Even the Wicked have Rights

Rabbi Bernie Fox

If a man commits a sin for which he is sentenced to death, and he is put to death, you shall [then] hang him on a pole. But you shall not leave his body on the pole overnight. Rather, you shall bury him on that [same] day, for a hanging [human corpse] is a blasphemy of the L-rd, and you shall not defile your land, which the Hashem, your L-rd, is giving you as an inheritance.  (Sefer Devarim 21:22-23)

I. Prompt Burial

The above passages are the source for three commandments.  First, the Torah commands us to hang the body of a person who has been executed.  This measure is not required in every instance of execution.  Rambam – Maimonides – explains that it applies only to the body of a person who is executed for engaging in idolatry or who blasphemed Hashem.[1] Second, we are commanded to not leave this body hanging overnight.  Rambam explains that the body is hung close to sunset and immediately taken down and buried.[2]  Third, we are commanded to bury the body of one who was executed on the day of the execution.

The second and third commandments are closely related.  Both legislate prompt burial.  The second commandment formulates the obligation as a negative commandment.  The burial may not be delayed.  The third commandment states the obligation as a positive commandment.  The burial must be prompt.

These commandments obligating prompt burial are presented by the Torah as applying to the body of a person executed by the court.  The message of the passages seems to be that the body is hung to disgrace this grave sinner.  However, we may not prolong this display and the disgrace of the sinner.  The body must be immediately taken down and buried.

Rambam explains that despite the impression made by the passages, the commandments requiring prompt burial apply to all who die.  The burial of the departed may not be delayed.  This is our practice.  We make every effort to bury our departed promptly and without unnecessary delay.[3]

This is an interesting interpretation of the passages.  The passages present the commandments as governing the treatment of the body of a terrible sinner.  Rambam explains that the commandments obligating prompt burial are not actually specific to this sinner but apply to all our departed.  This interpretation substantially alters the message of the text.  How can we explain the Torah “disguising” the obligation to promptly bury every departed?  Why does the Torah present it as an obligation specific to the hanging body of the sinner?

II. Rambam’s Treatment of These Commandments

Rambam’s treatment of the two commandments regarding burial is interesting.  In his laws of mourning Rambam discusses, in detail, our practices regarding burial.  One would expect that this is where he would record these two commandments.  However, he does not include them in that section of his code.  Instead, he presents these commandments in his laws of the courts in the context of a body that has been hung.  This is strange.  These commandments are not limited to the special case of a body that is hanging.  All departed must be swiftly buried.

III.  Permitted Delay of Burial

To understand Rambam’s organization of these laws we must consider another issue.  Are there circumstances in which burial may be delayed?  Rambam explains that it is permitted to delay a burial to honor the departed.  For example, the burial may be delayed to prepare a casket or burial shrouds.[4]  The midrash derives this law from the above passages.  The passages state that one may not leave the body of the executed person on the pole overnight.  Instead, he must be buried.  The midrash explains that the delay is prohibited because the body is hanging from the pole; it is displayed to disgrace the sinner.  The disgrace may not be prolonged.  This implies that a delay that is not a disgrace but is necessary to properly honor the departed is permitted.[5]

The midrash’s derivation from the passages seems dubious.  The passages state that the body of the person executed must be hanged. However, there is a limit to the disgrace that may be brought upon the sinner.  The body must be lowered and buried quickly.  The disgrace may not be prolonged.  It does not follow that the burial of a body that is not hung in disgrace may be delayed – even if the delay is to secure a casket or burial shrouds.

Let’s summarize our questions:

  1. We are obligated to provide all our departed with prompt burial. Why does the Torah present the two commandments that express this obligation as related to the hanging body of a grave sinner?
  2. Rambam describes our burial practices in his laws of mourning. Why does Rambam enumerate these two commandments in his laws of the courts and not in his laws of mourning.
  3. The passages seem to direct us to promptly bury the hanging body and not prolong the disgrace. Yet, the midrash derives from this that burial may be delayed to better honor the departed. How can this be derived from the passages?

IV. Delay of Burial Expresses Scorn

Why must the body of the sinner be promptly buried?  The answer suggested by the simple meaning of the text is that we are required to disgrace this sinner by hanging his body.  Yet, the Torah strictly limits the extent of the degradation.  We may not prolong the state of disgrace.  The body is hung and then immediately lowered and buried.

Our questions suggest an alternative explanation.  Delaying the burial does not only prolong the state of disgrace.  Delay of burial is an additional degradation.  In other words, the sole disgrace to which the sinner is subjected is the hanging of his body.  We may not prolong this disgrace.  Neither may we add another disgrace – delaying burial.  In short, delay of burial is itself a disgrace.  This interpretation answers all our questions.

The Torah is not disguising the obligation to promptly bury every departed.  Delay of burial disgraces the departed. For this reason, all departed must be buried promptly.  The Torah presents this obligation in this context to teach us that even the sinner whom we are commanded to disgrace through hanging his body may not be degraded further by adding another indignity – the delay of his burial.

Rambam places the commandments obligating prompt burial in his laws of the courts because the Torah presents these commandments in the context of the obligation to hang the body of the idolater or blasphemer.  The Torah is telling us that we may not add to the abasement of the sinner.  However, by communicating that delay of burial is an indignity, the Torah informs us that every departed must receive a prompt burial.  If we may not debase, through delay of burial, one we are required to scorn, certainly the same obligation of prompt burial applies to other departed.

The midrash understands that the message of passages is that we may not add to the degradation of the grave sinner by delaying burial.  It also understands from this that delaying burial not only prolongs the sinner’s state of disgrace; it is itself a debasement.  Based on this understanding, the midrash concludes that delay that honors the departed is permitted.

V. Reflections on How we Treat one Another

The passages communicate important messages.  We are required to hang the sinner’s body but not permitted to extend the time the body remains displayed or add the indignity of a delayed burial.  Even one condemned as evil and deserving our scorn cannot be degraded beyond strict limits.  We sometimes must chastise a child, criticize someone we supervise, or correct a peer.  The message of these passages is that we must take extreme care.  If the idolater and blasphemer may not be subjected to unnecessary disgrace, certainly we must not cause unnecessary embarrassment to those we correct or criticize.

Also, the Torah is so concerned with the honor of human-beings, we may not delay the burial of the body of the departed.  The departed does not sense the insult or incur harm.  Yet, we may not dishonor him or her through delay of burial.  This communicates a powerful message about how we must treat those who feel the hurt and embarrassment.

[1] Rabbeinu Moshe ben Maimon (Rambam / Maimonides) Mishnah Torah, Hilchot Sanhedrin 15:6.

[2] Rabbeinu Moshe ben Maimon (Rambam / Maimonides) Mishnah Torah, Hilchot Sanhedrin 15:7.

[3] Rabbeinu Moshe ben Maimon (Rambam / Maimonides) Mishnah Torah, Hilchot Sanhedrin 15:8.  Rambam does not indicate here that the positive command relates to all departed.  In Sefer HaMitzvot, Mitzvat Aseh 231, he extends the commandment to all departed.

[4] Rabbeinu Moshe ben Maimon (Rambam / Maimonides) Mishnah Torah, Hilchot Sanhedrin 15:8.

[5] Sifrei Parshat Parshat Ki Tetze 40.