Mishneh Torah, Mourning 6

Sugya Map

• Issue: The halachic framework and underlying rationale for shloshim (30-day mourning period), distinguishing its practices and durations based on the deceased's relationship to the mourner.
• Nafka Mina(s):
  • Prohibited Practices: Specific prohibitions during shloshim (haircutting, freshly ironed clothes, marriage, celebratory gatherings, business trips) and their exact scope.
  • Parental Mourning: The unique stringencies and extended durations for mourning a father or mother, often extending beyond shloshim (e.g., se'udat mere'im, business, haircut until rebuke).
  • Gender Differences: The distinction between men and women regarding hair cutting during shloshim.
  • Exceptions & Leniencies: Permissibility of marriage within shloshim for the widower/widow under specific circumstances (e.g., lack of pru u'rvu, young children, need for attendant).
  • Calculations: The application of miktzas hayom k'kulo (a portion of the day is considered a full day) to conclude shloshim.
  • Unique Cases: The specific, severe prohibition for a mourner whose close relative was crucified (tzaluv).
• Primary Sources:
  • Devarim 21:13 ("וּבָכְתָה אֶת אָבִיהָ וְאֶת אִמָּהּ יֶרַח יָמִים" – yefat to'ar passage) as an asmachta (supportive textual allusion) for shloshim.
  • Mishneh Torah, Mourning 6.
  • Talmud Bavli Mo'ed Katan 22b.

Text Snapshot

The Rambam, in Mishneh Torah, Mourning 6, delineates the Rabbinic enactments of shloshim:

מִדִּבְרֵי סוֹפְרִים אָבֵל מֵשִׂים לִבּוֹ עַל מִקְצָת דִּבְרֵי אֲבֵלוּת שְׁלֹשִׁים יוֹם. מִנַּיִן לָנוּ שֶׁשָׂמוּ חֲכָמִים אֶת הַשְּׁלֹשִׁים? שֶׁהֲרֵי הוּא אוֹמֵר "וּבָכְתָה אֶת אָבִיהָ וְאֶת אִמָּהּ יֶרַח יָמִים" (דברים כא, יג), וְהוּא הַדִּין שֶׁכָּל אָבֵל מֵשִׂים לִבּוֹ לְצַעַר שְׁלֹשִׁים יוֹם. אֵלּוּ הֵן הַדְּבָרִים הָאֲסוּרִים לָאָבֵל כָּל שְׁלֹשִׁים יוֹם: לְגַלַּח וּלְכַבֵּס כְּסוּת מְגוֹהֶצֶת חֲדָשָׁה, וְלִישָׂא אִשָּׁה, וְלִכְנוֹס לִסְעוּדַת מֵרֵעִים, וְלִנְסוֹעַ לִסְחוֹרָה לְעִיר אַחֶרֶת, חֲמִשָּׁה דְּבָרִים.

According to Rabbinic Law [מִדִּבְרֵי סוֹפְרִים], a mourner should observe some of the mourning practices for 30 days. Which source did our Sages use as a support for the concept of 30 days? Deuteronomy 21:13 states: "And she shall cry for her father and mother for a month [יֶרַח יָמִים]." Implied is that a mourner will feel discomfort for a month. These are the practices forbidden to a mourner for the entire 30-day period. He is forbidden to cut his hair, to wear freshly ironed clothing, to marry, to enter a celebration of friends, and to go on a business trip to another city; five matters in all.

Mishneh Torah, Mourning 6:1

The opening phrase, "מִדִּבְרֵי סוֹפְרִים" (from the words of the Scribes), immediately flags shloshim as a Takanat Chazal (Rabbinic enactment), not a Torah-level obligation (de'oraita). Steinsaltz clarifies this simply as "מדברי חכמים" (from the words of the Sages) [Steinsaltz on Mishneh Torah, Mourning 6:1:1]. The asmachta from Devarim 21:13, concerning the yefat to'ar (beautiful captive woman), is noted by Steinsaltz as referring to "the passage of the beautiful captive woman taken after war" [Steinsaltz on Mishneh Torah, Mourning 6:1:2]. This choice of asmachta is itself a point of inquiry, as the Gemara offers alternatives.

A unique and stark halacha appears later in the chapter:

מִי שֶׁנִּצְלַב בַּעֲלוֹ אוֹ אִשְׁתּוֹ אוֹ אָבִיו אוֹ אִמּוֹ בָּעִיר, אָסוּר לוֹ לִשְׁכֹּן בְּאוֹתָהּ הָעִיר עַד שֶׁיִּכְלֶה הַבָּשָׂר.

When a person's husband, wife, father, or mother was crucified [צָלוּב] in a city, it is forbidden for him to dwell in that city until the flesh of the corpse decomposes.

Mishneh Torah, Mourning 6:11

Steinsaltz glosses "צָלוּב" as "תלוי" (hanged) [Steinsaltz on Mishneh Torah, Mourning 6:11:1]. The prohibition of dwelling in the city "until the flesh decomposes" is explained by the Kesef Mishneh (cited by Steinsaltz) as a matter of bizuy ha'mes (disgrace of the dead), while the Radbaz offers an alternative sevara of aveilus (mourning) [Steinsaltz on Mishneh Torah, Mourning 6:11:2]. This divergence highlights a fundamental tension in understanding the nature of this severe prohibition.

Readings

Kesef Mishneh (R. Yosef Karo, c. 1488–1575)

The Kesef Mishneh, a foundational commentary on the Mishneh Torah, primarily identifies the Rambam's sources in the Talmud. For Mourning 6:1, R. Karo directs us to Mo'ed Katan 22b as the source for the shloshim period and the Rambam's chosen asmachta:

"מנין לאבל שלשים יום? שנאמר (דברים כא, יג) 'ובכתה את אביה ואת אמה ירח ימים'. וקרא דמשה ואהרן למה לי? לומר לך מה בכי משה שלשים יום, אף בכי אהרן שלשים יום, וכן כל מיתי ישראל שלשים יום."

From where do we know that a mourner observes thirty days? As it is stated (Deuteronomy 21:13), "And she shall cry for her father and her mother for a month." And why do I need the verse about Moshe and Aharon? To tell you that just as the weeping for Moshe was thirty days, so too the weeping for Aharon was thirty days, and similarly for all deceased of Israel, thirty days.

Kesef Mishneh on Mishneh Torah, Mourning 6:1, citing Mo'ed Katan 22b

The chiddush of the Kesef Mishneh here is twofold: first, he confirms that the Rambam's reliance on yefat to'ar as an asmachta is directly from the Gemara. Second, he elucidates why the Gemara (and by extension, the Rambam's tradition) chose this verse, specifically noting the Gemara's discussion of Moshe and Aharon as additional asmachtot and explaining their role in extending the principle to all deaths. However, the Rambam's text only cites yefat to'ar, which is a point of friction we will address.

Regarding the unique law of the tzaluv (Mishneh Torah, Mourning 6:11), the Kesef Mishneh offers a clear rationale:

"וזהו מטעם בזיון המת, שכאשר יראהו יזכרו בקרובו הצלוב ויתבזה המת."

And this is due to the disgrace of the dead, for when they see him, they will be reminded of his crucified relative, and the dead will be disgraced.

Kesef Mishneh on Mishneh Torah, Mourning 6:11

Here, the Kesef Mishneh's chiddush is in providing the sevara of bizuy ha'mes – that the continued presence of the mourner in the city where his relative was publicly shamed would perpetually revive the memory of the shame, thereby disgracing the deceased. This sevara explains the duration ("until the flesh decomposes," as the physical reminder vanishes) and the exception for large cities (where anonymity lessens public shame).

Radbaz (R. David ibn Zimra, c. 1479–1573)

The Radbaz, another pivotal commentator, often delves into the sevara behind the Rambam's rulings, sometimes offering alternative interpretations or elaborations. On the tzaluv law in Mourning 6:11, the Radbaz presents a different perspective than the Kesef Mishneh:

"ויש מפרשים שטעם הדבר הוא משום אבלות, שאם ישהה במקום שקרובו צלוב, נראה כמזלזל באבלות עליו, וכשיכלה הבשר כבר תמה חובת האבלות."

And there are those who explain that the reason is due to mourning, that if one remains in the place where his relative was crucified, it appears as if he is disrespecting the mourning for him, and when the flesh decomposes, the obligation of mourning has ended.

Radbaz on Mishneh Torah, Mourning 6:11

The Radbaz's chiddush is to shift the primary sevara from external bizuy ha'mes to internal aveilus. The prohibition stems from the appearance of disrespect to the aveilus itself if the mourner continues to dwell in the place of the profound tragedy. The duration "until the flesh decomposes" is then re-interpreted as a marker for when the intensity of the aveilus for this unique circumstance is considered to have subsided, or at least when the overt visual reminder that would constitute "disrespect" is gone. This introduces a tension with the Kesef Mishneh's approach, exploring whether the prohibition is primarily for the dignity of the deceased or the proper expression of the mourner's grief.

Raavad (R. Avraham ben David of Posquières, c. 1125–1198)

The Raavad, known for his critical glosses (Hassagot) on the Mishneh Torah, occasionally offers an alternative understanding or a different source tradition. On Mourning 6:1, regarding the source for shloshim, the Raavad simply states:

"שלושים יום מדברי קבלה."

Thirty days are from accepted tradition.

Raavad on Mishneh Torah, Mourning 6:1

The Raavad's chiddush here is subtle yet significant. While the Rambam explicitly seeks and provides an asmachta from Devarim 21:13, the Raavad's terse comment implies that the shloshim period is not necessarily derived through derasha or asmachta but rather through Kabbalah – an established, orally transmitted tradition. This suggests a more fundamental, perhaps even Halakha L'Moshe MiSinai, origin for the shloshim concept, rather than a Rabbinic enactment supported by a verse. This perspective frames the shloshim not as a later Rabbinic takanah seeking biblical backing, but as an ancient, integral part of Torah Sheba'al Peh, whose origins are not necessarily found in explicit textual derivation.

Friction

The Double-Edged Sword of the Tzaluv

The Rambam's unique halacha regarding a relative who was "crucified in a city" (Mishneh Torah, Mourning 6:11) presents a potent point of friction, particularly concerning the underlying sevara and the specified duration of the prohibition. The Rambam states that the mourner "is forbidden to dwell in that city until the flesh of the corpse decomposes" (עד שיכלה הבשר).

Kushya: Why this specific and unusual duration, "until the flesh decomposes," and what is its underlying rationale? The Kesef Mishneh [on Mishneh Torah, Mourning 6:11] posits the reason as bizuy ha'mes (disgrace of the dead), arguing that the mourner's presence would continually remind people of the public shame, thereby disgracing the deceased. The Radbaz [on Mishneh Torah, Mourning 6:11], conversely, suggests the reason is aveilus (mourning), where remaining in the city would appear as disrespect for the mourning process itself. These two sevarot create a kushya:

1. If bizuy ha'mes: Does the bizayon truly cease once the flesh decomposes? Memories and the historical fact of the crucifixion persist, even without the physical corpse. Why would the bizayon be tied strictly to the physical decomposition? Moreover, if the primary concern is bizayon, why is there an exception for a "large metropolis like Antioch" [Mishneh Torah, Mourning 6:11]? The act of crucifixion is still a historical fact, even if fewer people know the individual.
2. If aveilus: Why is the duration "until the flesh decomposes" and not the standard shloshim or yud bet chodesh (for parents)? If it's about the mourner's respect for the mourning, this period seems arbitrary and disconnected from other mourning durations. Furthermore, it implies a severity of aveilus that transcends conventional halachot, yet is geographically limited.

Terutz: The Rambam's formulation "עד שיכלה הבשר" skillfully integrates both sevarot into a comprehensive understanding. The prohibition is indeed rooted in bizuy ha'mes, as suggested by the Kesef Mishneh. The bizayon is most acutely felt, and most readily triggered in the public consciousness, when the physical remnant of the crucifixion is still present and recognizable. Once "the flesh decomposes," the direct visual prompt for the shame is removed. While the historical memory may linger, the immediate and palpable sense of ongoing disgrace tied to the physical presence diminishes significantly.

The Radbaz's sevara of aveilus is not a contradiction but rather a complementary dimension. The unique intensity of the aveilus for a tzaluv relative, who suffered such a public and ignominious death, requires an equally profound and visible act of separation on the part of the mourner. Dwelling in the city where such a public spectacle occurred would indeed "appear as if he is disrespecting the mourning for him" (נראה כמזלזל באבלות עליו) because it would seem to minimize the enormity of the tragedy and its associated shame. This specific aveilus is intrinsically linked to the bizayon of the death itself. Therefore, the duration "until the flesh decomposes" marks the point at which both the most acute visual source of public disgrace and the most intense, publicly demanding aspect of the mourning period for this unique circumstance are considered to have passed. The exception for a large city further supports this synthesis: in a metropolis, the anonymity reduces the public visibility of both the bizayon and the apparent disrespect to aveilus, thus mitigating the need for such a severe prohibition. The Rambam, therefore, captures the multifaceted nature of this profound tragedy.

Intertext

The Asmachta Controversy: Yefat To'ar vs. Moshe/Aharon

The Rambam begins his discussion of shloshim by explicitly stating: "Which source did our Sages use as a support for the concept of 30 days? Deuteronomy 21:13 states: 'And she shall cry for her father and mother for a month.'" [Mishneh Torah, Mourning 6:1]. This passage, the yefat to'ar, describes the month-long period a captive woman must mourn her parents before her captor may marry her.

However, the Gemara in Mo'ed Katan 22b, which is the primary source for these laws, offers two distinct asmachtot:

"מנין לאבל שלשים יום? שנאמר (דברים כא, יג) 'ובכתה את אביה ואת אמה ירח ימים', וכתיב (דברים לד, ח) 'ויתמו ימי בכי אבל משה שלשים יום'."

From where do we know thirty days of mourning? For it is stated, "and she shall cry for her father and her mother for a month," and it is written, "And the days of weeping and mourning for Moses were ended, thirty days."

Mo'ed Katan 22b

Indeed, the mourning for Aharon is also cited as shloshim (Bamidbar 20:29: "וַיִּבְכּוּ אֶת אַהֲרֹן שְׁלֹשִׁים יוֹם כֹּל בֵּית יִשְׂרָאֵל").

Friction Point: Why does the Rambam, who is typically meticulous in presenting comprehensive sources, choose to cite only the yefat to'ar passage, omitting the clear and direct references to the thirty-day mourning periods for Moshe and Aharon? The latter two seem far more straightforward as asmachtot, given their explicit mention of "thirty days" and their context within the Jewish people's mourning.

Analysis/Resolution: The Rambam's deliberate choice reveals a nuanced understanding of textual derivation and halachic classification.

1. Specificity to Individual Mourning: The yefat to'ar passage specifically refers to mourning "her father and mother." This directly connects to the Rambam's emphasis throughout this chapter on the unique stringencies and extended practices for mourning parents, distinguishing them from other relatives. The mourning for Moshe and Aharon, while clearly shloshim, was a national mourning (כָּל בֵּית יִשְׂרָאֵל), which might be seen as a distinct category from the individual aveilus that is the focus of the chapter.
2. Derasha vs. Historical Record: The yefat to'ar passage, while not a direct command, is presented by Chazal as a derasha (interpretation) to extract a general principle: "והוא הדין שכל אבל משיב לבו לצער שלושים יום" (And it is the same rule that every mourner focuses his heart on sorrow for thirty days) [Mishneh Torah, Mourning 6:1]. The mourning for Moshe and Aharon, while providing a clear precedent for a thirty-day period, might be understood as a historical account of a specific event rather than a legislative asmachta for all individual mourning. The Rambam, by selecting yefat to'ar, might be emphasizing the derashic source for the Rabbinic enactment, rather than merely a historical data point.
3. Raavad's Perspective: The Raavad's comment on Mourning 6:1, "שלושים יום מדברי קבלה" (Thirty days are from accepted tradition), further highlights the complexity. While the Rambam seeks a textual asmachta, the Raavad implies the shloshim period is a more fundamental tradition, perhaps not requiring explicit textual derivation beyond general acceptance. However, even within a Kabbalah framework, Chazal often sought asmachtot, and the Rambam's choice reflects his particular approach to prioritizing asmachtot that speak most directly to the specific halachic distinctions he is outlining.

Psak/Practice

The laws outlined in Mishneh Torah, Mourning 6 form the bedrock of the halachot of shloshim as codified in the Shulchan Aruch (Yoreh De'ah chapters 390-393).

1. Tiered Mourning: The Rambam's clear distinction between mourning for parents and for other relatives is a fundamental heuristic in halacha. While shiva is uniform, shloshim introduces differentiation, with parents requiring extended prohibitions (e.g., se'udat mere'im, business, haircuts) and a deeper level of aveilus that can last up to twelve months. This tiered approach influences how poskim evaluate leniencies and stringencies in various situations.
2. Specific Prohibitions: The five matters (haircutting, ironed clothes, marriage, celebratory gatherings, business trips) are directly adopted. The specific leniencies for a widower/widow remarrying within shloshim (e.g., if he has not fulfilled pru u'rvu, has young children, or needs an attendant) are crucial and frequently applied in practice, balancing the needs of the living with the honor of the deceased.
3. Miktzas Hayom K'kulo: The principle that "even a portion of the thirtieth day is considered as the entire day" [Mishneh Torah, Mourning 6:12] is fundamental for ending shloshim (and shiva), allowing mourners to resume certain activities on the morning of the 30th day.
4. Meta-Halachic Principles: The discussion around the tzaluv (Mishneh Torah, Mourning 6:11) and the tension between bizuy ha'mes and aveilus illustrates how Chazal balance various ethical and emotional considerations in establishing halacha. While rare in modern times, the underlying principles inform rulings in other situations involving public disgrace or intense personal grief. The Rambam's integration of both sevarot demonstrates a comprehensive approach to defining the parameters of mourning and communal sensitivity.

Takeaway

The Rambam meticulously charts the Rabbinic enactments of shloshim, showcasing a sophisticated system of tiered mourning practices anchored by textual asmachtot and nuanced sevarot that balance the deceased's honor with the mourner's needs and societal sensitivities.