348) MAY PARENTS TELL THEIR CHILDREN NOT TO MOURN FOR THEM?

 

INTRODUCTION:

What is the view of Halachic sources regarding parents who tell their children not to mourn for them? This article is based extensively on the research by Rabbi Dr Shlomo Brody[1] from Bar Ilan University who writes that his parents did not want their children to observe mourning practices for a full year. He then set about researching the matter in Halachic sources and these are some of his findings.

NOTE: This is a purely academic exploration of various sources and is not meant as an authoritative guide. For practical purposes, as always, the reader should consult with his or her competent Halachic decisor on matters of this nature.

THE POPULAR MINDSET:

Brody begins by pointing out that:

“the experience of avelut [Jewish mourning practices][2] has been popularized as one of great existential meaning.”

This is entirely correct. Much literature abounds explaining the psychological need to mourn appropriately so that the healing process can begin. Clearly, many contemporary rabbis have adopted this approach as it generally works in tandem with, and supports, many of the Jewish mourning observances.

However, our interest is not so much in the undeniable importance of the basic ideas and practices of Shiva (the first week) and Sheloshim (the first month), but more with the extended period of Yud Beit Chodesh (the first twelve months). It is in that extended one-year period that many would be surprised to see that, as Brody puts it:

“Jewish law permits parents to request that their children not observe these prohibitions after the initial 30-day period”.

Let us look at some of the details of the argument by going through some sources which will establish what is absolutely required by Halacha and what is not.

 

BURIAL:

According to the Talmud^[3], with regard to the burial, there is no debate that is a requirement of Jewish law. Burial in the ground is an important Talmudic principle that is derived from a verse in the Torah:

איכא דאמרי אמר רבי יוחנן משום ר"ש בן יוחי רמז לקבורה מן התורה מניין ת"ל כי קבר תקברנו מכאן רמז לקבורה מן התורה

The Talmud states that burial is a commandment that is traced directly to the Torah which uses the double expression קָב֤וֹר תִּקְבְּרֶ֙נּוּ֙ “you shall surely bury him” which emphasises the importance of a burial in the ground.[4]

The Talmud, however, does debate the issue of whether or not one has to respect the wishes of a deceased who had requested not to be buried:

לא בעינא דליקברוה לההוא גברא^[5]

In an attempt at answering this question the Talmud asks whether the underlying principle of burial in the ground is משום בזיונא “to prevent disgrace”, or משום כפרה “to attain atonement”?

איבעיא להו קבורה משום בזיונא הוא או משום כפרה הוא למאי נפקא מינה דאמר לא בעינא דליקברוה לההוא גברא אי אמרת משום בזיונא הוא לא כל כמיניה ואי אמרת משום כפרה הוא הא אמר לא בעינא כפרה מאי

“The Gemara asks: What is the practical difference that arises from knowing the reason that burial is necessary? The Gemara answers: There is a difference in a case where one said before he died: I do not want them to bury that man, i.e., myself. If you say that burial is required on account of disgrace, it is not in his power to waive his own burial, as his family shares in the disgrace. But if you say that burial is required on account of atonement, didn’t he effectively say: I do not want atonement, and with regard to himself one should be able to do as he wishes? What, then, is the halakha?”

In other words, if the reason for burial is “to prevent disgrace”, then others (i.e., the family and friends) have a stake in the decision making because they are directly affected. But if the reason is “to attain atonement”, then the deceased can choose whether he or she wants that atonement (as no one else is affected by that decision).

Unfortunately, that’s where that Talmudic passage leaves the question and does not proceed to enlighten us as to the actual underlying reason for burial.

 

a) AN ARGUMENT FROM POST-TALMUDIC LITERATURE IN FAVOUR OF BURIAL BEING “TO PREVENT DISGRACE”:

However, the question does seem to be answered in post-Talmudic times, where we see that the consensus of later mediaeval commentators (and therefore from a position of practical Halacha), the ruling becomes that a person must always be buried even if they requested not to be buried (the assumption being that burial is therefore considered to be “to prevent disgrace”). This ruling was eventually codified in the Shulchan Aruch of R. Yosef Karo.[6]

 

b) AN ARGUMENT FROM ANOTHER TALMUDIC TEXT IN FAVOUR OF BURIAL BEING FOR “ATONEMENT”:

Fascinatingly and surprisingly, Brody shows that Jewish law sometimes allowed for the denigration to some degree of the body of a deceased in order to attain atonement:

שלא נספד ולא נקבר או שחיה גוררתו או שהיו גשמים מזלפין על מטתו זהו סימן יפה למת ש"מ יקרא דשכבי הוא שמע מינה:

The Gemara suggests: Come and hear a proof from a baraita: Rabbi Natan says: It is a good sign for the deceased when he is punished after his death and does not receive an honorable burial or eulogy, as his lack of honor brings him atonement for his sins. For example, if the deceased was not eulogized, or if he was not buried, or if a wild animal dragged his corpse, or if rain fell on his bier, this is a good sign for the deceased. Learn from the baraita that a eulogy is delivered for the honor of the dead, so that when he is deprived of this honor, he achieves atonement for his sins. The Gemara affirms: Learn from the baraita that this is so.^[7]

Brody elaborates on this unusual and little-known practice:

“While in general we do not respect a person’s request for his body to be posthumously denigrated (see, for example, Sefer Ḥasidim, ed. Margoliyot, #620), some decisors do permit it if the intent is to achieve kapparah (atonement). See, for example, Ḥokhmat Adam, Sha‘ar Simḥah, 155:10.”

(Remember that we are discussing a detailed technical argument in law to derive legal principles and parameters and not something to be emulated, although one cannot deny that such customs were sometimes observed.)

In principle, this Talmudic extract may indeed be a source for the unresolved issue of whether burial is “to prevent disgrace” or “to attain atonement”. By tacitly permitting the family to honour someone’s request to be denigrated before burial, the Talmud may be suggesting that burial is for “atonement” more than “to prevent disgrace”. The lack of honour by denigration or having no eulogy said, is considered a means of attaining that “atonement”.

Nevertheless, our original text does not specify whether the reason for burial is “to prevent disgrace” or for “atonement”.

 

ESTABLISHING A WORKING PRINCIPLE:

Unfortunately too, the Talmud did not deal with matters of Avelut, Shiva and Shloshim either, where an individual had requested that such practices be waived. And certainly, the Talmud did not deal with the case of a parent requesting that Kaddish be waived, simply because it’s recitation in the manner we observe today was only instituted from around the twelfth century.

[See Kotzk Blog: 256) WHY DID THE MOURNER’S KADDISH SUDDENLY EMERGE DURING THE 12th CENTURY?]

Although the Talmud is rather vague on all these issues, what does emerge clearly from our original and unresolved Talmudic text about the person who did want to be buried, is that in principle at least, where no direct commandment exists and where only the deceased is involved, he or she could choose to suggest that the children waive certain mourning practices.

As Brody writes:

“[T]he paradigm seems to be set that if the ritual is not a bona fide commandment and is only to benefit the deceased (e.g., to gain atonement), then the deceased may elect to pass on the ritual.”

 

EULOGIES:

A similar Talmudic debate took place regarding eulogies:

איבעיא להו הספידא יקרא דחיי הוי או יקרא דשכבי הוי למאי נפקא מינה דאמר לא תספדוה לההוא גברא

“A dilemma was raised before the Sages: Is the eulogy delivered for the honor of the living relatives of the deceased, or is it delivered for the honor of the dead? The Gemara asks: What is the practical difference between the two possible reasons? The Gemara answers: There is a difference in a case where one said before he died: Do not eulogize that man (i.e., myself). If the eulogy is delivered to honor the deceased, he is able to forgo this honor, but if it is delivered to honor the living, he is not, as it is not in the power of one individual to forgo the honor of others”.

In this case, the Talmud does come to a conclusion that eulogies (as opposed to burial) are considered to be for the honour of the deceased (as we saw in the text on denigration and eulogies) and therefore one can elect to waive the custom of having a eulogy recited. This is also recorded in the Shulchan Aruch[8] and many Halachic decisors consider the wishes of the deceased to be binding in the case of eulogies (mitzvah lekayem divrei hamet).

 

THE BASIC LEGAL PRINCIPLES:

Thus far we have identified the legal principles that any mourning practices which are:

a) mitzvot or commandments required by law, and/or

b) which are for the benefit of the surviving family or others

may not be waived.

However, practices that are not clear mitzvot nor for the benefit of the family, may be waived should the deceased request that they be waived.

 

SHIVA AND SHLOSHIM:

With regard to waiving Shiva and Shloshim we need to turn to the later codifiers. R. Yaakov Reischer and R. David Oppenheim (who happened to be brothers-in-law) ruled that we must respect the wishes of a person who asks his family not to observe Avelut or mourning practices such as Shiva and Shloshim.[9] They interpreted the law to view Shiva and Shloshim as an honour to the deceased and therefore the wishes of the deceased must be honoured.

Not everyone, however, agreed with them. The Rama based himself on R. Yaakov Weil (15^th century, known as the Mahariv) and concluded that Shiva and Shloshim cannot be set aside.

Brody explains that:

“Accordingly, the generally accepted position is to follow the Rama’s explicit ruling that these initial periods of avelut may not be waived.”[10]

 

THE YEAR OF MOURNING:

Up to now, we have only been discussing the initial Shiva and Shloshim period. However, regarding the obligation of the twelve-month mourning period, R. Weil, who previously stated that Shiva and Shloshim cannot be set aside, maintained that the twelve-month mourning period may be dismissed by the parents because it was certainly instituted only out of honour to them. And “parents may waive this honorary rite”. This would also be in keeping with the general Talmudic^[11]  principle that parents may waive acts of honour that their children want to show them during their lifetime, such as not sitting in one’s father’s chair and the like.

According to R. Chaim Medini in his Sedei Chemed, while there is disagreement, as we have seen, regarding Shiva and Shloshim, no one argues with the view of R. Weil that parents may waive their children’s obligation to observe the full year of mourning:

אבל בענין י"ב חודש, לא מצינו חולק על מהרי"ו

In fact, according to R. Yitzchak Yosef[12] not only should the children not observe the year of mourning if their parent waived the honorary rite, but, although they cannot be forced to actively break the mourning practices by say, making them buy new clothes – they would be performing a prohibition if they actually do perform the mourning rite!

Brody gives an example:

“This was the case in the particular question addressed to Rabbi Weil regarding whether a woman may wear a kerchief or turban traditionally worn by mourners if she was told by her mother not to do so. R’ Weil ruled that it was prohibited for the mourner to wear the kerchief after the 30-day point.”

 

KADDISH:

What about Kaddish? As mentioned earlier the custom to recite Kaddish was only instituted in the 12^th century and it was believed that by reciting it the soul would be spared from gehinnom (hell).

According to the Rama[13]:

וכשהבן מתפלל ומקדש ברבים, פודה אביו ואמו מן הגיהנם.

“When the son recites Kaddish in a minyan, he redeems his father and mother from hell.”

If the reason is to spare the soul from suffering in the afterlife, then this recitation of Kaddish is meant “to attain atonement” and not “to prevent disgrace” (as per our earlier discussion). This being the case, since technically it is for the parents’ benefit and not the child’s, a parent can tell a child not to say Kaddish.

R. Elyakim Getz (1681-1739) in his Even haShoham^[14] maintains that because Kaddish is for the parent’s personal benefit, the father may directly instruct his son not to recite Kaddish.  And if the son did say Kaddish, it would be considered as breaking a prohibition as it would be an act of commission, not omission (as we saw in the case of R. Weil and the mourner’s Kerchief).

However, according to the contemporary R. Yisroel Dovid Haparnes, if the son’s not saying Kaddish would result in bringing the son shame, he would be permitted to recite the Kaddish.

Brody explains:

“This is in accordance with the idea that one can waive one’s kavod (honor) but not to the point of bringing to oneself disgrace (bizayon). Therefore, he [R. Haparnes][15] rules that if one is already at a minyan during the time of the mourner’s Kaddish, he should recite it.

In a similar vein, R. Yosef Shaul Nathanson (1808–1875) maintains that if a parent requested that his son omit a section referencing Mashiach in the Kaddish (according to the Chassidic rite: veyatzmach purkanei vekarev meshichei), the son should omit that section.[16]

Other’s like R. Yaakov Breisch (1895-1976) question the motivation of the parent who waives the Kaddish obligation. If it is done so as not to bother the child by making him attend synagogue every day and interfere with his work schedule, then the parent, in his view, is not really expressing the idea that he doesn’t want his child to recite Kaddish.

 

CONCLUSION:

R. Ovadia Yosef, simply ignores the ruling in Even haShoham by R. Elyakim Getz, that the father may instruct his son not to recite Kaddish, and claims that if the father knew the benefit he would accrue in the afterlife by his son reciting Kaddish, he would never have suggested having it waived in the first place. Brody suggests that reasons such as this are probably why we do not find this practice of waiving Kaddish recommended or even discussed in the more modern Halachic works.

In contrast, however, the practice of waiving the Yud bet Chodesh, or the full year of mourning, is widely accepted. All Halachic decisors permit it after the Shloshim period, and as we have seen some even allow it for earlier stages of mourning such as Shiva and Shloshim as well (although it is not the general practice).

According to Brody:

“It should be clear, however, that the prerogative of a parent to choose, on their own initiative, to waive avelut for their children after the 30-day mourning period remains entirely acceptable.”

Thus, a strong argument remains to respect the wishes of a parent who tells his or her children not to observe the full year of mourning.

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[1] Brody S., 2021, May Parents Waive the Requirements of Avelut?, Ḥakirah, the Flatbush Journal of Jewish Law and Thought, 29, 143-167. See also Brody’s article in the Jerusalem Post, April 1 2021, Jewish law: May parents waive children’s obligation to mourn for them? Can a parent request a child not to recite kaddish for them?

[2] Parenthesis mine.

[3] b. Sanhedrin 46b. 

[4] b. Sanhedrin 46b.

[5] ההוא גברא lit. “the other person”, in this case, is a reference to the individual himself, speaking of himself.

[6] Yoreh Deah 348:2-3.

[7] b. Sanhedrin 46a.

[8] Choshen Mishpat 253:30 and Yoreh Deah 344:10.

[9] R. Reischer, Sefer Iyun Ya‘akov to Sanhedrin 47a and Shu”t Shvut Yaakov 2:102 (cited in Pitchei Teshuvah). R. Oppenheim, Shu”t Nishal David, Yoreh Deah #26.

[10] Shach 344:9, Pitchei Teshuvah 344:2, Birkei Yosef 344:5, Arukh Ha-Shulchan 344:7.

[11] b. Kiddushin 32a.

[12] Yalkut Yosef, Avelut, 41:3.

[13] Yoreh Deah 376:4.

[14] Shu”t Even Shoham, Siman #42. This is also cited by Pitchei Teshuva on Yoreh Deah 344:10.

[15] Parenthesis mine.

[16] See Shu”t Shoel U-Meshiv, Mahadurah Telita’ah 1:259.