In memory of a very good friend,
Cilly Eitje-Richheimer z.l. from Amsterdam, 1946-2019
Halacha deals with human life on two levels, the intellectual and the emotional. Life is the constant interaction between the two. To deny one of them is to deny life itself. Halachic demands must therefore function in a dialectical setting. Sometimes they must respond to cold, intellectual human calculation, and other times they must provide guidance during emotional upheavals in life. Mostly, they attempt to bring some purpose into the emotional condition of man so as to return him to the ways of reason and religious thinking.
Only in one case does Halacha allow man’s emotions to have the upper hand with hardly any restraint demanded, or even suggested.
One whose dead relative lies in front of him is exempt from the recital of the Shema and from prayer and from Tefillin and from all positive precepts laid down in the Torah. (Berachoth 17b)
This is a remarkable and revolutionary ruling which runs contrary to conventional halachic thinking. Why would a person whose dead relative is not yet buried be exempt from all precepts? Were the mitzvoth not given to be observed at all times? Since when is one permitted to cancel the commandments?
Moreover, would the fulfillment of mitzvoth at this hour not be of tremendous religious and therapeutic meaning? Would it not be Judaism’s obligation to step in and offer man consolation by demanding his religious commitment and asking him to be even more particular in his devotion to God? Only in that way could he deal with his loss. Why relieve man of his religious obligations at the very time that he is most in need of it?
Even more astonishing is the fact that Halacha’s leniency does not merely allow the person to discontinue the mitzvoth but insists that the person does so. It forbids the Jew to observe the precepts.
By reflecting more deeply, one cannot but marvel at Halacha’s profound insight into human nature. By recognizing the full emotional implications of having lost a relative, Halacha allows and even demands a most unusual condition: momentary heresy.
During the time after death has occurred and burial has not yet taken place, i.e. “when the dead is (literally) still in front of us,” there is no way that man can be fully religious. At this hour, doubt in the justice of God often sets in, accompanied with questions about the very existence of God. How could God have done this to me? Why did He cause my loved one to die? Why should I continue to believe in Him? The mourner’s fright and confusion at this moment are too overwhelming for him to accept any rational argument that, after all, God does exist and knows what He is doing. Halacha tolerates these torturous thoughts and does not try to repress them. By doing so, it reflects great compassion for the suffering human being. “It permitted the mourner to have his way for a while and has ruled that the latter is relieved from all mitzvoth.” Although Halacha is convinced of the eternal existence of the human soul as well as God’s absolute justice, it fully recognizes man’s emotional devastation at this hour and allows him to have heretical views and even act on them: a temporary exemption from the yoke of Heaven.
It may well be that Halacha alludes to something even deeper: By insisting that man stop observing the commandments, it warns him not to fall victim to constant religious certainty. It is impossible for even the most religious person not to have strong doubts about God’s justice, or even His existence, when confronted with death and suffering. Not having these doubts renders authentic religiosity impossible. When one has no doubts, one cannot have certitude. Doubt proves that one is serious about faith. The quest for certainty surely blocks the search for meaning. So, how can one ask the mourner to say a bracha or a tefilla when it is impossible for him to back up any of these words? Those who convince themselves always to be sure and never to doubt fall prey to hypocrisy.
Only after the burial, when the dead is no longer before the mourner, can spiritual healing begin. From that moment onward the mourner is again fully obligated to observe all precepts. Certainly his doubts are still there. But at this stage, by demanding full participation in all the commandments once again, Halacha applies its golden rule of “Na’aseh Venishma” (“we shall do” preceding “we shall hear,” as uttered by the Israelites at Sinai).
Judaism’s recognition of God is not the triumphant outcome of philosophical deduction. It results from the performance of mitzvoth. Through the observance of the commandments we perceive the Commander. In doing, one perceives. In carrying out the word of the Torah, man is ushered back into the everlasting covenant and into the belief of God’s presence. The divine sings in the mitzvoth. After burial, once the shock of what happened has lost some of its impact, Halacha asks man again to make use of his reason. It appeals to his neshama and reminds him that by definition he is a homo religiosus and therefore has no escape from God and His will. The healing process will surely take a long time, but it is set in motion the moment the dead has been buried. There is then a need to go back to life and recognize that one lives in the presence of the Almighty.
 See observations made in Rabbi Joseph Ber Soloveitchik’s Eulogy for the Talner Rebbe, Rabbi M.Z.Twersky z.l., Shiure Harav, by Joseph Epstein., page 67. (Ktav Publishing House, NJ, 1974.)
 See Tosafoth’s remarkable observation (Berachoth 17b, “Patur Me-kriath Shema”) that one can only observe mitzvoth when one is busy with life and not with death.
 The conventional reason for dispensation from precepts at this hour is the halachic ruling, “Osek be-mitzvoth patur mi-mitzvoth.” When one is fully occupied with a mitzvah, in our case the preparations for the burial, one is exempt from all other mitzvoth since one cannot perform two mitzvoth at the same time. This however does not explain why, according to most authorities, other relatives who are not fully occupied with the burial are also forbidden to pray etc. Our interpretation fully explains why this is so.
 It should be noted that the mourner is only forbidden to observe the positive precepts. The prohibitions continue to apply at all times since dispensation from them would create havoc in the person and destroy the fabric of Jewish society. One may also argue that observance of the prohibitions are not so much to fill the need to recognize God, but more to prevent negative conditions which make this recognition much harder. Obviously the mourner, who is already shaken in his beliefs, should not have his doubts reinforced.