torah is an open heart, a curious mind and a desire to grow a Jewish soul.
Copyright 2011 Rabbi Mark B Greenspan