(Vol. LXXIV, 1964, pp. 101-104)
QUESTION: A group of former immigrants from Central Europe feel the need of visiting the graves of their parents, as is traditional. But the parents and other close relatives were murdered during the Nazi period, and there is no possible way of finding their graves (if, indeed, there are any graves). Their question, therefore, is this: May they (in the Jewish cemetery of Milwaukee, where they live) set up a tombstone where they can visit and count it as a grave of their parents and other dear ones who have perished?
ANSWER: Jewish burial and mourning traditions have frequently needed adjustment to the uncertain circumstances of the Jewish life in the Old World. Some of the adjustments made in the law and the customs prove the flexibility of the tradition in providing for the emotional needs of mourning families when the circumstances of the death are unusual. Most of the questions which needed adjustment concern the problem of mourning: When should Shiv-a begin? When should Yahrzeit be observed in the case when a deceased man's body is no longer to be found; or, indeed, in cases when there can no longer be any proof that the person is actually dead?
The classical decision was made in the 12th century in the Rhineland by Isaac Or Zarua of Vienna, who said that the moment the family gives up hope, that moment of despair shall be counted as the moment of death, and mourning, etc., shall begin from that date (Or Zarua II, Hilchot Avelut, #424; see also Yoreh De-a 375.6). This indicates at least the willingness of the tradition to adjust itself to the emotional needs of mourners when violence or accident creates the exceptional circumstance that the body is not available for burial.
However, the specific question asked here concerns the permissibility of setting up a tombstone in the absence of the body. As far as I know, this question has never come up in the legal literature. It is strange that it has not come up. If the question was frequently asked, "May we say Kaddish when the body was never found?" then the question could easily also have been asked, "May we put up a tombstone when the body was never found?" It would be interesting to speculate as to why this natural question was not asked. It may be because the historic Jewish cemeteries in the Rhineland and in Prague, etc., were so crowded with tombstones that it was often difficult to find a place for those who were actually buried there, much less so for those whose bodies were not laid to rest there. Nowadays the question arises often. Bodies are frequently lost at sea or in airplane accidents and are never recovered. The American military, in cemeteries overseas, have a stone on which are inscribed the names of the missing, who, therefore, are not buried in the cemetery. In London there is a cenotaph right in the middle of one of the main streets, in honor of soldiers who are buried elsewhere or who are missing.
Thus, while there is no discussion in the legal literature about setting up a tombstone where there is no body buried, there is nevertheless a great deal of discussion about tombstones in general, and part of this complex discussion has some relevance here. There is a long debate--going back to the beginnings of Jewish law in the Talmud--as to whether tombstones are meant to be for the honor of the dead or (also) for the benefit of the living. What would be involved in the discussion was whether survivors may dispose of tombstones in case bodies are moved. The whole discussion was summed up in both the Tur and the Shulchan Aruch, Yoreh De-a 364. Also, there is a handy summary of the debate in the responsa of Abraham Isaac Glick, Yad Yitschak, III.38 (published in Satmar, 1908). What is relevant to our question is that there is a growing body of opinion that the tombstones are also for the benefit of the living. As it is said in the above-mentioned responsum, the tombstone is for the purpose of directing the survivors to where they can go and pray.
This side of the discussion--i.e., that the purpose of the tombstone is also spiritually to benefit the survivors--was used in the one responsum which actually deals with almost the same question that you ask. Ephraim Oshry, now rabbi in New York, was, during the Nazi period, in the Kovno concentration ghetto to which Jews were sent from all over Europe. The Nazis destroyed and ploughed over the Jewish cemeteries in the neighborhood. A man came to Rabbi Oshry after the liberation with the following question: Since it was now impossible to locate the graves of his parents, and he was accustomed to go to the graves of his parents to pray, what should he do? Rabbi Oshry advised (Responsum Mima-amakim I, 28) that he set up a tombstone anywhere in the cemetery, and that would be an appropriate memorial where he could pray. Oshry uses the argument that tombstones are for the benefit of the living, and also calls attention to the fact that we put up memorials (even memorial plaques with the names of the deceased) in many synagogues and schools, far away from where the bodies are buried.
Rabbi Oshry has recently published a second volume of Mima-amakim, in which he returns to the problem in an interesting and rather touching way. The stones from the Jewish cemeteries had been taken during the Nazi occupation and used as paving stones in certain towns. The question was: How could Jewish people walk on such paving stones, the inscriptions on which were still legible? He urges that efforts be made to buy these stones; and since the graves to which they belong can no longer be located (because the cemeteries are ploughed up), the tombstones should be set up anywhere in a Jewish cemetery (Mima-amakim II, 20).
Hoffman, in Melamed Leho-il, vol. II, Responsum #139, deals with the question of putting up a tombstone for a body that was lost at sea. He finds no objection to doing it except, perhaps, the possible objection of using up a grave space that might be needed for someone else.
Let us, therefore, sum up the situation in Jewish tradition. From the earliest medieval days, adjustments were made (with regard to mourning) when bodies could not be found. With regard to the tombstones, one body of opinion is that they are put up for the spiritual benefit of the living. On the basis of the above, Rabbi Oshry decided that tombstones may be put up, even when the bodies can no longer be located. Therefore, on the basis of the above, a group of you who wish to do so, should set up a tombstone with the inscription of the names that you wish to remember. There can be two or three such stones, perhaps classified according to the cemeteries where they might have been buried had they died normally. Your members from Frankfurt could put up one stone, with the names of all their dead recorded, and so could other groups. You are free to have one or many stones, as you wish.
The inscription can easily be worked out. It is suggested that you have the usual five Hebrew letters-- Tav, Nun, Tsadi, Beit, He--which are appropriate because they say, "May their souls be bound up in eternal life." This can be followed, in English, with "To the unforgettable memory of our martyred dear ones," and the list of names. All this is justified on the basis of Jewish law and tradition.
Solomon B. Freehof