Jewish Religious Law Does Not Forbid Archaeological Excavations, Even of Graves, Says Prominent Talmudic Scholar

041

“For the sake of Zion, I will not be silent,” said Ephraim Urbach, chairman of the Jewish affairs section of the Israel Academy of Sciences and Humanities, professor at Hebrew University, and one of Israel’s preeminent talmudists, quoting Isaiah 62:1. Writing in the Hebrew language newspaper Ma’ariv, Professor Urbach delivered a scathing attack on Israel’s Chief Rabbi, Shlomo Goren, for the latter’s spurious use of Jewish religious law to interfere in the excavations at the City of David.

“The archaeologists dug at the City of David for three years and no one opened his mouth,” Professor Urbach began. Professor Urbach also accused Rabbi Goren of continuously making “a string of contradictory accusations, surprising halachic decisions (i.e., Jewish religious-legal decisions), and shocking proclamations.”

“Because some people at first claimed that the City of David contained only the graves of the Davidic kings and the prophetess Hulda [and not a medieval cemetery], Rabbi Goren claimed that [the site of the dig] was not the City of David.¹ However, several days later he changed his mind. Trembling, Rabbi Goren shared a thought which, he said, caused him sleep less nights—’Perhaps they will find the graves of the kings or even David’s tomb.’ When asked by an interviewer, ‘Isn’t it accepted that David’s tomb is on Mt. Zion?’ Rabbi Goren smiled and answered that he has never accepted that view.”

“To prove that the excavation site is really a cemetery,” Professor Urbach continued, “Rabbi Goren claims that he went to the site unobserved one night (the first miracle in the affair), and found bones there. Afterward when a television reporter asked the Chief Sephardi Rabbi, Ovadiah Yosef, why the matter was being brought before the Rabbinical Council, inasmuch as Rabbi Goren had already declared the site a cemetery, Rabbi Yosef replied, ‘It is always possible to reevaluate and then to rescind a decision.’ Standing beside Rabbi Yosef, Rabbi Goren added with a smile, ‘I only said 97%.’”

Professor Urbach posed a question of procedure: because of his pre-trial claims and proclamations, could Rabbi Goren sit on the Rabbinical Council that decided the matter? Is Rabbi Goren capable of “judging without regard to his previous views?” Professor Urbach asked, quoting the Talmud (Babylonian Talmud, Shebuot 30b).

Professor Urbach stressed that the question of whether the site is a cemetery or not should be decided not by rabbis, but by archaeologists, who are the experts in the matter. Professor Urbach drew an analogy to the case in which the rabbis must decide whether or not a patient’s life is sufficiently endangered to justify the desecration of the Sabbath or the Day of Atonement. “To determine the facts,” Professor Urbach said, “we ask a doctor, not a rabbi, and only then does the rabbi make his decision. In the same way, we should ask the experts—the archaeologists—if a cemetery exists in the City of David. We have yet to hear” he added, “that Rabbi Goren is a student of the 042topography, geography, or history of Jerusalem.”

Professor Urbach then put the facts aside and assumed for purposes of argument that Rabbi Goren was correct—there is a cemetery on the site. This would be no bar to archaeological excavations, Professor Urbach concluded, citing several rulings from ancient as well as more modern Jewish sources.

One such ruling, known as a Baraita (Eduyot 3:12) is as follows:

“Bones were once found in a wood storehouse in Jerusalem, and the rabbis wanted to declare all of Jerusalem impure. Rabbi Joshua said to them: It would be shameful and an embarrassment to declare our houses impure! Where are the victims of the flood [from Noah’s time], where are Nebuchadnezzer’s victims [in the destruction of Jerusalem] where are all those who died until now in the war [implying that we cannot tell where their bones are; they might be under our houses]. The rabbis answered [changing their mind]: Where there is certainty, [the site is] impure, but if it is uncertain [that there is a cemetery there], it remains pure.”

“Is it so certain,” Professor Urbach asks, “that there was a graveyard or burial area in the City of David?” If it is not certain, the cited ruling would indicate it is permissible to conduct archaeological excavations there.

Professor Urbach also cited rulings which reflect the ancient rabbis’ efforts to avoid declaring an area a graveyard. even if it means straining the facts. The following ruling is from the Tosephta (Oholot 15):

“Rabbi Yeshovav once checked and discovered two old graves and one fresh grave and wanted to declare it a burial area. Rabbi Akiva told him ‘All of your efforts are in vain, for a burial area must contain three old or three fresh graves.’”

Said Professor Urbach, Rabbi Goren should have told the ultra-orthodox demonstrators at the City of David what Rabbi Akiva said in this ancient ruling, “All your efforts are in vain.” Rabbi Goren, said Professor Urbach, should have followed the ancient rabbis, of whom it is said (Tosephta Eduyot), “They found a pretext and declared the land of Israel pure.”

Not only should the excavation not be stopped, said Professor Urbach, it is, moreover, an act of respect for the dead, if there are any buried there, to continue it. It is necessary to clear out this heap of garbage and the surrounding area in which Rabbi Goren supposedly found graves.

Professor Urbach quoted another ancient ruling by Rabbi Yitzchak in Or Zarua:

“Where a corpse is not preserved by the grave, or where we suspect that non-Jews might remove the body or that it is possible that water might seep into the grave … it is certainly meritorious to clear the corpse out to avoid sorrow to and desecration of the dead.”

In short, excavation of the site is consistent with the religious precept to respect the remains of the dead. “It is even possible,” stated Professor Urbach, “that the rabbinate should have ordered digging at the site in order to discover graves and clear them away.”

In support of this suggestion, Professor Urbach cited a responsum of a rabbi who was commonly referred to by the acronym RaDBaZ (II, 611):

“It is clear that anything for the good of the deceased is not considered as humiliating him, because it is in his honor, as seen from Tractate Shekalim [of the Talmud] where it is stated that Rabbi Meir said that all of the utensils found in Jerusalem on the path toward the ritual immersion bath are impure … Rabbi Jose, however, says that they are all pure except for the basket, the spade and crusher that are used only for burials. The crusher is a vessel used to crush and break the bones of the 043deceased so they will fit into a basket to transport them.”

“This indicates,” said Professor Urbach, “that it was permitted to crush bones in order to move them about. We may assume that this was done to honor the deceased, to bury him near other family members. We further learn from the Mishnah that if the bones of many people are mixed together it is still permissible to crush them (so long as the spade used to move them is set aside for this purpose only) because the purpose is to honor the dead.”

Professor Urbach noted that Rabbi Goren has referred to halachic rulings only three times, “each reference more shocking than the last.”

“Initially, when Rabbi Goren claimed that the site was not the City of David, he brought proof from the response of the Maharit. This responsum proved exactly the opposite of Rabbi Goren’s claim. The second time, Rabbi Goren claimed over the radio that he had found a passage in the Jerusalem Talmud stating that it would he permissible to excavate in the area only on condition that the site is declared a cemetery and put under the jurisdiction of the rabbinate. It remains to be understood what the connection is between the authority of the Jerusalem Talmud and the condition Rabbi Goren insists on. Finally, the decision of the rabbinate. declaring the entire slope of the City of David off limits to archaeologists, is without any textual backing.”

Contrary to Rabbi Goren’s ruling forbidding excavation is the ruling of the great Polish rabbi of Butchach:

“In graveyards where you find corpses that have been buried for several hundred years (and you might suspect that it is forbidden to dig further), we do not automatically assume that more corpses will be found at another place, even if it is adjacent and even though often a whole area is a graveyard. In any case, the prohibition of digging up graves is not biblical, and one should be lenient, since finding bones in one place does not automatically imply that they will be found elsewhere.” (Da’at Qedoshim)

Professor Urbach accused Rabbi Goren of ignoring the statement of Rabbi Judah in the Palestinian Talmud, Hagigah:

“Just as it is forbidden to declare the impure pure, so it is forbidden to declare the pure impure.”

At one point, Rabbi Goren disclosed that he had had a dream in which the “Chazon Ish” told him to take up a more extreme position. “Perhaps Rabbi Goren’s dream” said Professor Urbach, “will reveal something about the mysteries of Rabbi Goren’s psyche.”

Professor Urbach went on: “I am not competent either at interpreting dreams in psychoanalysis. But the halachah (religious law) tells us (Tosephta Ma’aser Shen 5, Sanhedrin 71, Gitin 52a) that ‘Dreams are of no consequence.’ Rabbi Goren may believe in his dreams, but he may not issue an injunction against those who do not accept the Rabbi’s authority.”

Professors Urbach commended to Rabbi Goren a ruling of Maimonides (on the law of Mamrim, 2:5):

“If a rabbinic court promulgates a decree on the assumption that the majority of the community will observe it, but after the decree’s promulgation the community disputes it, and it is not accepted by the majority, the decree is null and void and it may not be forced upon the people.”

Professor Urbach concludes: “If it is too difficult for Rabbi Goren to overcome his dreams and his natural inclinations, he should step down from his position as Chief Rabbi.”