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Parsha Insight

Shabbat Parshat Emor 5768

Rabbi Braun

Often people come to ask questions looking for a leniency or a loophole. They are not interested in what the halacha demands of them perse, but what they can do to avoid adhering to what they perceive as the halacha.

There is one area of halacha where it is ok to seek the leniency; where we can do so with rabbinic support and encouragement. That area is the halachot related to aveilut – the laws of mourning.

The Talmud in a number of places records the ruling that “the halacha is decided in accordance with the lenient view with regard to a mourner.” 

I will give you one example of the rule that is very familiar to us but there are numerous examples in the literature.

The Talmud in Moed Katan, 19b has an argument between Abayei, rava and the nehardai regarding the end of shiva and shloshim, specifically whether they end in the morning or in the late afternoon at the end of the day.

Abayei argues that we end shiva on the morning of the seventh day but while we conclude shloshim at the end of the 30^th day.

Rava says the opposite – we end in the morning on the 30^th day but not the 7^th day.

The Nehardai argue that both on the 7^th day and the 30^th day we end in the morning and their rationale is “in the laws of mourning we follow the lenient opinion.”

This rule is explicit in the Talmud, accepted by the geonim, the rishonim, and recorded in the early and late codes. Some argue that the rule even applies when the lenient position is the minority opinion and others argue that the rule is in effect even when the strict position is the one that appears in our shulchan aruch. If you are familiar at all with the halachik system, both of those statements are truly unbelievable.

Why should that be? What is so different about this body of law that we reverse the general halachik rules in order to be lenient? You won’t find it by Shabbat or Kashrut or any other area of law. Why here?  

I would like to try and explain the phenomenon by looking at the first section of this morning’s Torah reading. There we read of the special restrictions and prohibitions that relate specifically to the Kohanim. The first of those, chapter 23 verse 1, is the command not to come in contact with a dead body. The Kohanim, due to their special and holy status, are prohibited from defiling themselves by coming into contact with a corpse.

The next two verses list the exceptions. A kohen can defile himself for a spouse, father, mother, son, daughter, brother and unmarried sister.

The Abarbanel in his commentary to the Torah asks the obvious question. Why make the exception for relatives?

He sets up the question as follows. There are two values here that come into conflict. On the one hand burial is important; to take care of someone who has passed away in a respectful manner is of critical importance. On the other hand, however, we have the status of the Kohan to consider. To protect and enforce their holiness, they are not allowed to do things that are permitted to non-kohanim. That too is important. When someone dies, those two values come into conflict: the kohen can perform the burial and sacrifice the kehuna or abstain from the burial and protect the kehuna status.

The Abarbanel basically argues that God should decide which is more important - if the burial is the greater value then let the Kohen participate in all burials and if the kehuna is the greater value then tell the kohen that there are no exceptions - not even for close relatives. That is a question at least worth thinking about.

The Abarbanel’s answer is that the general rule is “do not defile,” and the exceptions are given because, for those close relatives, there is no one else who will bury them. And if there is no one else to take care of it, then you must do it, and so permission is begrudgingly given in the Torah. Then, the argument continues, once it is given, it is given and even if someone else can do it, the Kohen still can participate.

Ralbag, or Gersonides, provides a different answer that I believe hits the nail right on the head.

This is not a begrudging allowance being made. Rather he writes, “God wants the kohen to defile himself for these relatives in order that he should mourn them properly, for in this there is purpose as we explained by Abraham’s eulogy for Sarah and his crying over her loss.” Therefore, God commands the Kohen to perform the mitzvah of coming into contact with the corpse of his relative.

The is not something to do because no one else will, rather something to do because it is a critical part of the Kohen’s mourning and thus it only applies to those relatives for whom he is obligated to mourn. 

I believe that this is the more correct approach not only because intuitively I feel that way, but because I believe that the halacha bears it out as well.

Is a Kohen allowed to opt out of this defilement? Can he say, “I know that I am allowed, but I am not interested?” The halacha says no – the Kohen must become Tameh even if someone else is there to do it. According to the Abarbanel, the Kohen should have the right to opt out and protect his status. The fact that the kohen must become Tameh seems to indicate the Ralbag is right, this is something the Kohen needs to do and thus has no choice!

This I believe is the divine model for the rationale of our rabbinic rule that “we follow the lenient approach in aveilut.” God is teaching us that sometimes exceptions need to be made in order to allow a mourner to be able to mourn properly. Generally, the kohen must adhere to this higher code but the exception is made when he is a mourner.

What is critical to understand and most beautiful to appreciate is that this does not mean that we violate the halacha to make the mourning more meaningful. No, the awareness of the emotional state of the mourner and the need for some flexibility in order to help comfort the mourner and allow him to grieve properly is actually built into the halachik system and process. God writes it into the Torah and we have written it into our codes.