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The Prohibition of Work/Melacha (2) – When?

The Prohibition of Work/Melacha (2) – When?

The prohibition on melacha is most severe during the first three days. The gemara says:

תלמוד בבלי מסכת מועד קטן דף כא עמוד ב
תנו רבנן אבל שלשה ימים הראשונים אסור במלאכה,
ואפילו עני המתפרנס מן הצדקה.
מכאן ואילך עושה בצינעא בתוך ביתו, האשה טווה בפלך בתוך ביתה.


Bavli, Moed Katan 21b
Our Rabbis have taught: A mourner is prohibited in melacha for the first three days, and even if he is a person who is supported by tzedaka. From that time and going forward, he can do melacha privately in his home and a woman can weave with the spindle.

The Rabbis here understand that the first three days are more stringent than the remaining four as related to the prohibition of melacha. They go so far as to demand that even a person who is unable to support themselves may not work. What is different about the first three days? …

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The Prohibition of Work/Melacha (1) – why?

The Prohibition of Work/Melacha (1) – why?

Let us begin with the prohibition of Melacha (Doing Work), מלאכה. The Gemara in Moed Katan says:

בבלי מועד קטן דף טו עמוד ב
אבל אסור בעשיית מלאכה,
דכתיב וְהָפַכְתִּי חַגֵּיכֶם לְאֵבֶל (עמוס ח:י)
מה חג אסור במלאכה, אף אבל אסור במלאכה.

Bavli, Moed Katan, 15b
A mourner is prohibited from work, as it is written ,
And I will transform your Holidays to mourning (Amos 8:10). Just as work is forbidden on the Holiday, so too a mourner may not work.

The gemara makes clear that melacha is prohibited and gives a Prophetic verse as a proof text; however, there is no reason given for this law, and the parameters of the prohibition remain unclear. This essay will address a potential reason for the prohibition of melacha, and the next installment will unpack some of the details.

There are three brief classic texts that serve as the basic understanding of why melacha ought to be forbidden1. We will begin with a passage from the Ramban’s seminal work on mourning, Torah ha-Adam, that gives a simple reason for this prohibition.

רמב”ן, תורת האדם שער האבל – ענין האבלות (עמ’ קע, שעוועל)
…לא נאסרה אלא כדי שיתאבל על מתו ויתאונן על חטאיו

Ramban, Torat ha-Adam, Sha’ar ha-Avel, Inyan ha-Aveilut, bi-Melacha Keitzad (Page 170, Shavel ed.)

[Melacha] was only prohibited in order that he can mourn for the one who has passed and lament upon his sins.

As we mentioned before, there is a strain within Rabbinic theology that sees all loss and suffering as the result of punishment for sin. The Ramban here understands that the prohibition of melacha is meant to ensure that the mourner has the appropriate bandwidth to actually engage in the process of mourning.

Rabbi Mordechai Yaffeh, in his important code wrote:

לבוש יורה דעה סימן שפ סעיף ב
…עיקר טעם דאיסור מלאכה הוא כדי שלא יסיח דעתו מן האבלות

Levush, Yoreh Deah, 380:2

The essential reason for the prohibition of melacha is in order to not allow him to be distracted from the mourning.

The Levush here is trying to make sure that the mourner can focus and avoid distraction. This is a theme that we will see in many areas of the laws of mourning. Rabbi Yoel Sirkis, in his commentary on the Tur wrote:

ב”ח יורה דעה סימן שפ:ג ואפילו…
דעל ידי מלאכתו יהא טרוד ומתבטל מאבלותו וישכח רישו…

Bach, Yoreh Deah, 380:3 v’afilu
Through the engagement in melacha he will become overburdened and ignore his observance of mourning and forget his lowliness.

These three slightly different approaches to the reason for the prohibition of melacha are trying to communicate one core idea. The mourner is meant to be given both the physical and mental space to focus their attention on the emotional and religious experience of the loss.

The notion that the mourner deserves their own time to think seems like such an obvious goal that one wonders why it needs even to be stated2. Part of the message of all of these specific Halakhot is that, while the goals of mourning are sometimes obvious and intuitive, how one quantifies particular behaviors to help evoke those experiences is not simple, obvious or identical for every person.

The Halakhic system gives directions and sets up limitations in many areas of our lives. I feel fundamentally claimed by the external authority of Halakha. And, at the very same time, I seek to make meaning out of the complex network of details that drive the Halakhic life. It is often the case that at a time of loss people crave rules. The rabbinic system can offer a great comfort to people who may feel that they have lost their way. The laws of Aveilut are an area of Halakha in which the meaning and explanations of the particular details often reflect a wider concern or value.

In our next installment, we will address one particular detail about the nature of the prohibition of melacha.

 

Introduction to the Prohibitions of the Mourner (3) – Moed Katan 21a

Introduction to the Prohibitions of the Mourner (3) – Moed Katan 21a

The Bavli in Moed Katan preserves one more list of behaviors that are prohibited to the mourner. This list contains some of what appeared in the extended sugya on 14b-16a.

תלמוד בבלי מסכת מועד קטן דף כא עמוד א

תנו רבנן אלו דברים שאבל אסור בהן: אסור במלאכה וברחיצה ובסיכה ובתשמיש המטה ובנעילת הסנדל ואסור לקרות בתורה ובנביאים ובכתובים ולשנות במשנה במדרש ובהלכות ובתלמוד ובאגדות.

Bavli, Moed Katan 21a

Our Rabbis have taught: These are the behaviors that are prohibited to the mourner – [the mourner is] prohibited in melacha (work), washing, anointing, sexual intimacy, wearing leather shoes, and is prohibited from reading in the Torah, the Nevi’im and the Ketuvim, [and is prohibited from] learning in the Mishna, Midrash, Laws, in the Talmud and the Agadot1. 

What distinguishes this list of five (or six) prohibitions from the lengthy analysis on 14b-16a? 

First, this list directly parallels the dinim of Yom Kippur2and Tisha b’Av3. Linking the experience of private mourning to that of national mourning (Tisha b’Av) is a powerful reminder that no one ever mourns alone. By paralleling Yom Kippur we again have an echo of the idea that mourning and loss come as the result of sin which demands atonement and repentance. 

Second, Tosafot4on the page (s.v. elu devarim) claim that this list only contains actions from which the mourner is prohibited as opposed to behaviors that must be done.

The connection between the experience of mourning and Yom Kippur / Tisha b’Av is evocative. The prohibitions on Yom Kippur are called עינוים, innuyim refer to behaviors that are meant to make us feel physical discomfort. One of the more complex Halakhic questions that we are going to have to address is to what extent, if at all, those same behaviors during aveilut are meant to cause physical discomfort to the mourner. Is the point of mourning to give a structure to the expression of grief or to experience innuy? We will continue to return to this distinction as we work through some of the individual behaviors.

Note: This was written before we began sheltering in our homes. One of the core prohibitions during the week of shivva forbids leaving our home. In this difficult time, as many are sitting shivva for their loved ones, we are all struggling at home and praying for healing.

Introduction to the Prohibitions of the Mourner (2) – Moed Katan 14b to 16a, summary

Introduction to the Prohibitions of the Mourner (2) – Moed Katan 14b to 16a, summary

The gemara in Moed Katan (from 14b until 16a) addresses fourteen different behaviors that are either required or forbidden by a mourner: observance during a Holiday, haircuts, head-covering, wearing Tefillin, greeting, learning Torah, laundry, tearing garments, over-turning the bed, work, washing, wearing leather shoes, sexual intercourse and sending sacrifices to the Beit ha-Mikdash. The sugya is confident about the rules relating to the mourner and quotes a verse (or one berayta) to prove the rule. After clarifying the rule for a mourner, the sugya then seeks to understand how that same rule does or does not apply to one who has been excommunicated and a person with tzara’at1.

Here is an example of that structure:

תלמוד בבלי מסכת מועד קטן דף יד עמוד ב

אבל אסור בתספורת מדקאמר להו רחמנא לבני אהרן (ויקרא י:ו) רָאשֵׁיכֶם אַל תִּפְרָעוּ  

מכלל דכולי עלמא אסור (דף טו עמוד א). 

מנודין ומצורעין מה הן בתספורת? 

תא שמע מנודין ומצורעין אסורין לספר ולכבס…

Bavli, Moed Katan, 14b

A mourner is prohibited from cutting their hair, as the merciful one taught in the Torah to the children of Aharon, “Do not bare your heads” (Vayikra 10:6) –

from this we learn that everyone else is prohibited from cutting their hair.

Those who have been excommunicated and those with tzara’at – what is their rule regarding haircuts?

Come and hear: Those who have been excommunicated and those with tzara’at are prohibited from cutting their hair… …

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Introduction to the Prohibitions of the Mourner (1) – Moed Katan 14b to 16a

Introduction to the Prohibitions of the Mourner (1) – Moed Katan 14b to 16a

We are now going to begin a lengthy series that addresses the various behaviors that a mourner may not engage in during shivva, shloshim and the 12 months. In some ways, this is the bread and butter of Hilkhot Aveilut, as many mourners’ questions  involve these topics. As we will see, some of these prohibitions feel intuitive to us today while others speak less readily to the 21st century mourner.

I also want to emphasize the following point: people in Yeshivot often think about the laws of Aveilut as based heavily on minhag. While a few areas are, in fact, driven by long standing communal practice – particularly around matters relating to davening – the vast majority of this material functions as normative Rabbinic law.

Despite the fact one siman asks which aspects of Aveilut are from the Torah and which from the Rabbis, most of these laws are understood to be Rabbinic, with a few exceptions.  However, there does appear to be more flexibility in the laws of Aveilut than we might typically expect to find. Nonetheless, we should not read that flexibility as meaning that these are “just” minhagim;  instead, that flexibility reflects the Rabbinic understanding that these laws are meant to express and respond to a deep human need.  …

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Onen (אונן) Between Death and Burial (04) – Understanding the Apparent Contradiction of the Shulchan Aruch

Onen (אונן) Between Death and Burial (04) – Understanding the Apparent Contradiction of the Shulchan Aruch

Let us briefly review the three approaches to the nature of the exemption of the onen that are found in the Shulchan Aruch.

1) In Orach Chayyim 71:1, Rav Yosef Karo says that the onen is exempt and prohibited when directly involved with burial preparations. However, if there are people to care for the physical needs, we do not stop the onen from performing Mitzvot (“exempt but permitted”). This is the approach of R. Yitzchak quoted in Tosafot on the page (Berachot 23b s.v. v’ein mevarvhin alav and Or Zarua Section 2, Hilkhot Aveilut siman 417) as well as referred to by the Rosh (Berachot 3:1 & Moed Katan 3:54).

2) The first position brought anonymously in Yoreh Deah 341:1 is that the onen is exempt from all positive Mitzvot but is permitted to perform them. This is the opinion of Rashi (Berachot 17b s.v. vi-ein mevarech) and Rambam (Rambam Hilkhot Avel 4:6 and Hilkhot Kriyat Shema 4:7).

3) The second approach in Yoreh Deah 341:1, introduced with the phrase “יש אומרים – some say”, is that the onen is exempt and prohibited from performing all positive Mitzvot. This is the majority position of Tosafot (Berachot 17b s.v. vi-ein mevarech), Ra”ah (Berachot 16b s.v. mi she-meito mutal) Rosh (Berachot 3:1) and Talmidei Rabbeinu Yona (Rif, Berachot page 10b).  …

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Onen (אונן) Between Death and Burial (03) – Unpacking the Shulchan Aruch

Onen (אונן) Between Death and Burial (03) – Unpacking the Shulchan Aruch

We are faced with a complex passage of the Yerushalmi and a three way debate of the Medieval commentators regarding how to understand the exemption of the onen – exempt but permitted (פטור ומותר – Rashi & Rambam), exempt and prohibited (פטור ואסור – Tosafot, Ra”ah, Rosh, Rabbeinu Yona, based on the Yerushalmi) or it depends on the situation (R. Yitzchak, Rosh). Let’s see if we can make sense of two seifim of the Shulchan Aruch – one in the laws of mourning and one in the laws of Shema. 

Here is how Rabbi Yosef Karo codifies this law in the context of the laws of mourning:

Shulchan Aruch, Yoreh Deah, Hil. Aveilut 351:1

[A] And the [onen] is exempt from all the [positive] Mitzvot of the Torah. 

[B] And even if he does not need to be involved with the needs of the one who passed because there are others who will take care of those needs [he is exempt]. 

[C] And some people say that even if the onen wanted to be stringent on him or herself and make blessings or answer amen after the blessings of another, he is not permitted.

[D] (and see Orach Chayyim siman 71).

שולחן ערוך יורה דעה הלכות אבילות סימן שמא סעיף א

[א] ופטור מכל מצות האמורות בתורה. 

[ב] ואפילו אם אינו צריך לעסוק בצרכי המת, כגון שיש לו אחרים שעוסקים בשבילו. 

[ג] וי”א שאפילו אם ירצה להחמיר על עצמו לברך או לענות אמן אחר המברכין, אינו רשאי 

[ד] (ועיין בא”ח סי’ ע”א). 

In section [C], Rav Yosef Karo clearly refers to the position that the onen is exempt and forbidden from positive Mitzvot (Tosafot). When we read section [B] in light of section [C], it appears that the first anonymous position is that of Rashi and Rambam: that the onen is exempt and also permitted to fulfill positive commandments. This approach understands exemption and permission to apply whether or not the onen is required to be physically involved with the needs of one who has passed. To be clear, the implication of this reading is that even if the onen has no one to assist with the needs of the one who has passed, they are still permitted to fulfill Mitzvot if they are interested in doing so. …

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Onen (אונן) Between Death and Burial (02) – The Yerushalmi that Drives the Halakhic Discourse

Onen (אונן) Between Death and Burial (02) – The Yerushalmi that Drives the Halakhic Discourse

There are times when a specific passage in the Talmud Yerushalmi gets pulled into the flow of Halakha and sets the tone for the subsequent discourse. In the case of the onen there is a powerful sugya from the Yerushalmi that is brought by the Tosafot1and ultimately defines the parameters of the Halakhic conversation. Because of the importance of this text, we will analyze it piece by piece.

We begin with a simple drasha that removes the onen from the category of Mitzvot:

תלמוד ירושלמי (וילנא) מסכת ברכות פרק ג

א”ר בון כתיב לְמַעַן תִּזְכֹּר אֶת יוֹם צֵאתְךָ מֵאֶרֶץ מִצְרַיִם כֹּל יְמֵי חַיֶּיךָ (דברים טז:ג) 

ימים שאת עוסק בהן בחיים ולא ימים שאת עוסק בהן במתים.

Yerushalmi, Berachot 3

Rebbi said, “It is written in order that you remember the day of the Exodus from Egypt all the days of your life (Devarim 16:3) –

Days when you are involved with life, and not days in which you are involved with death.

This Midrash makes a blanket statement that only days that are filled with life are meant to be days of Mitzvot. However, days in which a person is, “עוסק בהן במתים – involved with those who are dead” are simply not days to do Mitzvot. This is a strong statement about the nature of a life imbued with Mitzvot.   …

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Onen (אונן) Between Death and Burial (01) – Exempt and Permitted or Exempt and Forbidden?

Onen (אונן) Between Death and Burial (01) – Exempt and Permitted or Exempt and Forbidden?

The category known as the Onen (אונן) describes the mourner between the time of passing and burial. This word actually refers to a Biblical verse1that is recited by Israelite pilgrims to the Beit ha-Mikdash when bringing their ma’aser to the Temple. This verse is used to teach us that an Onen may not eat kodshim (the holy food of the Temple)2. 

The correct phrase that describes a person between the passing and burial of a loved one today – when sadly we no longer have the Beit ha-Mikdash – is מיתו מוטל לפניו (lit. The dead person is lying  before him). This is how the third chapter of the Mishna of Berachot opens:

מסכת ברכות פרק ג משנה א (דף יז:)

מי שמתו מוטל לפניו פטור מק”ש ומן התפלה ומן התפילין ומכל מצות האמורות בתורה

Mishna, Berachot 3:1 (17b)

One whose dead lies before them is exempt from the reading of the Shema, from Tefila and from Tefilin and from all [positive] commandments recorded in the Torah. …

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Tearing Garments (קריעה) – what is the level of obligation?

Tearing Garments (קריעה) – what is the level of obligation?

Is the obligation to tear kriyah from the Torah or from the Rabbis?

Rav Taḥlifa bar Avimi said that Shmuel said: A mourner who did not let his hair grow wild and did not rend his garments is liable to receive the death penalty as it is stated following the deaths of Nadab and Abihu concerning the surviving sons of Aaron: “Let not the hair of your heads go loose, neither rend your clothes, that you not die” (Leviticus 10:6). From here it may be deduced that any other mourner who did not let his hair grow wild or rend his clothes is liable to receive the death penalty.

תלמוד בבלי מסכת מועד קטן דף כד עמוד א

אמר רב תחליפא בר אבימי אמר שמואל אבל שלא פרע ושלא פירם חייב מיתה 

שנאמר ראשיכם אל תפרעו ובגדיכם לא תפרמו ולא תמתו וגו’ 

הא אחר שלא פרע ושלא פירם חייב מיתה 

This text states clearly that the failure to tear kriya is a capital crime based on a Biblical verse. One might think that, therefore, the obligation itself should be understood as a Torah obligation. It is interesting to note that there is only one rishon who claims that the obligation of kriya comes from the Torah. The overwhelming majority understand citation of the verse and the harsh language as an asmachta (a hint from the Torah for a Rabbinic law).

The Rosh (מו”ק פ”ג ס”ג) quotes the Ra’avad who is a minority voice and thinks that the requirement to tear is in fact from the Torah. The minority here promotes the simplest reading of the Talmudic text to support his approach1. Despite that fact, it appears that everyone else rejects this approach. The Tosafot on the page (Moed Katan 24a s.v. ha acher shelo para) as well as Ramban (Torat ha-Adam page 81), the Tur (as explained by the Beit Yosef 340:30, regarding the death of an infant before 30 days לא עלינו), the Shulcah Aruch (Siman 340, as understood by the ש”ך ס”ק ב and the ט”ז ס”ק י”ז), the Aruch ha-Shulchan (340:1), and Rav Ovadia (חזון עובדיה ח”א עמ’ רכ) all assume that the obligation to tear kriya is rabbinic and not from the Torah.

At some level, this question is part of a more global issue regarding which aspects, if any, of the mourning process are from the Torah. I am curious about the implications of both approaches. To claim that (almost) none of the laws of aveilut (including kriya) are from the Torah reflects something about how we imagine the Bible legislates our lives. Perhaps those who claim that nearly all of the laws of aveilut are fundamentally rabbinic are really saying something about Rabbinic creativity. There is a complex network of laws covering some 63 simanim of the Shulchan Aruch. The Rabbis understood that the passing from this world to the next is a time that people seek direction and ritual.

From the perspective of the majority position that kriya is rabbinic, the Torah (meaning: God) does not make (many) demands of the mourner. The rabbis stepped in and saw a need to create a structure and framework for the mourning experience despite the Torah’s silence. The Ra’avad and those who see more pieces of aveilut as coming from divine authority are perhaps claiming that we cannot imagine that God would not give us direction at this most difficult time of our lives.

Many are comforted by the dictates of Halakha when they face loss. Others feel as though God is intruding into their inner emotional state in a way that can feel uncomfortable. The efficacy of these Halakhot will be different for everyone. Finding the right balance between guidance and strict rulings is a key role of the rabbinic figure for individuals and families experiencing loss and mourning.