The opening section of Parashat Chayei-Sara tells of Avraham’s purchase of Me’arat Ha-makhpeila in Chevron, the cave in which he buried Sara, and in which he would later be buried, as would Yitzchak, Rivka, Yaakov and Leah. The site of Me’arat Ha-makhpela, which has been preserved by tradition, was a site of prayer for Kaleiv when he and the other spies came to Eretz Yisrael to scout the land (Sota 34), and is now once again a popular site of prayer.
The popularity of prayer at Me’arat Ha-makhpeila gives rise to the interesting halakhic question as to whether kohanim may visit the site. Kohanim, of course, are forbidden to come in contact with a human corpse, and are thus forbidden from walking over a grave. According to tradition, our patriarchs and matriarchs are buried beneath the contemporary site of Me’arat Ha-makhpeila, and the question thus arises as to whether kohanim are permitted to visit the site.
This question hinges on several different issues, including the halakhic status of our patriarchs and matriarchs. Much has been written on the topic of whether they were halakhically regarded as Jews, or if this status took effect only at Ma’amad Har Sinai. Rashi, in Masekhet Avoda Zara (3a), writes that the patriarchs and matriarchs were formally considered gentiles, as they lived before the covenant of Sinai was established. The Ramban, by contrast, in his commentary to Sefer Vayikra (24:10), writes that they were halakhically regarded as Jews.
This issue is likely relevant to our question as to the permissibility of kohanim visiting Me’arat Ha-makhpeila. According to many halakhic authorities, the laws governing the transmission of tum’a are not the same for the remains of gentiles and those of Jews. A Jewish corpse is subject to the law of tum’at ohel, whereby one contracts tum’a by passing over the corpse or being under the same roof as the corpse. When it comes to the remains of a gentile, however, while it is clear that one becomes tamei by directly touching the corpse, there is a debate among the Tanna’im (Yevamot 61) as to whether tum’at ohel is effective in transmitting tum’a from a gentile corpse. Tosefot (Bava Metzia 114b) followed the majority opinion among the Tanna’im, that there is no distinction between Jewish and gentile remains in this regard. Most other Rishonim, however, most notably the Rambam (Hilkhot Tum’at Meit 1:13), accepted Rabbi Shimon’s view, that tum’a from a gentile corpse is transmitted only through direct contact, and not through the process of tum’at ohel. The Shulchan Arukh (Y.D. 372:2) rules that it is proper for kohanim to avoid walking over the graves of non-Jews, in deference to the stringent ruling of Tosefot. It appears that strictly speaking, Halakha accepts the lenient ruling of the Rambam, though it is advisable to abide by Tosefot’s opinion. Several later Acharonim, including Rabbi Akiva Eiger (Responsa,Mahadura Tanina, 18), write that one may be lenient in this regard if there is some other matter of uncertainty involved.
Accordingly, the question of allowing kohanim to visit Me’arat Ha-makhpeila would seem to hinge on the question of the status of the avot and imahot. If they are halakhically regarded as Jews, then, presumably, kohanim should be forbidden from visiting the site, as they would contract tum’a by stepping above our ancestors’ remains. If, however, the avot and imahot are regarded as gentiles, then it suffices to introduce some other mitigating factor to permit such visits by relying on the view that their graves transmit tum’a only through direct contact. One mitigating factor is the fact that when one walks on one story of a building and a corpse is situated on a lower floor, he becomes tamei only if there is some space in between that allows the tum’a to rise to the higher floor. In the case of Me’arat Ha-makhpeila, there are two doors which are traditionally presumed to lead down to the area where the avot and imahot are buried, and both doors are situated in the section of Me’arat Ha-makhpeila that is under the control of the Arab authorities. As such, there is no possibility of determining at any moment whether these doors are open or closed. In light of this uncertainty – including others, perhaps – one might argue that at least according to Rashi’s view, that the patriarchs and matriarchs are halakhically regarded as gentiles, kohanim are allowed to tread on the floor over their graves at the site of Me’arat Ha-makhpeila.
In truth, however, it is possible that even Rashi would forbid kohanim from visiting Me’arat Ha-makhpeila, as we will iy”H discuss tomorrow.
(Based on a shiur by Rav Asher Weiss)