Yesterday, we posed the question as to the permissibility of kohanim’s visiting Me’arat Ha-makhpeila, the burial site of Avraham, Sara, Yitzchak, Rivka, Yaakov and Leah. We explored one of several issues upon which the question hinges, namely, the halakhic status of our patriarchs and matriarchs. The general consensus among the halakhic authorities follows the view of the Rambam (Hilkhot Tum’at Meit 1:13), who codifies Rabbi Shimon Bar Yochai’s ruling (Yevamot 61a) that one contracts tum’a by directly touching the corpse of a deceased gentile, but not by going over his grave. As we saw, the Shulchan Arukh (Y.D. 372:2) rules that kohanim should preferably avoid going over graves of non-Jews, but later authorities note that when any other point of uncertainty is involved, kohanim may be lenient in this regard. Seemingly, then, if we follow the view that the avot and imahot were technically considered gentiles, as the formal status of a “Jew” took effect only at the time of Matan Torah, we should allow kohanim to visit Me’arat Ha-makhpeila, given the questions that exist surrounding the actual presence of tum’a at the site.
Rav Asher Weiss, however, refutes this argument, in light of Tosefot’s discussion in Masekhet Nazir (54a). Tosefot cite the account in Maseches Bava Batra of Rabbi Bena’a, who placed markers on gravesites so people knew to keep away from tum’a, and the Gemara tells that he placed a marker at the site of Me’arat Ha-makhpeila. If we assume that the avot and imahot, who lived before Matan Torah, had the halakhic status of gentiles, then there seems to have been no reason for Rabbi Bena’a to mark their graves, according to the view the gentile remains transmit tum’a only through direct contact. Tosefot thus raise the question of how to explain Rabbi Bena’a’s insistence on marking Me’arat Ha-makhpeila according to the view of Rabbi Shimon bar Yochai, that one does not become tamei by passing over a gentile’s grave.
To answer this question, Tosefot assert that the graves in Me’arat Ha-makhpeila transmit tum’a regardless of whether or not we classify our avot and imahot as halakhic “Jews,” even according to Rabbi Shimon. The basis for Rabbi Shimon’s distinction between Jews and gentiles in the context of tum’a is the verse in which the Torah introduces the concept of tum’at ohel: “…adam ki yamut be-ohel, kol ha-ba el ha-ohel…yitma” – “…when a person dies in a tent, anyone who comes into the tent…is impure” (Bamidbar 19:14). The Torah here establishes that one can become tamei not only through physical contact with a corpse, but also by simply being together with a corpse under the same roof, and in this context the Torah speaks of an “adam” (commonly translated as “person”). Rabbi Shimon maintained that halakhically speaking, the term “adam” refers specifically to Jews, and therefore the concept of tum’at ohel, whereby one becomes tamei without direct contact with a corpse, by simply being together under the same roof, applies only to Jews.
If so, Tosefot argue, then it stands to reason that Rabbi Shimon would apply tum’at ohel to some of those buried in Me’arat Ha-makhpeila. Tradition teaches that Adam is buried there (though this is not mentioned anywhere in the Chumash), and we might certainly assume that Adam would be included in the verse, “…adam ki yamut be-ohel.” Moreover, Chazal (Shemot Rabba 28:1, Vayikra Rabba 29:8, and elsewhere) explain the verse in Yehoshua that speaks of “ha-adam ha-gadol ba-anakim” as referring to Avraham. Conceivably, then, even if Avraham cannot be halakhically regarded as a “Jew” to due to the fact that he lived before Matan Torah, nevertheless, he would be included in the law of tum’at ohel by virtue of his having earned the title “ha-adam.”
Hence, at least according to Tosefot, kohanim would be forbidden from visiting Me’arat Ha-makhpeila regardless of whether Halakha treats our patriarchs and matriarchs as Jews or as non-Jews.