Drawing the Battle Lines

In 1901 Rabbi Yisrael Ḥayim Braun (1869–1942) of Halle, Germany, published a pamphlet titled Beit Yisrael, where he collected the opinions of several Central European Orthodox rabbis regarding the issue of burial of the ashes of Jews who, based on personal requests during their lifetimes, had been cremated.Footnote ¹⁰ This question was not a completely new one, nor was it restricted to Jewish frameworks. Ever since the emergence of cremation technology in the 1870s along with a social movement to support it, debates had been raging within European society in general and especially among religious circles.Footnote ¹¹ Proponents of cremation focused on the hygienic benefits to be achieved through this form of disposal of the dead.Footnote ¹² Some also presented cremation as an “enlightened” rejection of irrational religious concepts such as “the world to come” and “the resurrection of the dead.”Footnote ¹³

In 1886 the Catholic Church unilaterally forbade cremation. The papal declaration was later codified into a canon that denied ecclesiastical burial to anyone who asked to be cremated unless they repented before their death.Footnote ¹⁴ In a pamphlet published in 1898, the German Protestant church also came out vociferously against cremation.Footnote ¹⁵ As to Jewish authorities, the Italian rabbis had been deliberating throughout the 1880s and 1890s, and numerous religious figures had engaged the issue in other locales as well.Footnote ¹⁶Beit Yisrael, however, was the first collection of Jewish legal responsa with a section dedicated solely to the issue of cremation and interment of the ashes. Its publication came at a time when there were already nine functioning crematoria in Germany. Based on the statistics that are available from Gotha, established in 1878 as the first industrial cremation facility in Germany, by the turn of the twentieth century the number of people being cremated on a yearly basis was already in the thousands.Footnote ¹⁷ In 1918 the figure had reached over 14,000. The vast majority were Protestants, although hundreds of Jews and Catholics were among those who made this choice as well.Footnote ¹⁸

The Hamburg crematorium began working in 1892 and the city emerged as a focal point for the social movement to promote this form of dealing with bodies of the deceased.Footnote ¹⁹ In parallel, the Hamburg Jewish community had long been and continued throughout the early twentieth century to serve as one of the most important centers of German Jewish life.Footnote ²⁰ On both accounts, then, the publication of the opinion of the chief rabbi (Oberabbiner) of Hamburg, the scholarly Rabbi Markus (Mordecai Amram) Hirsch (1833–1909),Footnote ²¹ in the book Beit Yisrael was of major significance.Footnote ²²

A Hungarian native and previously the chief rabbi of Prague, Hirsch was unequivocal in his opposition to cremation and his criticism of those who chose this path. His instructions to the Hamburg Jewish burial society were to refrain from any involvement with the corpse beforehand or with the ashes after the procedure. Nonetheless, he ruled that the family should bury the ashes, but only in a separate section of the Jewish cemetery dedicated solely to that purpose.Footnote ²³

Apparently unbeknownst to Hirsch, another prominent rabbinic figure in his vicinity objected vociferously to this judgment. Only in the fall of 1902 (Kislev 5663) did this individual come to the fore, when an article by Chief Rabbi Mayer Lerner (1857–1930) of AltonaFootnote ²⁴—the adjoining Jewish community that had for many years been attached to Hamburg—was published in the Jerusalem-based rabbinic journal Hame'asef.Footnote ²⁵ Lerner, himself an accomplished talmudist and scientific scholar of rabbinic literature, critiqued vehemently a rabbi from a “certain” community who permitted the burial of cremation-ashes in a specially designated area of the Jewish cemetery.Footnote ²⁶ Lerner also took issue with a previous ruling by this same rabbi regarding re-interment of bodies from a Jewish cemetery due to new public roads construction in the area.Footnote ²⁷ He claimed, in fact, that this authority had rendered “bad” decisions and that it was incumbent upon others “to rebuke him.”Footnote ²⁸ These assertions were reiterated in a submission that appeared during the summer of 1903 in the German Orthodox weekly, Der Israelit.

Although Hirsch was not mentioned by name, both geographic proximity and Lerner's own understanding of the issue demonstrate beyond a doubt that this negative assessment was aimed directly at the Hamburg neighbor.Footnote ²⁹ Indeed the attack on Hirsch and his legal policies did not go unanswered for long. In 1904, the Hungarian-born spiritual leader of the Munich Orthodox community, Rabbi Heinrich (Hanoch) Ehrentreu (1854–1927), published a twenty-one-page pamphlet titled Ḥeker halakha.Footnote ³⁰ It was dedicated to defending the stand of his mentor and father-in-law, Markus Hirsch.Footnote ³¹ In parallel, a series of interchanges between the Lerner and Hirsch/Ehrentreu camps appeared on the pages of Der Israelit in 1904 and 1905. Throughout this period Lerner was canvassing support for his position forbidding burial of the ashes as well as that regarding re-interment of corpses in a new cemetery. All told, 150 rabbis from Germany, Holland, Hungary, Galicia, Poland, Russia, the United States, Egypt, and the Land of Israel sent letters that were published along with an expanded version of Lerner's original 1903 essay and a point-by-point response to Ehrentreu in the book Ḥayei ‘olam that came out in 1905.Footnote ³² By no means did this manifesto signal the end of the debate, and in 1907 the Hirsch/Ehrentreu camp published its own response to Ḥayei ‘olam in the form of a booklet titled ’Or ha-'emet.Footnote ³³ For the next few years the issue reappeared continually in the pages of Der Israelit, with representatives of each side seeking to prove the correctness of their respective positions.

Legal Categories and Social Implications

According to Markus Hirsch of Hamburg an individual who requested to be cremated after death was clearly a poshe‘a (infidel), and was classified as a poresh mi-darkhei ha-ẓibbur, one who has separated him/herself from the ways of the collective. Following the codified law for such persons, it was forbidden to perform any traditional procedures prior to cremation such as ritual purification (taharah), placing the corpse in burial shrouds, or escorting the body. Even family members were not to mourn, nor carry out kriʿa—rending of a personal garment; and if they were kohanim (of priestly ancestry) they were barred from becoming ritually impure by coming into contact with the remains as would normally be allowed for immediate relatives.Footnote ³⁴ Notwithstanding, Hirsch concluded that the physical transformation that the body undergoes through cremation does not nullify the prohibition against gaining benefit from a corpse.Footnote ³⁵ Therefore, after-the-fact burial was still required to assure proper disposal of the remains. Still, ostensibly in order to clarify the severity of the sin of cremation, he dictated that the ashes were to be interred in a separately demarcated area of the Jewish cemetery away from the rest of the graves.Footnote ³⁶ Such a position found precedent in the custom regarding those who commit suicide.Footnote ³⁷ Moreover, some prominent German Orthodox rabbis of this period had suggested acting similarly in regard to burial of Jews who had not been circumcised.Footnote ³⁸

At the conclusion of his responsum, Hirsch added a comment that points to his awareness of the social significance of his decision. Despite the legal justification of his position, numerous stalwart Orthodox members of his congregation appealed to him to prohibit burial of the ashes in the Jewish cemetery altogether as a means of discouraging those considering cremation from going through with it. In response he explained: “At this time, for it is a difficult period, the religious court lacks the strength to make such an emergency declaration. Therefore, it is not within our hands to decide [based on any other criterion] except upon the principles of the Talmud and the earlier authorities.”Footnote ³⁹ Simply put, even in cosmopolitan twentieth-century Hamburg, the basic principles of the halakhah had to be upheld. But the advancement of additional stringencies not absolutely required by law was beyond the purview of the local religious court.

There is a degree of ambivalence to Hirsch's words that opens them up to alternative interpretations. On the one hand, they can be read as an expression of regret that the formal authority of contemporary rabbis was weak and dependent on the graces of the secular government. Under the existing, less-than-ideal circumstances they were not at liberty to adopt the preferred tactic of deterrence by enacting proactively strict rulings. That said, Hirsch's concluding sentence also alludes to his fear of alienating those who would respond negatively to the adoption of a combative stance that would leave them unable to memorialize some Jewish brethren within the local communal cemetery.

In his refutations, Mayer Lerner of Altona aimed to undermine the “lenient” decision of Hirsch regarding burial within the confines of a Jewish cemetery. He argued from numerous perspectives that the ashes did not have the status of a body according to the halakhah and did not render living people ritually impure. Furthermore, he introduced “metahalakhic” reasoning grounded in his perception of social realities to a far greater degree than did his rival interlocutor.

Like some of Hirsch's own Orthodox constituents, Lerner posited in his initial 1903 article that any moderation connected to cremation would encourage others to follow suit—as they would know that even this act would not cause them to forfeit their burial rights.Footnote ⁴⁰ In addition, since the Christians were so adamantly against cremation, for the Jews to be any less vociferous in their reactions would constitute a grave public desecration of God's name—a ḥillul ha-shem.Footnote ⁴¹ Following this train of thought, in his later work Ḥayei ‘olam Lerner added the fear that if burial of cremated remains were to become normative practice, it would eventually challenge the historic right of European Jews to maintain their own exclusive cemetery grounds. For the local Christian authorities would protest that Jews should certainly prefer being buried with upright Christians than together with evil Jewish cremationists.Footnote ⁴²

Lerner's 1903 article also puts forward the initial elements of an evaluation of the cremationists themselves, further developed in his 1905 book, as the worst kind of sinners imaginable—“having reached [seen] the entrance to hell [they still] refused to repent.”Footnote ⁴³ Accordingly, there was no basis for drawing parallels between them and those who committed suicide, since the latter were unfortunates who “were driven crazy by their bitter hearts.”Footnote ⁴⁴ Most revealing, he rejected the possibility of categorizing such people as “infants taken captive”—tinokot she-nishbu—whose deficient knowledge of Jewish law, according to prominent German Orthodox authorities of the previous generation, would exonerate them from culpability for their errant behavior.Footnote ⁴⁵ The vast majority of those who chose cremation, according to Lerner, were known to have abandoned basic Jewish practice. Thus their cremation only concretized the fact that they “have absolutely no vestige of Judaism left in them.”Footnote ⁴⁶

Cremationists and Other Modern Sinners

This last remark underscores the implications of Lerner's debate with Hirsch beyond the specifics of cremation, and locates the discussion within a broader topic that had occupied the Orthodox throughout the previous century: how to relate to their nonobservant brethren. According to talmudic and medieval rabbinic sources, Jews who live sinful lifestyles, such as public Sabbath desecraters and persistent consumers of forbidden foods, are to be penalized and cast out by subjecting them to a variety of religious and social sanctions.Footnote ⁴⁷ The Babylonian Talmud, for example, proclaims that “a public Sabbath desecrater is like a Gentile in all ways.”Footnote ⁴⁸ Such an exclusionary approach, even if only partially implemented in practice, could be sustained in the religiously and socially bifurcated atmosphere of medieval and early modern Europe. As the percentages of Central and Western-European Jews who had abandoned observance grew dramatically in the nineteenth century, however, the Orthodox who remained committed to traditional standards of the halakhah were confronted with the dilemma of how Jewish law and communal policy should be formulated in response to these new and unprecedented circumstances. Put in other words, when over 50 percent of the Jews in some areas no longer abided by the basic Sabbath restrictions, was there any justification or feasibility for treating public Sabbath desecrators as notorious deviants who are denied various rights and privileges within social or ritual contexts?Footnote ⁴⁹ In point of fact, by the first decade of the twentieth century, when the cremation controversy erupted, the number of Sabbath desecraters in Germany had risen closer to 80 percent.Footnote ⁵⁰

One of the most original and influential efforts to address this new predicament was penned in 1860 by Rabbi Jacob Ettlinger, mid-nineteenth-century Germany's most authoritative rabbinic decisor, who—coincidentally for the current discussion—spent the majority of his career as chief rabbi of Altona.Footnote ⁵¹ He distinguished between contemporary Sabbath desecraters and the category as described in premodern codes on both theological and circumstantial grounds. For one, the classical figures were assumed to have been motivated by heretical intentions—lack of belief in the biblical account of creation—while the behavior of most of the new offenders stemmed primarily from economic and social considerations and did not necessarily reflect an abandonment of core precepts. Moreover, he extended further a perspective first introduced in the twelfth century by Maimonides regarding Karaite children, by applying the talmudic case of an “infant taken captive” to most modern public Sabbath desecrators.Footnote ⁵² This principle implied that people who lack fundamental Jewish knowledge, like the majority of Ettlinger's generation, cannot be held responsible for their delinquent religious behavior. Thus, such individuals would no longer be deemed intentional sinners and certain classical sanctions could be suspended.Footnote ⁵³

This new conceptual foundation was used broadly by numerous Orthodox authorities from the last decades of the nineteenth century onward and became the centerpiece for a fresh approach toward nonobservant Jews that continues to inform rabbinic discourse until today. Some Orthodox figures, however, demonstrated ambivalence toward the sweeping potential of this leniency. In fact, there were streams intent on combating or at the very least not lending credence to divergence from the tradition rejected this position outright.Footnote ⁵⁴

On the surface, Lerner would appear to fall into the latter category. Not only did he aim vituperative comments at a large group of contemporary nonobservant individuals, but regarding Jewish cremationists he was explicit in his rejection of the tinok she-nishbah framework as a viable basis for showing a modicum of understanding toward them. However, his decision to raise this terminology in his discourse and then demur suggests that he was not only familiar with but even open to its use under other conditions. Indeed, in a responsum he authored that appears in his posthumously published collection Hadar ha-karmel, Lerner actually recommended applying the tinok she-nishbah leniency to modern Sabbath desecraters.Footnote ⁵⁵

He was quite aware of this selective utilization, and at the end of his 1905 work, Ḥayei ‘olam, Lerner took pains to explain why those who requested cremation were far worse than other contemporary sinners and did not meet the criteria necessary to be judged mercifully. Among the “evildoers” [reshaʿim] who consume forbidden foods and desecrate the Sabbath,

For Lerner then, as for Ettlinger, personal religious observance had ceased to function as a baseline for Jewish identity. Nonetheless, a boundary between normative Jews and outcasts—albeit a new one—still existed. Compliance with Sabbath and dietary restrictions had been replaced by traditional burial as the minimal requirement for being treated as a regular member of the community. The decline in religious adherence was certainly lamented by Lerner, but he had to some degree come to terms with it. Yet he was intent on preserving a nominal level of connection between Jewish existence in his day and the standards of the past. As he put it, “For what still remains? Are not the great commandments like Sabbath observance, in these difficult times [be-ẓuk ha-‘itim], rapidly diminishing…what will be of the Torah?”Footnote ⁵⁷ Thus, those who rejected that which he considered to be the last remaining element in Jewish identity were no longer even worthy of inclusion in a Jewish cemetery.

This distinction by Lerner between cremationists and other sinners was subsequently vilified by Heinrich Ehrentreu of Munich, who from 1903 undertook the role of chief disputant and defender of the position set down by his less combative father-in-law, Markus Hirsch of Hamburg.Footnote ⁵⁸ Recall that in 1904 Ehrentreu published a booklet, Ḥeker halakha,Footnote ⁵⁹ in which he reacted vehemently to Lerner's disagreements with Hirsch, regarding both re-interment and burial of the cremation-ashes.Footnote ⁶⁰ In 1907 Rabbi Shimon Deutsch of Fürth, a close student and colleague of Ehrentreu, received his mentor's permission to publish a series of letters in a pamphlet titled 'Or ha-'emet. There Ehrentreu once again took Lerner to task both on substantive and personal grounds. By this time, not only was the cremation controversy a source of legal and ideological dispute, but it had nurtured a deeply adversarial dynamic between these two prominent and learned German Orthodox figures.

According to Ehrentreu the cremationists were for the most part no different than most other nonobservant Jews of the day whose behavior was certainly misguided but nevertheless tolerated. If Lerner, he challenged, was so eager to distinguish between observant Jews and sinners, why did he (or for that matter most German Orthodox rabbis other than those in secessionist Orthodox communities that had their own cemeteries) put up with full-fledged Jewish burials for public Sabbath desecrators, not to mention those who did not circumcise their sons or those who had come to terms with the apostasy of their own offspring?Footnote ⁶¹ Meanwhile, Jews who had asked to be cremated were denied even a dishonorable interment. Surely, suggests Ehrentreu, the habitual transgressions represented much more critical signs of an abandonment of Jewish tradition than the one-time act of cremation. At this juncture, he argues that

Therefore, just as the Orthodox community had addressed other forms of religious deviance in a way that did not demand a complete casting out of the perpetrators, so should the case be regarding those who had been cremated.

Beyond challenging the fundamental integrity of his adversary's ruling, a central upshot of Ehrentreu's articulation is that at a historical juncture when no more than 30 percent of all German Jews adhered to traditional practice, the very idea of religious authorities in heterogeneous communities declaring a Jew totally beyond the pale was essentially obsolete. The only individuals who truly sat outside the communal boundary were those who of their own volition had decided to place themselves there by reneging on Jewish burial.

Burial, Belonging, and Tolerance in Early Twentieth-Century Orthodox Thought

This last argument by Ehrentreu suggests a novel formulation of what constituted a positive Jewish identity under the circumstances prevailing in early twentieth-century Germany. Namely, the very desire to be buried in a Jewish cemetery—even after cremation—demonstrated the individual's fundamental attachment to the “Israelites.” By discerning meaningful declarations of Jewish identity in behaviors—such as Jewish burial—that were once taken for granted, Ehrentreu's pronouncement moved beyond the tolerant outlook rendered by Ettlinger during the mid-nineteenth century. Indeed, it raises intriguing comparisons to other better-known approaches put forward during the early twentieth century by Orthodox rabbis outside Germany who sought to judge nonobservant Jews favorably.

In an essay penned in 1913, for example, Rabbi Abraham Isaac ha-Kohen Kook analyzed the Jewish identity of young Zionist pioneers associated with the socialist Ha-Shomer ha-Tsa'ir movement who were slain by Arabs while guarding a new kibbutz settlement. He took pains to distinguish between these figures and religious deviants from previous eras: “…those in the past who separated from the ways of the community intended to destroy the nation…. From this perspective we can be comforted, for our sons, distanced as they are … their souls are completely at one with our nation's sorrows … and could never be considered as if they are ‘not from among us.’”Footnote ⁶³ In the eyes of Kook, then, acts that demonstrated an individual's deep-seated connection to the Jewish nation were testament to their fundamental membership in the fold and could at least partially neutralize the ill effects of other rebellious behaviors. Similarly, those in Ehrentreu's orbit who asked to be cremated but also to be buried in a Jewish cemetery were certainly not conducting themselves ideally. Nevertheless, their final interment requests could be viewed as a predominant assertion of personal attachment to the Jewish people.

Having acknowledged similarities between Ehrentreu and the rabbi from the Land of Israel, Kook's position needs to be understood in light of his overall positive appreciation for the role played by secular Zionists—especially those who dedicated their lives to building up the land and defending its Jewish inhabitants—in the redemptive process. Grounding himself in Lurianic mystical thought, Kook was not only open to historical distinctions between sinners of the past and the present. He actually perceived some of the seemingly seditious deeds of secular Zionists as being crucial building blocks toward messianic times, for they facilitated the emergence of nationalist elements that had lain dormant for hundreds of years.Footnote ⁶⁴ Ehrentreu, by contrast, addressed a Diaspora constituency, and there is no reason to assume that he was party to Kook's mystical discourse.

Even closer parallels with the point of view advanced by Ehrentreu regarding the cremationists can be found in the writings of Rabbi Ḥayim Hirshenson (1857–1935). Like Kook, this original religious thinker and prolific author devoted a great deal of his literary output to issues related to the burgeoning Jewish settlement in the Land of Israel. Yet he served for over thirty years as rabbi of an Orthodox congregation in Hoboken, New Jersey.Footnote ⁶⁵ In this capacity he regularly witnessed widespread nonobservance among the American Jewish immigrant population of his day.

In developing an approach to these people, Hirshenson distinguished several categories of religious deviance. One variety was people influenced by scientific learning who question religious truths and hallowed observances. Rather than simply deriding them for being carried away by “foreign” ideas, Hirshenson considered their deviance to have resulted from their intellectual honesty. As such, even their heretical behaviors should not be cause for judging them harshly or distancing them from their Jewish brethren. The worst types of sinners, moreover, were the “principled assimilationists,” whose errant practices reflected deep-seated ideological opposition to traditional Jewish law and theological tenets. Yet even they, it turned out, attended synagogue from time to time due to familial or communal responsibilities. According to Hirshenson, such visits did not neutralize the sinful regimens and heretical beliefs of these individuals, yet these occasional appearances did demonstrate that “they want to be Jewish.”Footnote ⁶⁶ Therefore, while he would not permit members of the latter group to receive synagogue honors, he maintained that by joining services they had performed a form of repentance—their prayers had legitimacy and should not be deemed abominations.

In their analysis of Hirshenson, Avi Sagi and Ẓvi Zohar argue that he did not claim that by attending synagogue these sinning individuals had demonstrated allegiance to normative Jewish theological notions. He recognized their presence, rather, as a positive statement regarding their attachment to the Jewish collective. This in itself was a valuable act that mitigated their delinquencies and warranted viewing them sympathetically. Hirshenson's ruling, then, was predicated on the idea that independent assertions of “ethnic” Jewish identity on the part of nonobservant Jews have compelling implications for how religious authorities should relate to them.Footnote ⁶⁷ In the words of Sagi and Zohar, “At the moment when this person confirms his/her Jewish identification…there is no justification for the members of the collective to alienate themselves from him/her.”Footnote ⁶⁸

This brief discussion of Hirshenson sheds further light on Ehrentreu's efforts to sustain the Jewish identity of those who chose cremation yet demanded burial in a Jewish cemetery. For one, Ehrentreu perceived that most Jews who asked to be cremated did not do so in order to debunk hallowed concepts such as “the world to come” and “the resurrection of the dead.” Instead, they were convinced by scientific and medical data that this was the ideal method for disposal of their bodies. This explanation bears similarities to that of Hirshenson, who judged somewhat favorably those who—because of their intellectual honesty rather than any core heretical impulse—had adopted practices that went against Jewish law. Ehrentreu's contention, moreover, that “the true evildoers are those who refuse to enter the Israelite congregation either in life or in death and do not ask that their ashes be brought to Israelite burial” bears a distinct resemblance to Hirshenson's portrayal of “principled assimilationists” who sometimes attend synagogue. In fact, theoretically such a parallel could even encourage a lenient approach regarding those who rejected the world to come and resurrection outright but still desired Jewish interment. Both rabbinic figures maintained that unpious individuals’ decision to be counted within frameworks dedicated to Jewish collective existence (albeit postmortem in the case of burial) substantiated their membership in the fold. Applying Sagi and Zohar's interpretation of Hirshenson to Ehrentreu, the polemic with Lerner over burial of cremation-ashes facilitated his articulation of a German Jewish identity predicated on ethnic rather than religious factors. This form of Jewishness was certainly incomplete, but it was sufficiently meaningful to counterbalance the deleterious implications of extreme acts of deviance, most prominently the demand to be cremated.Footnote ⁶⁹

To be sure, Hirshenson was even more radical. He made explicit his willingness to countenance openly heretical individuals, whereas Ehrentreu preferred to assume that his constituents' sinful acts were more pragmatically inspired. Hirshenson also gave credence to positive activity—synagogue attendance—that only took place occasionally, while Ehrentreu's defense related to burial, a so-to-speak “permanent declaration of allegiance.” At the same time, Ehrentreu's very adoption of an ethnic approach is astonishing. Unlike both Kook and Hirshenson, he was far from sympathetic to Zionism. In fact in 1921 he was actually elected by the German Orthodox rabbis as their representative on the Moetzes Gedolei ha-Torah, the council of Torah Sages of the anti-Zionist Agudath Israel movement.Footnote ⁷⁰

Between Enclave and Hierarchy

Notwithstanding Ehrentreu's impassioned defense of the core Jewish identity of those who had chosen cremation, the practical ruling of Hirsch regarding burial of the ashes that his son-in-law Ehrentreu championed would appear to undercut his sharp critique of Lerner. That is, if Ehrentreu truly equated cremationists with other contemporary sinners who were included fully in the Jewish collective, why did he and his mentor persist in denying them full burial honors and relegate their remains to a separate area, while allowing Sabbath desecraters and the like to be interred within the “normative” areas?

This seeming internal contradiction in the position of Ehrentreu, I suggest, is indicative of a fundamental approach toward Jewish identity that stood at the core of the ruling first put forward by his father-in-law, Markus Hirsch. A more careful analysis of its conceptual basis will yield a deeper appreciation of Ehrentreu's ideological duel with Lerner.

In my examinations of the various nineteenth-century responses to the status of the nonobservant Jew, I articulated a basic dichotomy between those Orthodox figures who promoted an enclavist or sectarian posture and those following the Ettlinger's lead, whom I termed “hierarchists.” The former, even if they sometimes ruled leniently on an individual level, maintained the basic stance that divergence from traditional standards of religious behavior or beliefs placed a person beyond the pale of normative Jewish identity. Efforts were made by this camp to focus on “in-out” boundaries and highlight the fact that the observant Orthodox and all other Jews were at most nominally connected to each other, if not completely separate entities. To be sure, this approach itself was a departure from the premodern condition in which all Jews living in a given area—other than formal apostates—were assumed to be part and parcel of the local Jewish community.Footnote ⁷¹

The hierarchical position that gained currency in the mid-nineteenth century, by contrast, avoided the sectarian tendency to define an individual as either within the margin or beyond it. It operated instead on the principle that anthropologist Mary Douglas describes as “downgrading.”Footnote ⁷² That is, under modern circumstances just about all Jews, regardless of their behavior, were considered to be members of an expansive collective. This union, however, was structured as a hierarchy, with the top or ideal level occupied by the observant Orthodox alone. Rather than being excluded altogether, the nonobservant were included but “downgraded” to a lower point within the collective. Such “internal” boundaries were expressed through the use of formal as well as symbolic divisions. In Ettlinger's example, based on the tinok she-nishbah concept he permitted the ingestion of wine touched by a public Sabbath desecrater, yet he encouraged God-fearing Jews to avoid making use of this leniency—thus maintaining an internal distinction between his Orthodox followers and other Jews. Similarly, Rabbi David Ẓvi Hoffmann of Berlin consented to the inclusion of public Sabbath desecraters in the count for a prayer quorum, but urged Orthodox Jews to make efforts to find a service predicated on at least ten “kosher” Jews.Footnote ⁷³

For those Orthodox who were intent on or felt compelled to engage their nonobservant brethren, this strategy acknowledged the change in the social circumstances and religious lifestyle of most Jews, without undermining religious values. The notion of full-fledged ostracism of others was abandoned, but not the core commitment to observance of the halakhah as the ideal or preferred standard. The fusion of these ostensibly incompatible tendencies is encapsulated in the words of anthropologist Louis Dumont: “Hierarchy is… a relation that can succinctly be called ‘the encompassing of the contrary’….”Footnote ⁷⁴

The competing positions of the Hirsch/Ehrentreu and Lerner camps regarding burial of cremation-ashes both highlight and challenge the utility of the enclavist/hierarchist divide for appreciating early twentieth-century German Orthodoxy.Footnote ⁷⁵ Lerner's outlook was rooted, I suggest, within the enclavist approach. In light of the loss of all civil authority and the transformation of Jewish communal life into an essentially voluntary setting, the cemetery remained one of the last vehicles at his disposal for articulating this underlying position. Yet due to widespread nonobservance he was compelled to adjust the criteria for ruling a person outside the boundaries of Jewish life. Thus, he acquiesced regarding the burial of numerous contemporary sinners such as Sabbath desecraters. In denying any type of Jewish burial for cremationists, then, he was not only expressing his disdain for this specific infraction. He was declaring that even within the highly heterogeneous German Jewish society in which he lived, deviant acts could still be isolated that placed an individual beyond the margin of normative Jewish identity. By doing so, the enclave was reconstituted, so to speak, but not obliterated. Its essential appraisal of how to define Jewish identity remained intact, with cremation and burial as the new central litmus test.

The 1901 cremation responsum of Rabbi Markus Hirsch of Hamburg, in contrast, articulates a classic hierarchical solution. It exemplifies the tension between the desire to refrain from completely writing off contemporary Jews of any type and the need to declare that cremationists were unqualified sinners who had alienated themselves from core elements of Jewish existence. The former was accomplished by allowing their ashes to be interred in the Jewish cemetery. In declaring, however, that those who demanded cremation were poreshim mi-darkei ha-ẓibbur and not entitled to any of the normal postmortem honors, Hirsch asserted that through their behavior they had to be “downgraded” dramatically in relation to other more upright Jews. His stipulation, furthermore, that they be buried in a separate and distinct area of the cemetery concretized the permanent and visually symbolic character of this internal boundary.

The utility of this strategy gains support from Norbert Fischer's work on the social role of cremation during its initial development within broader German life. He argues that by creating independent industrial means for the disposal of bodies, as well as new frameworks for preservation of the ashes, the cremation movement distanced people from the church, thus weakening the reach of this institution and advancing the secularization process. With such an option available, even in death Christians were no longer dependent on church functionaries or religious services.Footnote ⁷⁶ An analogous direction is advanced quite assertively by Jennifer Leaney: the Catholic Church opposed cremation because “the horror and repugnance which the grave inspires are among the most efficacious instruments of the hobgoblin machinery of which Catholic rhetoric makes use in order to humble the faithful.”Footnote ⁷⁷ The Hirsch/Ehrentreu camp, while theologically at an opposite point on the spectrum, appear to be similarly cognizant of the danger of irrelevance. By cultivating a policy that preserved the role of the Jewish community in the burial process, but without granting approval to the act of cremation itself, they advanced a relatively beneficent approach to the Jewish identity of their nonobservant contemporaries. In parallel, they also created a dynamic that could safeguard at least one aspect of the role of Jewish religious institutions in the lives of most German Jews—provision of a final resting place.

Returning to Ehrentreu's challenge to the Altona rabbi, then, the fact still remains that he called Lerner to task for differentiating between all other contemporary sinners and cremationists. Yet had not he and Hirsch done essentially the same thing within the cemetery through their hierarchical ruling stipulating that only the cremationists were to be denied all burial honors and needed to be interred in a separate section?

The assumption that underlies this seeming contradiction is that in the eyes of Ehrentreu the delinquency of the cremationists was qualitatively more severe than that of other contemporary nonobservant Jews—but this was not necessarily the case. Even if he considered them no less sinful than public Sabbath desecraters, from a practical perspective he could have found reason to treat them more harshly. For one, while the preponderance of everyday nonobservance in the early 1900s was already a fait accompli, cremation was still the precinct of a small minority. Thus, even if there were no doubts regarding the core Jewish identity of those cremated, the stricter sanctions may have stemmed simply from the conviction that in their case it was still possible to deter individuals from adopting this additional display of irreverence to long-held values. It should be noted as well that unlike other derelictions, the offense of cremation related directly to the sanctified cemetery environment itself. The internal boundary placement, then, functioned figuratively to protect the authenticity of traditional cemetery practice. By burying the ashes in a separate section, a statement was being made that as Jewish remains, they were entitled to burial within the borders of the Jewish grounds. Nonetheless, due to the affront of their behavior toward this holy environment, they would be cordoned off into an independent “cemetery within a cemetery.” Finally, although not mentioned by Hirsch in his original responsum, Ehrentreu drew support for their position from a ruling on the same topic that had already been rendered in 1888 by Rabbi Nathan Adler (1803–90), the chief rabbi of England's United Synagogue. This decision, asserted the latter, had also received the imprimatur of Rabbi Isaac Elḥanan Spektor (1817–96) of Kovno, the preeminent Jewish religious adjudicator of the time, who stated explicitly that the ashes should be buried within the limits of the Jewish cemetery but in a separate portion.Footnote ⁷⁸ According to Ehrentreu, Rabbi Azriel Hildesheimer (1820–99), the rector of the Orthodox rabbinical seminary and rabbi of the separatist Orthodox community in Berlin, and Rabbi Mordechai (Marcus) Horovitz (1844–1919) of the nonseparatist Orthodox Jewish wing (gemeindeorthodoxe) in Frankfurt had also made the same recommendation.Footnote ⁷⁹ On this level Hirsch was simply following the lead of like-minded authorities who had preceded him.

A New Boundary Marker

A case can be made, nevertheless, that Ehrentreu agreed with Lerner that under current circumstances cremation was a particularly degenerate act due to specific characteristics that distinguished it from other major foibles. Where their paths parted was in their respective evaluations of the nature of its depravity, and this was manifest in their dispute over interment.

For Lerner there was no doubt that, in distinction to public Sabbath desecraters, the root cause for all those who demanded cremation was a denial of fundamental Jewish dogmas.Footnote ⁸⁰ As he asserted, a cursory reading of Die Flamme (The Flame), the Berlin-based official publication of the secular association for promotion of cremation, made abundantly clear that “their intention is through cremation to undermine the entire foundation of faith in the awakening of the deceased and the eternity of the soul. Thus, even if an individual could be found who requested cremation for another reason, their opinion was subsumed (“batel”) within the majority of deniers and heretics.”Footnote ⁸¹

Ehrentreu was also well aware that some cremationists’ critiques were theologically driven, but his own experience convinced him that generalizing to most of them was inaccurate and hurtful. To illustrate this point, he described a case with which he had dealt in Munich. An eighty-year-old member of the community asked that his body be cremated after death. He stated explicitly that he did not have any ideological ax to grind such as doubting belief in corporeal resurrection. Rather he had read documented cases of people who were thought to have expired but had not and ended up suffering horrific deaths of asphyxiation after burial.Footnote ⁸² While Ehrentreu would not condone this person's decision, he felt that it would be inappropriate to deny him the basic right of interment in a Jewish cemetery. The cremation request was unquestionably unacceptable, but it stemmed from fear and did not constitute outright heresy.Footnote ⁸³

If this was his appraisal of the situation, why did Ehrentreu still persist in preventing the ḥevra kadisha from ministering to this innocent elderly man and insist that his ashes be buried in a separate section of the cemetery? A persuasive explanation emerges from a key passage in Ehrentreu's description of the case at hand: “Heaven forbid that I should plead his merit, for he booted the positive commandment of burial, and separated himself from the Israelite congregation, nevertheless there are no grounds for saying that he rejected corporeal resurrection….” (author's emphasis).Footnote ⁸⁴ Despite his theological innocence, this man had committed a grievous offense. By requesting cremation, regardless of his motivation, he had detached himself from the still recognized conventions of his brethren. As opposed to Sabbath observance or dietary restrictions, traditional interment remained the standard. Abandoning it did not erase the perpetrator's membership in the Jewish people, but it marked him as a “deviant” who was distinct from the normative group. Thus, the hierarchical dynamic exemplified by setting the graves for cremation-ashes apart from the main burial section reinforced the ambivalent position of Judaism regarding these deceased individuals. Through their unfortunate behavior, they were transformed from full-fledged members of the congregation into “others” whose location at the periphery mirrored their downgraded standing.

The Hirsch/Ehrentreu position, then, resulted from parallel efforts to avoid alienating a rising number of contemporary communal constituents, while simultaneously fortifying the role of religious rectitude in regard to burial as a lingering commonality that still unified most Jews. Indeed, this balancing act emerges already from the initial responsum of Hirsch, who wrote: “but the ash is buried in a special, out of the way place, far from the graves of upright [kosher] people ('anashim kesherim).”Footnote ⁸⁵ All Jews who chose to be interred in the communal cemetery had a space within the modern Jewish collective, but only those who followed the traditional burial rites received the imprimatur of “kosher” people that meant full membership in the core stratum.

The Last Vestige of Common Religious Values

Human societies, maintained Emile Durkheim, regularly utilize classification of certain individuals and behaviors outside the normative realm as a means to coalesce their own mainstreams. In 1892 he wrote: “The deviant act…creates a sense of mutuality among the people of a community by supplying a focus for group feeling. Like a war, a flood, or some other emergency, deviance makes people more alert to the interests they share in common and it draws attention to those values which constitute the ‘collective conscience’ of the community.”Footnote ⁸⁶ Application of this perception—which is known as the “functional” approach to deviance—will illuminate additional nuances of both the Hirsch/Ehrentrau and Lerner camps as well as distinctions between them. Moreover, it will advance further the stated aim of examining what underlay the emergence of cremation and burial of the ashes as such a powerful symbol for marking the outer boundary of the Jewish collective in early twentieth-century Germany.

At first glance, ostracization of individuals due to their deviant behavior would seem a more apt description of Lerner's enclavist policies than of those of Rabbis Hirsch and Ehrentreu. By casting out the cremationists altogether he sought to engender the unification of the “true” Jews around their common support of traditional burial practice. Ehrentreu, in contrast, retreated from the very idea that a contemporary Jew could be completely stripped of his or her Jewish identity due to delinquency in religious behavior. Yet the analysis above demonstrates that, like his rival, he also saw cremation as a boundary-definition issue. His difference was in his understanding of the symbolic meaning of this deviance. For him cremation marked an internal gradation within the broader Jewish hierarchy rather than one that stood past its outer rim.

This common acknowledgment of the marginal status of cremation demonstrates the significance of this issue for evaluating fundamental transformations in German Orthodoxy that move beyond the particulars of the Hamburg region dispute. The discussion cited earlier of distinctions between cremation and other more “classical” sins highlights changes that had transpired within German Orthodox discourse since the mid-nineteenth century. Rabbinic debates of the previous generations had focused on the degree to which regular (daily or weekly) acts of nonobservance such as public Sabbath desecration relegated a Jew to pariah standing or diminished a person's stature within the hierarchy. Despite their sharp disagreements, both Lerner and Ehrentreu acknowledged that in their day most examples of nonobservance no longer cast deep-seated aspersions on an individual's connection to the Jewish collective. Cremation, as such, was not only a new boundary marker, but it served as one of the few remaining ones with broad significance for assessing a person's essential Jewish identity.Footnote ⁸⁷

This transition offers a case in point for the more general assertion of sociologist Kai Erikson that “[b]oundaries are never a fixed property of any community…. Sometimes changes occur in the surrounding environment, altering that against which the people of the group have measured their own uniqueness.”Footnote ⁸⁸ Regarding German Jewry, the decline of Sabbath observance from 50 percent to less than 30 percent in the course of about a half a century would appear to have been the decisive “change…in the surrounding environment” that necessitated the emergence of a new boundary symbol. As their contemporary David Ẓvi Hoffmann lamented, “…the God-fearing in our times are the ones who are called ‘separate’ and ‘distinct,’ while the sinners are the ones who follow the ways of the land.”Footnote ⁸⁹ Quite serendipitously, the parallel development of cremation technology and its adoption as a “progressive” means for dealing with human remains triggered what sociologists Erich Goode and Nachman Ben-Yehuda refer to as a “moral panic.”Footnote ⁹⁰ This scientific and industrial innovation, and the social change that it fueled, provided a novel and utilitarian delineation vehicle. It enabled Orthodox rabbis to maintain the position that certain behaviors stood in contradiction to fundamental principles of Jewish identity, while avoiding the need to apply sanctions to the vast majority of members of their communities.

To be sure, cremation was not merely a relatively new deviation against which a broad-based Jewish consensus could be built. The act itself is endowed with unique characteristics and symbolic meanings that distinguish it from nearly all other types of religious delinquency. This supplies additional perspective on its utility and potency as a boundary marker at this juncture in German Jewish history. On the one hand, it is an isolated one-time act that takes place after death. By choosing to focus sanctions on it, rabbinic authorities limited the prospects for ongoing, antagonistic confrontations between themselves and nonobservant Jews within their communities. Had they attempted to continue highlighting Sabbath desecration as a major boundary issue, for example, conflicts with Jews in their locales would have only escalated. On the other hand, issues related to death and final interment touched individuals viscerally. Indeed, for many if not most Jews the very idea of being buried outside the Jewish cemetery represented a far more profound level of detachment from their forefathers than any religious deviance during their lifetimes.Footnote ⁹¹ As such, the threat of refusal to bury or even of placement in a section intended for outcasts was potentially effective. Moreover, as a new phenomenon that drew opposition from authorities across the religious spectrum, cremation itself could reasonably be put forward by the rabbis as a particularly radical act of disengagement from the long-held traditions of prior generations. Those who nevertheless asked to be cremated would then be identified as modern-style apostates completely outside the margin (Lerner), or, at best, figures that existed on the periphery of the Jewish hierarchical collective (Hirsch/Ehrentreu).

Communal versus Familial Identity

Rabbi David Ẓvi Hoffmann was arguably the most prominent German Orthodox rabbinic authority at the turn of the twentieth century. Officially, he served as head of the religious court associated with the separatist Orthodox community, Adass Jisroel, in Berlin, and professor (later rector) of the Berlin Rabbiner Seminar founded by Azriel Hildesheimer. He was also a close colleague of Rabbis Hirsch and Ehrentreu, and mentor to Lerner from his student days at the institution in Berlin.Footnote ⁹²

In my work on Orthodox attitudes toward nonobservance, I examined at length the approach of Hoffmann and concluded that his was a distinctly hierarchical position that was instrumental in broadening the borders of the Jewish collective further than almost all the German Orthodox rabbis of his generation. Simultaneously Hoffmann introduced internal boundaries that distinguished between observant Jews and various types of transgressors. It was noted, furthermore, that he also divided among the “sinners” themselves, for example, between public Sabbath desecraters and those who were not circumcised. Under prevailing conditions in his time he found the latter's transgression to be a far more acute deviation from normative Jewish identity. In light of this analysis, and especially in view of Hoffmann's relationship to all three main actors in the Hamburg cremation controversy, it is valuable to explore how Hoffmann addressed the subject of cremation and burial of the ashes.

There are three sources to draw from in order to determine Hoffmann's approach to burial of cremation-ashes: a letter responding to Lerner's call for support that was printed in Ḥayei ‘olam and two more expansive rulings published in Hoffmann's own collection, Melammed le-ho‘il. All three, as it turns out, are marked by an ambivalence that seems to reflect both the author's discomfort with adopting a fully exclusionary position and his personal connections to the different sides of the conflict. In point of fact, there is a clear shift in his position over time.

In 1903, Hoffmann penned a brief answer to Lerner's query requesting backing for his campaign. The paragraph states that burial of cremation-ashes in a Jewish cemetery should be forbidden in order to prevent the spread of this practice (le-migdar miltah). Yet Hoffmann asserts that from a purely legal perspective placement of the ashes “on the side, far from the graves” is allowed. He also maintains that it is wrong to assume that those who ask to be cremated do so out of spite (le-hakhʿis) toward Jewish tradition. On the contrary, their motivations are either fear of asphyxiation in the case where those declaring them to be dead were mistaken or hygienic concerns. Finally, Hoffmann encourages the reader to look at his initial discussion of the topic from 1897–98.Footnote ⁹³

Formally, then, the 1903 letter supports the position of his student Lerner, based on the assumption that the strict approach will curtail the proliferation of cremation among German Jewry. However, the nuances make clear that Hoffmann had a very different perception of the meaning of cremation for Jews of his day. First, he disagrees with the claim that according to Jewish law it was forbidden to inter cremation-ashes. In fact he even notes the solution of Lerner's nemesis, Markus Hirsch (without mentioning him by name)—creating a separate burial area within the Jewish cemetery. Those who respected Hoffmann but retreated from his decisive strategy regarding how to prevent the spread of cremation could find solace in this statement. In addition, by stressing that the cremationists were not necessarily heretically motivated, he undermined Lerner's efforts to transform them into the most hideous of contemporary sinners who were to be completely cast out.

These themes are treated in greater detail in Hoffmann's original responsum from 1897–98. Examination of this text only solidifies the sense that despite his agreement with Lerner's practical ruling, the Berlin authority's view of the social and religious import of cremation was thoroughly different. In his discussion in this responsum, which was written prior to the outbreak of the Hamburg controversy, Hoffmann produces additional legal claims that diverge from Lerner's position. The Berlin rabbi states explicitly that despite the lack of a biblical burial requirement the ashes still must be concealed (li-genoz) so that people would not transgress the prohibition of gaining benefit from human remains. This was exactly the argument used by Markus Hirsch in his responsum to justify interment inside the Hamburg Jewish cemetery. Still, Hoffmann rules that forbidding assignment to the communal burial ground is justified so as not to strengthen the hands of the transgressors. All the same, aware as he was that the “Gaon” Hirsch of Hamburg permitted “placement” (hatmanah) in a separate section, he concludes: “On this it can be said, one cannot compare one place to another, and if in Hamburg there is no apprehension about granting permission…in most places in Germany there is reason to be concerned…therefore it is better not to allow anything, even though according to the law there is no prohibition.”Footnote ⁹⁴

For Hoffmann, then, the only compelling reason to forbid burial of the ashes was tactical—would it help prevent the spread of cremation and preserve commitment to traditional Jewish custom? Furthermore, in acknowledging that different factors informed the leaders of every respective Jewish community, he not only expressed his personal respect for Markus Hirsch, but also made clear that he considered his colleague's decision to be authoritative for the Jews of Hamburg.Footnote ⁹⁵ As such, Hoffmann's reference to this earlier responsum five years later in Ḥayei ‘olam only reinforces the sense of his ambivalence regarding the strident and unequivocal way in which Lerner was advancing his cause.

By the second decade of the twentieth century Hoffmann went much further, consciously negating his initial pragmatic negative decision,

In 1897–98 and in 1903 as well, Hoffmann saw the semi-inclusive Hamburg approach as an exception and believed that the strict position was still appropriate for most communities. Here, by contrast, he spells out his final acceptance of the Hirsch/Ehrentreu position and rejection of the Lerner outlook as a viable alternative for the majority of German Jewry. Without receiving a full explanation, the reader can infer that the stricter strategy had not stood in the way of Jews’ adoption of cremation. As the numbers rose, in the eyes of Hoffmann the issue transformed from one of prevention of cremation itself to one of preservation of at least a symbolic distinction between ideal and grudgingly tolerated behaviors. This could be accomplished most effectively by strengthening the hierarchical solution that allowed for all to be buried in the communal cemetery but strove to establish concrete internal boundaries between the core that had remained loyal to traditional burial and the lower-level “others.” This tactical change, it should be emphasized, was achieved relatively smoothly because from the outset Hoffmann had made clear that he disagreed with Lerner in as far as legal reasoning was concerned.Footnote ⁹⁷ Thus, even as he altered his bottom-line decision, he did not stray from his initial perception of the fundamental principles of the case.

The hierarchical nature of Hoffmann's decision is manifest in a noteworthy adjudicatory discussion that at first glance has only limited pragmatic application. Based on a number of sources, he distinguishes between the community, which may not necessarily be required to ensure the burial of cremation-ashes, and relatives, who are unequivocally obligated to do so. His reasoning is that the connection and responsibility of family members to inter their deceased kin begins at the moment of death, when the body is still intact and all would agree that burial is required. The community, by contrast, only becomes formally involved at a point at which the corpse has already been transformed to ashes and the family makes arrangements for interment. At that juncture the debate as to the need to bury the ashes becomes relevant. All the same, once the family has been compelled to fulfill this role, “we are not permitted to lock the cemetery in the face of relatives who wish to bury the ashes and are biblically required to do so.”Footnote ⁹⁸

From a legal standpoint, this line of reasoning leads to the theoretical conclusion that even if a cremated person is a lifelong member of the community, if no blood relatives accept responsibility for burial then the board would not be required to inter his/her ashes. More broadly, this division between family and community has implications regarding underlying matters of Jewish identity as well. Scholars have discussed at length the challenges in the modern Western world to the ethnic-church synthesis that historically characterized Jewish life.Footnote ⁹⁹ Under the fresh circumstances, connection between Jewish collective and religious identities was no longer axiomatic, and numerous secular formulations emerged that disparaged or at the least were not dependent on a religious element. Yet a sense of “fraternity” between all born Jews who did not formally reject this bond—that was independent of religious practice or theology—remained intact.Footnote ¹⁰⁰ Hoffmann's legal division implies that a person who asked to be cremated, while not officially becoming an apostate, may have detached him/herself altogether from the ethnic/communal level of solidarity. What remained was essentially an individual whose ties to both the ethnic and church aspects of Judaism were nearly totally severed. This was unlike Ehrentreu, whose approach, recall, bore similarities to the ethnic outlook articulated in the United States by Ḥayim Hirshenson.

That said, according to Hoffmann the person was still not completely devoid of Jewishness. A bloodline via his/her family existed that ran between the perpetrator of this act and other Jews who were still fully attached to the collective. Minimal and indirect as the tie had become, it was still sufficient to serve as a conduit that would enable burial within the Jewish communal cemetery. The born Jew who chose cremation, then, remained within the Jewish hierarchy but at the lowest possible rung.

On a legal level, this distinction between family and community was especially useful and illustrates the depth of Hoffmann's analytical capabilities. Recall that within the discussion above of Ehrentreu's defense of ash-burial, the point was made that if he thought the cremationists also fit under the category of “infants taken captive,” why did he nevertheless support burying them in a separate section? The Munich rabbi did not supply a clear answer. Hoffmann detected this conundrum; as he put it, “clearly the custom is to bury evildoers, even if they no longer display a single drop of Judaism and have committed transgressions for which the punishment is excommunication (“karet”) or execution by the court.” The Berlin authority, as such, was attentive to the logical difficulty of sustaining the internal boundary that separated cremationists from all other modern-day transgressors. Once the vast majority of the most serious sinners were overlooked in the context of the cemetery, why single out the cremationists?

His conclusion, nevertheless, was that that they be isolated: “a special area should be assigned for burial of the ashes in order to distinguish…between communal burial and the interment of individuals (“yehidim”) that was not incumbent upon the congregation (“kahal”).”Footnote ¹⁰¹ In other words, what made cremation different from all other offenses was that it suspended the direct link between the person and the collective. That which remained was an individual, a solitary figure who was allowed inside the confines of the cemetery only because of familial association and not due to any intrinsic quality that he/she possessed. Notwithstanding, Hoffmann's nominal perception of the Jewishness of the cremationists was still more significant than that of Lerner, who refused to allow burial of their ashes altogether and maintained that they “have absolutely no vestige of Judaism left in them.”Footnote ¹⁰²

Hoffmann brought his discussion to a close by listing operative policies for dealing with cremation-ashes within Jewish communal cemeteries. The vast majority of his directives are nearly identical to those rendered by Markus Hirsch and published in the 1901 work Beit Yisrael. Yet there is one fundamental difference between the two figures that also comes across. According to Hoffmann,

On one level this split between separatist and united communities reflects Hoffmann's professional obligation to support the policies of his own independent Berlin Adass Jisroel community in which the burial of cremation-ashes was most certainly prohibited. Indeed, Adass Jisroel had established its own cemetery already in 1873 so that its members could be assured that they would be buried in an environment that fully respected traditional practice.Footnote ¹⁰⁴ From another perspective, however, having reversed his previous decision and allowed burial of cremation-ashes, Hoffmann nevertheless saw value in attempting to sustain oases in which the “blight” of cremation was still avoided. Even regarding the separatist cemeteries, however, he contradicted Lerner's enclavist understanding by clarifying that if by chance a communal member did choose cremation and asked to be buried in the cemetery, a distant plot had to be allocated.

This multiple-level approach highlights Hoffmann's position as an authority for all German Orthodoxy, and not purely for a specific local community. Simultaneously, it also illustrates the fact that he was personally connected to a separatist framework that was far less diverse than most German Jewish communities and echoes his comment from 1897–98 that “one cannot compare one place to another,” which tacitly approved of Markus Hirsch's permissive ruling for Hamburg. Yet, over a decade later, Hoffmann saw the position allowing burial of cremation-ashes to be appropriate for most German communities, while the strict policy once deemed the majority one was now to be limited to a few highly particularistic frameworks. Nonetheless, in Hoffmann's formulation, as opposed to that of Markus Hirsch, the talmudic principle that “evildoers should not be buried next to righteous ones” was preserved formally through the maintenance of exclusively Orthodox, private cemeteries in which the traditional ideal could be more easily enforced.Footnote ¹⁰⁵

The final result of Hoffmann's latest decision on cremation, then, was the articulation of two parallel types of hierarchical dynamics. One applied to most Jewish cemeteries and sequestered a section for the interred ashes of those who asked to be cremated, one that was to remain separate from the burial places of all other local Jews. The second distinguished between such “integrated” Jewish communal burial grounds as a whole and exclusively Orthodox ones that were designated for those who remained loyal to Jewish law both in life and in death.Footnote ¹⁰⁶ Thus, even as cremation emerged in the early twentieth century as a definitive symbolic boundary marker for a broader normative Jewish identity, prior distinctions between observant and nonobservant Jews were by no means rendered completely obsolete.

Epilogue: Frankfurt 1938

The symbolic meaning of cremation for German Orthodoxy that has been observed here was transformed dramatically by the catastrophic events that took place in areas controlled by the Nazi government and its allies from the 1930s. Thus imagine my initial surprise when I came across a document in which the two seemingly opposite aspects of cremation and its role in Jewish identity formation converge.

Kristallnacht (Night of the Broken Glass) is the name that was given for the infamous events of November 9–10, 1938, when Jewish property was vandalized and hundreds of synagogues destroyed throughout Germany. A fact less well known is that at the time approximately 25,000 German Jews were arrested and sent to concentration camps—Buchenwald, Dachau, and Sachsenhausen. Most were released within weeks or months, but hundreds were killed or died of illness and deprivation during their incarceration. The practice of the Nazis was to cremate these bodies without consulting the families.Footnote ¹⁰⁹ Difficult as it is to comprehend, at this stage in their campaign against the Jews they were willing (sometimes for a fee) to return the ashes of the deceased to their loved ones.Footnote ¹¹⁰

For Rabbi Menaḥem Mendel Kirschbaum (1895–1942), the Orthodox chief rabbi in Frankfurt am Main's united Jewish community, the arrival of such remains raised weighty questions.Footnote ¹¹¹ To be sure, he recognized the unique circumstances of the current situation and especially the fact that the cremation was done against the will of the deceased. Yet he was also cognizant of the relatively recent “legal history” related to cremation and the deep antagonism of all German Orthodox rabbinic figures toward this act. As a matter of fact, Kirschbaum himself had penned a rather ambivalent responsum on burial of cremation-ashes already in 1927, when he still served as a rabbi in Western Galicia. Eerily, he opined at the end of that discussion that “…with God's help [in the future] I will go back and study—no oath taken—this chapter….”Footnote ¹¹²

In the guidelines to the Frankfurt community that he published in 1938 Rabbi Kirschbaum ruled unequivocally that the ashes of the Kristallnacht concentration-camp victims should be placed in a coffin and were certainly deserving of an honorable Jewish burial.Footnote ¹¹³ Striking, nonetheless, is the fact that in the support that he offered for his decision he created a direct association between this new, tragic Jewish encounter with cremation and precedent from previous debates:

Kirschbaum was quite aware of the differences between earlier discussions and the case that he was addressing. Yet he still saw fit to cite his well-regarded predecessor's lenient decision regarding those who were “willingly” cremated in order to buttress his present ruling regarding some of the first Jewish casualties of Nazism. Tragically, after this time Kirschbaum had no more opportunities to revisit this issue. He escaped from Frankfurt to Brussels in 1939 but was eventually deported to Auschwitz and murdered there in the fall of 1942.Footnote ¹¹⁵

Legalistic discourse such as that described here is predicated on offering precedent from similar events, even when their respective contexts are completely different. As a religious adjudicator, then, it was perfectly natural for Kirschbaum to cite earlier sources regarding burial of the ashes of the cremated. When viewed through the eyes of the post-Holocaust Jew, however, such connections between those who chose to have their remains cremated with the masses of Jews who were forcefully dehumanized by the Nazis both in life and after death appears awkward at best, if not offensive. In an age in which the crematoria of Auschwitz have become symbols for innocent suffering and industrialized cruelty,Footnote ¹¹⁶ raising parallels between the victims and those who were deemed by many to be undeserving of the most minimal honor, strikes a nerve. Such ambivalence was expressed by the scholar and bibliographer Rabbi Solomon Joseph Zevin (1885–1978) in 1959 when summarizing Kirschbaum's statutes. Diverging openly from his usual practice of critiquing a work that he had described, he declared: “Regarding some of these statutes there may be room to debate from the perspective of the halakhah, but—‘remove your sandals from your feet, for the place on which you stand is holy ground’ (Exodus 3:5).”Footnote ¹¹⁷

Without losing sight of the delicate nature of the subject, in the context of the current paper the linkage between the turn-of-the-twentieth-century burial controversy and the Holocaust nonetheless highlights the ongoing role of cremation in twentieth-century Jewish identity formation. If early on it served as an outer boundary or hierarchical marker, after the Holocaust ironically it emerged anew as an unfortunate symbol of elemental inclusion in the Israelite collective.Footnote ¹¹⁸