Mishneh Torah, Mourning 1

Hook

This passage from Maimonides' Mishneh Torah, specifically Hilchot Aveilut (Laws of Mourning), plunges us into a profound tension that resonates deeply with the modern Zionist project and the very fabric of Israeli society. It grapples with the definition of life, loss, and belonging, asking: who counts as a person for whom we mourn, and by extension, who is considered part of our collective? This ancient text, concerned with the precise boundaries of Jewish ritual law, unexpectedly illuminates our contemporary dilemmas about national identity, inclusion, and the sorrow that binds or divides a people. The very act of mourning, a universal human experience, becomes here a site of intricate legal and ethical deliberation, revealing differing perspectives on what it means to be a member of the covenantal community, and by extension, a citizen of a modern state. How do we navigate the grief of loss when the very definition of who is "lost" is contested? This is the hopeful, yet challenging, question Maimonides implicitly poses, one that the State of Israel, born from a yearning for collective self-determination and grappling with its diverse population, must continually confront.

Text Snapshot

"It is a positive commandment to mourn for one's close relatives, as implied by Leviticus 10:19: 'Were I to partake of a sin offering today, would it find favor in God's eyes?' According to Scriptural Law, the obligation to mourn is only on the first day which is the day of the person's death and burial. The remainder of the seven days of mourning are not required by Scriptural Law. Although the Torah states Genesis 50:10: 'And he instituted mourning for his father for seven days,' when the Torah was given, the laws were renewed. Moses our teacher ordained for the Jewish people the seven days of mourning and the seven days of wedding celebrations."

"We do not mourn for stillborn infants. Whenever a human offspring does not live for 30 days, he is considered stillborn. ... We observe mourning rites for all of those executed by the government, even when they were executed by the government's laws and the Torah granted it license to execute them. We don't withhold anything from them. Their estate is given to the government, but they are buried in their ancestral plots. We do not, by contrast, observe mourning rites for those executed by the court. We do, however, observe the rites of bitter regret (aninut), for aninut is an expression of the feelings in one's heart. ... Similarly, we do not mourn for heretics, apostates, and people who inform on Jews to the gentiles. Instead, their brothers and their other relatives wear white clothes, robe themselves in white, eat, drink, and celebrate for the enemies of the Holy One, blessed be He, have perished."

Context

The Mishneh Torah, compiled by Rabbi Moses ben Maimon (Maimonides) between 1170 and 1180 CE in Fes, Morocco, stands as a monumental achievement in Jewish legal and philosophical literature. It aimed to systematically organize and codify the entirety of Jewish law (Halakha) derived from the Talmud and other rabbinic sources, presenting it in a clear, logical, and accessible manner. This work was revolutionary not only for its comprehensiveness but also for its philosophical underpinnings, seeking to reconcile Jewish law with Aristotelian philosophy and rationalist thought. Maimonides, a physician and philosopher, sought to provide a framework for Jewish life that was both deeply rooted in tradition and responsive to the intellectual currents of his time.

The specific section on mourning (Avei'lut) in Hilchot De'ot (Laws of Ethical Dispositions) and Hilchot Avei'lut addresses the intricate laws and customs surrounding death and grief within Jewish tradition. It delves into the obligations of mourners, the duration of mourning periods, and the specific practices associated with them. This section is not merely a technical legal document; it reflects a profound understanding of human psychology, community responsibility, and the spiritual significance of navigating loss. Maimonides' meticulous categorization and clear articulation of these laws were intended to provide clarity and guidance to Jewish communities across the diaspora, ensuring the continuity of Jewish practice and identity in a world often fraught with instability and external pressures.

The laws of mourning, as outlined by Maimonides, are deeply interwoven with concepts of Klal Yisrael (the Jewish people as a collective) and Kiddush Hashem (sanctification of God's Name). The way an individual mourns, and how the community responds, reflects the community's understanding of its shared fate, its relationship with the Divine, and its moral obligations. The distinctions Maimonides draws – between Scriptural law and Rabbinic ordinance, between different categories of death and the deceased – highlight the complex moral calculus involved in communal grief. These distinctions have evolved over centuries, but the underlying principle remains: mourning is not just a private act of sorrow, but a public declaration of shared values, communal bonds, and a collective memory.

Two Readings

Reading 1: The Covenantal Community and the Boundaries of Belonging

This reading frames the Mishneh Torah's discourse on mourning through the lens of the covenantal community, viewing Jewish identity and belonging as defined by a shared commitment to mitzvot (commandments) and an allegiance to the collective destiny of Israel. From this perspective, Maimonides' distinctions are not merely legalistic quibbles but profound statements about who is considered an integral part of the covenantal fabric, and therefore, who merits communal grief.

The core of this reading lies in the concept of Klal Yisrael, the indivisible unity of the Jewish people, bound together by a sacred pact with God. Mourning, in this context, is an expression of solidarity, a visceral acknowledgment of loss that reverberates through the entire community. When Maimonides states, "We do not mourn for stillborn infants. Whenever a human offspring does not live for 30 days, he is considered stillborn," he is not being callous, but articulating a traditional understanding of life's threshold for communal recognition. The emphasis is on the established presence within the covenantal community. Similarly, the exclusion of mourners for those who have "deviated from the path of the community," who "throw off the yoke of the mitzvot," or who are "heretics, apostates, and people who inform on Jews," signifies a clear demarcation of boundaries. These individuals, by their actions, are perceived as having severed their organic connection to the covenantal body. Their deaths are not mourned by the community because they have, in a sense, already separated themselves from it. The celebratory response described for the death of informers ("their brothers and their other relatives wear white clothes, robe themselves in white, eat, drink, and celebrate for the enemies of the Holy One, blessed be He, have perished") underscores this severe rupture. It's a grim testament to the perceived betrayal and the communal relief at the removal of a threat to the collective's spiritual and physical integrity.

This perspective also sheds light on the differential treatment of those executed by gentile authorities versus those executed by a Jewish court. The text states, "We observe mourning rites for all of those executed by the government, even when they were executed by the government's laws and the Torah granted it license to execute them." This is because their death, even if legally sanctioned by external powers, is seen as a tragedy befalling a member of Klal Yisrael at the hands of an oppressor. The community grieves the loss of one of its own, irrespective of the circumstances of their demise, as long as they were not actively rebelling against the covenant themselves. However, for those executed by a Jewish court, the situation is different. While the text says, "We do not, by contrast, observe mourning rites for those executed by the court. We do, however, observe the rites of bitter regret (aninut)," this signifies a complex acknowledgment. Their death, though a legal outcome within Jewish law, is not met with communal mourning because it represents a failure within the covenant itself. The community may feel regret, but the formal mourning rites are reserved for losses that reinforce, rather than fracture, the communal bond.

The concept of aninut, the period of bitter regret before burial, is crucial here. It’s an internal, deeply personal state of sorrow that transcends formal communal mourning. This distinction allows for the acknowledgment of personal grief without necessarily extending communal mourning to individuals whose actions have, in the community's estimation, placed them outside the circle of communal solidarity. This reading emphasizes that the boundaries of mourning are not arbitrary but are tied to the very definition of who constitutes the "us" within the covenant. It speaks to a powerful sense of collective responsibility and identity, where the integrity of the community's spiritual and moral standing is paramount, even in the face of individual tragedy.

This covenantal understanding has profound implications for modern Israel. It raises questions about how the state defines its citizens, particularly minority populations or those who may not adhere to traditional religious norms. If the Jewish people are seen as a covenantal community, then the inclusion or exclusion from communal mourning can become a metaphor for inclusion or exclusion from national belonging. The state, in this view, has a responsibility to uphold the integrity of the collective, and this may involve drawing lines, however painful, about who shares in the collective grief and who does not. The hope here is that by understanding these traditional boundaries, we can engage in a more conscious and ethical approach to defining belonging in a pluralistic society, ensuring that no one is irrevocably cast out from the possibility of shared humanity and remembrance.

Reading 2: The Universal Human Condition and the Ethics of Compassion

This second reading, while acknowledging the traditional framework, shifts the focus from the covenantal community to the universal human experience of loss and the ethical imperative of compassion. It interprets Maimonides' distinctions not as rigid demarcations of belonging, but as practical guidelines that, when understood with empathy, can illuminate the enduring principles of human dignity and the ethical responsibilities we owe to one another, even in their absence.

From this perspective, the very act of mourning, regardless of religious affiliation or adherence to specific commandments, is a fundamental human response to death. It is an acknowledgment of the void left by a departed soul, a recognition of shared humanity. Maimonides' detailed legalistic approach, while rooted in Jewish law, can be seen as an attempt to give structure and meaning to this universal human experience, ensuring that grief is processed in a way that upholds dignity and community. The exclusion of mourning for certain categories of individuals, therefore, can be re-examined not as a judgment on their ultimate spiritual standing, but as a pragmatic or communal decision rooted in specific historical contexts and perceived threats to the collective.

Consider the case of stillborn infants. The rule that "Whenever a human offspring does not live for 30 days, he is considered stillborn" and that "We do not mourn for stillborn infants" can be understood not as a denial of parental grief, but as a cultural understanding that life's viability and the establishment of a recognized presence within the community had certain thresholds. Modern sensibilities, informed by advancements in neonatal care and a broader understanding of human development, might find this rule difficult. However, the underlying principle is about the community's capacity to absorb and formally recognize loss. This reading encourages us to look beyond the strict letter of the law to the ethical spirit it aims to uphold: the importance of acknowledging and supporting those who are grieving, even if the formal structures of mourning are different.

The complex situation of those executed by gentile authorities versus those executed by a Jewish court offers another point of ethical reflection. While the former are mourned by the community, the latter are not, with only aninut. This distinction, from a universalist ethical standpoint, highlights the tragic circumstances of state-sanctioned violence. The mourning for those executed by gentile authorities underscores a shared vulnerability of the Jewish people to external oppression. The absence of formal mourning for those executed by a Jewish court, while seemingly harsh, can be reinterpreted as an internal reckoning. It acknowledges a profound internal failure within the community's legal system, a tragedy that demands introspection rather than outward communal grief. The "bitter regret" (aninut) becomes a powerful symbol of this internal sorrow and the ongoing ethical responsibility to ensure justice and fairness within the community.

The most challenging aspect for this reading is the absolute refusal to mourn for "heretics, apostates, and people who inform on Jews." The jubilation described is particularly stark. However, even here, a universalist ethical lens can seek to understand the extreme measures taken by a persecuted minority to protect its integrity. While condoning such joy is difficult, recognizing the existential threat these individuals posed to the survival and identity of the Jewish people in hostile environments can provide context. This reading would advocate for a more compassionate approach today, emphasizing reconciliation and understanding over celebration of an enemy's demise, even for those who have caused immense harm. The focus shifts to the responsibility of the living to learn from past divisions and to forge a path towards healing and mutual respect, rather than perpetuating cycles of animosity.

In the context of modern Israel, this reading encourages a move beyond rigid definitions of belonging. It champions the idea that every human life has intrinsic value, and that the state has an ethical obligation to extend compassion and dignity to all its residents, regardless of their religious observance or political views. The act of mourning, or the absence thereof, becomes a powerful indicator of a society's ethical maturity. A society that can mourn its own internal failures, that can extend empathy even to those on its fringes, and that prioritizes human dignity above all else, is a society that is truly hopeful and future-minded. This reading calls for a broader definition of shared humanity, one that can encompass the complexities of a diverse population and foster a sense of collective responsibility rooted in universal ethical principles.

Civic Move

Building Bridges Through Shared Grief: The "Lest We Forget" Initiative

The Dilemma: The Mishneh Torah's intricate distinctions regarding who merits communal mourning, while rooted in ancient covenantal understandings, present a challenge to modern pluralistic societies, particularly Israel, where diverse populations grapple with shared and individual experiences of loss. The potential for exclusion, for drawing lines that deepen divisions, is ever-present. The hope lies in finding ways to acknowledge profound loss in a manner that fosters unity and understanding, rather than perpetuating alienation.

The Civic Move: To address this tension, we propose the establishment of a national initiative, tentatively titled "Lest We Forget: Honoring Every Loss." This initiative would not seek to override or replace existing mourning traditions but to create parallel, inclusive spaces for communal remembrance and dialogue that acknowledge the pain of all who have experienced loss within the Israeli context, irrespective of their background or the specific circumstances of the death.

Core Principles:

• Universality of Grief: Recognizing that grief is a fundamental human experience that transcends religious, ethnic, or political divides.
• Dignity in Remembrance: Affirming that every life, no matter how marginalized or contested, deserves to be remembered with dignity.
• Dialogue and Understanding: Creating platforms for diverse communities to share their experiences of loss and to learn from one another.
• Focus on the Living: Emphasizing how collective remembrance can foster healing and strengthen the bonds of Israeli society.

Practical Steps:

1. Establish a National Council for Remembrance: This council would comprise representatives from diverse sectors of Israeli society: Jewish religious and secular leaders, Arab community leaders, Druze representatives, LGBTQ+ activists, human rights organizations, educators, artists, and bereaved families from various backgrounds. The council's mandate would be to guide the initiative and ensure its inclusivity.
2. Develop a National Day of Remembrance: Designate a specific day on the Israeli calendar (perhaps a day that already holds historical significance or a new, neutral date) dedicated to acknowledging all lives lost. This day would not be about commemorating specific historical events or conflicts but about the universal act of remembering.
3. Create Inclusive Memorial Spaces:
   • Digital Archive: A comprehensive online platform where individuals and communities can submit stories, photographs, and testimonies of loved ones who have passed away. This archive would be searchable and accessible to all, with options for privacy controls. It would include sections for:
     • Victims of terror (Jewish and Arab)
     • Soldiers and security personnel
     • Victims of accidents and natural disasters
     • Individuals who died by suicide
     • Stillborn infants and children lost in infancy
     • Victims of historical persecution (e.g., Holocaust survivors who passed away in Israel)
     • Marginalized communities whose losses may have been overlooked.
   • Physical Memorials: Explore the possibility of establishing neutral, reflective memorial sites in public spaces that honor all lives lost, without specific religious or political iconography, focusing on symbols of peace, hope, and continuity.
4. Facilitate Cross-Communal Dialogue Programs: Organize events, workshops, and educational programs that bring together individuals from different communities to share their experiences of loss and mourning. These programs could:
   • Bereaved Family Encounters: Facilitate structured meetings between families who have lost loved ones in different circumstances (e.g., a family who lost a child in a terror attack meeting a family who lost a child to illness, or an Arab family who lost a loved one in a security incident meeting a Jewish family who lost a soldier). The goal is not to equate suffering but to foster empathy and understanding.
   • Educational Curricula: Develop educational materials for schools that explore the universal themes of grief, loss, and remembrance, incorporating diverse narratives and perspectives.
   • Artistic and Cultural Initiatives: Support artistic projects (theater, film, literature, music) that explore themes of loss and remembrance from multiple viewpoints.
5. Partner with Existing Institutions: Collaborate with Yad Vashem, the IDF's fallen soldiers memorial, bereaved family organizations, religious councils, and community centers to integrate the initiative's principles into their existing work.

Potential Partners:

• Government Ministries: Ministry of Culture and Sport, Ministry of Education, Ministry of Social Equality.
• Religious Councils and Organizations: Chief Rabbinate, various Jewish denominations, Islamic Waqf, Christian denominations, Druze religious leadership.
• Civil Society Organizations: Human Rights organizations, peacebuilding NGOs, women's groups, LGBTQ+ advocacy groups, bereaved family associations.
• Academic Institutions: Universities and research centers focusing on sociology, history, psychology, and Jewish/Arab studies.
• Media Outlets: To promote awareness and encourage participation.

Examples of Similar Initiatives (and how "Lest We Forget" expands on them):

• Holocaust Memorials (e.g., Yad Vashem): While essential for remembering a specific, unique tragedy, "Lest We Forget" broadens the scope to include all forms of loss within the national context. It aims to create a sense of shared national mourning that encompasses all citizens.
• IDF Fallen Soldiers Memorialization: The yearly Memorial Day is a powerful example of communal grief for fallen soldiers. "Lest We Forget" would complement this by creating a framework to remember all who have died, acknowledging that loss is not confined to those who served in uniform.
• Interfaith Dialogue Initiatives: Existing interfaith dialogue often focuses on theological or social issues. "Lest We Forget" would use the universal experience of grief as a specific, deeply personal, and emotionally resonant platform for interfaith and intercultural engagement.
• Community Grief Support Groups: These are typically localized and focused on specific types of loss. "Lest We Forget" aims to nationalize and diversify this, creating a framework for recognizing and addressing the spectrum of loss experienced by the entire nation.

The Hopeful Outcome: By actively engaging with the difficult questions of who and how we mourn, "Lest We Forget" seeks to transform collective sorrow into a catalyst for empathy and a stronger sense of shared Israeli peoplehood. It envisions a society where the pain of loss, rather than becoming a wedge that divides, becomes a profound and unifying force, a testament to our shared humanity and our collective responsibility to remember and to heal. This initiative is an act of faith in the possibility of a more compassionate and inclusive future for Israel, built on the foundation of acknowledging every life that has touched this land.

Takeaway

The Mishneh Torah's detailed laws of mourning, born from ancient covenantal imperatives, reveal a profound truth: the way we mark death is deeply tied to how we define life and belonging. For us, in modern Israel, this ancient text offers not a rigid blueprint for exclusion, but a powerful invitation to introspection. It challenges us to consider who we include in our collective sorrow, and by extension, in our collective future. The hope is that by confronting these distinctions with honesty, compassion, and a commitment to universal human dignity, we can move towards a more inclusive understanding of peoplehood, where every life lost, no matter the circumstance, can find a place in our shared remembrance, strengthening the fabric of our society and illuminating a path toward greater unity and healing.