A Time to Mourn: Aveilut as Minor Holiday (5782)

Aveilut (the laws of grief and mourning) has no obvious home in the body of halakhah. Consider, for example, the Mishnah’s six topical orders, and contemplate if any serve as an welcome host for a discussion of mourning. The options are Kodshim (Temple rites), Zera’im (agricultural law), Nezikin (torts and civil code), Nashim (nuptials and divorce), Taharot (ritual purity and impurity), and Mo’ed (holidays). A satisfying choice remains elusive. It’s a shame that “none of the above” is not the Mishnah’s seventh order.

Ensuing authors of comprehensive halakhic works faced the same awkward challenge. The Rambam infamously placed his Hilkhot Aveilut in, of all places, the “Book of Judges,” a volume that sets out the political bodies of Jewish self-government. The Tur (followed by the Shulhan Arukh) composed his section on aveilut within Yoreh De’ah, best known for its intricate presentation of Kashrut and Niddah. Grief must go somewhere, after all.

Today, students of aveilut often think of it as a lifecycle topic. Imagine a sefer that begins with birth, milah (circumcision), and customs around baby-naming; that proceeds to childhood education in mitzvot and halakhot relevant to marking Benei Mitzvah; continues with a full treatment of courtship, weddings, and marital life; discusses illness and visiting the sick; and concludes with aveilut. Imagining such a volume is possible—yet studying one is not, as no classic project to organize halakhah around lifecycle lines has yet to succeed.

While contemporary students and medieval writers struggle with where to place aveilut, Hazal felt no such qualms. Their decision when codifying the Mishnah was no accident or unsatisfying last resort, but a natural choice, reflective of Hazal’s unique approach to aveilut itself.

They wrote aveilut as part of Seder Mo’ed (“holidays”), within a tractate Mo’ed Katan (“minor holiday”) that is otherwise devoted to the laws of Hol Ha-Mo’ed. If you want Hazal’s most sustained discourse on mourning, you must make the somewhat counterintuitive journey to Mo’ed Katan 3:5-9 or, in the Talmud, Mo’ed Katan 19a-29a.

This essay attempts to explain why.

Before opening up the sources, let’s open ourselves to the idea of Jewish mourning as fundamentally a calendar phenomenon—akin to Pesah, Purim, or 9th Av. The basic structure of aveilut reflects it. Death and burial set off a precise timeline: a week of Shivah, a month of Sheloshim, a year of grieving for a parent. One can observe the mitzvot of tefillin or Kashrut without consulting a calendar. But in aveilut, calendar is core.

Aveilut is certainly not a “holiday” in the sense of joy and celebration. But it is a “holiday” in the sense of structured time, marked by clear start and end dates, which create a break from regular, workaday life. In Shivah, daily labor is forbidden, replaced by a series of seasonally appropriate mitzvot that, if performed any other week, would be as bizarre and untimely as shaking lulav in the spring. The right “holiday” mitzvot at the right “holiday” time.

In fact, the very concept of “Shivah”—mourning for seven days—hinges on this connection. Why specifically seven? The Talmud (Mo’ed Katan 20a) provides a fascinating answer:

Shivah is seven days long because Pesah and Sukkot are seven days long. Shivah is sometimes one day long because Shavuot is one day long.

If we accept the Talmud’s basic conceit—that the anatomy of mourning ought to match the anatomy of holidays—more details of aveilut fall into place. The Jewish holidays prohibit or otherwise limit work, replacing our weekday errands with obligatory meals, special holiday foods, uncommon holiday dress, and regulations around shaving and haircuts. During Shivah, workday labor is forbidden; one eats an obligatory mourner’s meal (se’udat havra’ah) and by custom, numerous special foods associated with grief; dress is regulated through the torn garment and lack of laundered or new clothing; shaving and hair cuts are prohibited. Most Jewish holidays come with a ritualized preparatory period (the many mitzvot of Erev Pesah, the customs leading to Rosh Hashanah and Yom Kippur, Ta’anit Esther before Purim, and so on). Similarly, Shivah is preceded by the unique practices of aninut (the pre-burial period of shock), effectively a period of “Erev Aveilut.” We “sit” Shivah in what is today a visibly low chair, and we also “sit” the other seven-day Hagim: on Pesah a mitzvah to lean; and on Sukkot a mizvah leisheiv ba-sukkah. Each of these holiday components are found in aveilut.

In a more experiential sense, most Jewish holidays are commemorative, pushing us to remember people and events from the past that we might otherwise forget. With regular workday life interrupted, family, friends, and neighbors gather to reconnect and commemorate together. Aveilut, for so many, mirrors this holiday experience. Aveilut means days set aside to remember and commemorate the life of the deceased, accompanied by loved ones who travel in for the “occasion” and in the presence of neighbors and friends.

Viewing aveilut as a branch of “holiday law” makes sense of the entire institution. We mark mourning just as we would any Jewish holiday. The recipes may be different (Sukkot and aveilut should certainly feel different) but the cookbook is the same. Or, in the volume that the Tannaim edited, Sukkot and aveilut require different sections, but they belong together in Seder Mo’ed.

The aveilut-mo’ed connection is surprisingly compelling. But how firmly did the authors of the Mishnah embrace the connection? What indicates, on the level of text, that Hazal actually considered mourning to be a kind of holiday?

A dive into the mishnayot reveals that Hazal were terrifically consistent in portraying aveilut through the lens of holidays. One might expect that basic elements of aveilut—like burial, funeral, the concept of Shivah, the concept of Sheloshim, and so on—would appear in the Mishnah as part of addressing the straightforward question: “How should a person respond to a relative’s death?” But a quick scan reveals that, while each of those halakhic institutions are discussed, it is towards answering a completely different and rather surprising question:

Apparently, the Mishnah’s primary inquiry is not, “how to mourn” but rather, “how do holidays affect mourning?” Or to put it more boldly in the context of this essay: How do regular Holidays interact with the Mourning Holiday? Core concepts like Shivah, Sheloshim, and funeral behavior are only introduced as a vehicle to better understand what happens when mourning and festivals collide.

From the very first line and in each of the five mishnayot, the topic of calendar conflict appears. Take particular note of Mo’ed Katan 3:7, which is the source of such well-known practices as tearing (keri’ah), sitting on a low chair, and offering words of comfort to the mourners. The Mishnah introduces nine rituals in quick succession, but solely for the purpose of naming what cannot be done when aveilut conflicts with Hol Ha-Mo’ed. Only by discussing what we cannot do on Hol Ha-Mo’ed, does the Mishnah find a way to tell us, implicitly, what we must do at a typical Shivah.

One way to make sense of these organizational choices is to embrace that Hazal viewed aveilut as a holiday, just one with an unusual feature: it can “fall out” at any point of the year. This makes mourning the sole mo’ed capable of producing a holiday scheduling conflict. Yom Kippur will never fall out on Hanukkah—yet aveilut can. Seder Mo’ed spends ten tractates introducing the full line of calendar-stable holidays. Only in the eleventh tractate is it ready to resolve one closing question: What happens if the calendar-floating holiday (aveilut) gets in the way?

Today, we typically encounter the laws of mourning detached from their original framing. We learn these rules in modern guidebooks dedicated solely to mourning or from the Shulhan Arukh, which places them alongside tzedakah, excommunication, and visiting the ill. We thus forget that for the great Sages of old, aveilut was written, framed, and conceived of as one step in experiencing the Jewish holidays.

Hazal treat aveilut as a holiday, to be studied as a sub-branch of holiday law. But why did they set aveilut in, of all places, Mo’ed Katan? How is the mourning holiday related to Hol Ha-Mo’ed?

It is tempting to note that both holidays are in some sense “Katan” (small, minor). Hol Ha-Mo’ed’s mitzvah responsibilities are minor relative to the heavier observances of Yom Tov, and aveilut is itself “small” in one remarkable way. Even if mourning is a holiday, it is a thoroughly personal holiday, commemorating an individual loss, and its obligations fall not on the entire Jewish nation, but one small family set. Perhaps Hol Ha-Mo’ed and aveilut share this massekhet because each is, in its own way, a Mo’ed Katan.

Indeed, these two “small holidays” share one key diminution: a minor prohibition on labor. Shabbat demands a total cessation of melakhah (“labor”; any of the 39 creative processes) and Yom Tov entails a comparable ban. Interestingly, Hol Ha-Mo’ed and aveilut also carry a ban on melakhah, but limited to the colloquial sense of the word “labor.” Big chores, annoying burdens, replacing the bathroom tile, writing up the quarterly review, clocking in at the office—all prohibited on Hol Ha-Mo’ed and during Shivah. Tearing paper towels or operating a cell phone, though melakhah in the technical Shabbat sense, remain fully permitted. Hol Ha-Mo’ed and aveilut are thus related—each a “Mo’ed Katan”—in the sense of sharing a minor ban on melakhah.

That said, nothing in the Mishnah’s legal content or rhetorical choices highlights any of the above connections, or indicates that the Tannaim labeled either holiday as “Katan.” Though the title of their shared tractate is today “Mo’ed Katan,” that phrase was likely unknown to Hazal. Early Mishnah manuscripts and many Rishonim employed a completely different title, “Mashkin” (Irrigate), based on the text’s opening words. Further, the Mishnah itself never mentions the aveilut prohibition on melakhah, leaving the Gemara to introduce it. If the Tannaim placed aveilut within Mo’ed Katan because both are “small” holidays or have “minor” work prohibitions, they were intent on not letting the reader know.

However, there is a more profound and more thematically resonant reason why Hazal would interweave aveilut and Hol Ha-Mo’ed—and this reason is encoded into the content and even poetry of the Mishnah text. To unlock the code, and thus attain a complete sense of Hazal’s unique understanding of mourning in Jewish law, a little background in the laws of Hol Ha-Mo’ed is instructive.

The halakhot of Hol Ha-Mo’ed are shockingly—almost comically—contingent. For example, strenuous work like irrigating a field is quite clearly “labor” and is forbidden on the holiday. And yet, if the field relies on such irrigation and a full week without labor would harm the crop, it becomes permitted (Mo’ed Katan 1:1). A long day of repairing the driveway or weeding the fields easily violates Hol Ha-Mo’ed prohibitions. But when it comes to repairing public streets, the communal need takes precedence; when rabbinical agents wish to inspect fields for forbidden seedlings, their public service outweighs the weeding ban (1:2). R. Eliezer b. Yaakov rules that watering seeds is too laborious to undertake on Hol Ha-Mo’ed; but, if the seeds are particularly thirsty, then it is permitted (1:3). You cannot dig holes to trap pests on Hol Ha-Mo’ed, but in an orchard—where ripe fruit is at stake—go ahead (1:4). Fixing a door is professional labor, which ought to be banned on the holiday; but if a broken door obstructs the holiday spirit, such repairs are fine (1:10). If something important comes up and interrupts your pre-holiday work at the olive press, you may restart the task on Hol Ha-Mo’ed (2:1). Concerned about thieves? Spend the day bringing your produce home. You obviously cannot sell your wares at market, but if you’re short on funds to spend on the festival, feel free to open shop (2:4). For every rule, there is a “but.”

Just imagine if we took this approach to the laws (even the Rabbinic laws) of Shabbat! To an observant person, the thought experiment borders on the absurd. You cannot go into work on Shabbat, unless you are really needed at the office. You cannot sell merchandise, unless it will help with purchasing wine for that day’s Kiddush. You cannot carry on a suburban street without an eruv, but rabbis serving the public interest can. One cannot mend a garment, unless their torn shirt dampens the Shabbos spirit. It is typical of halakhic thinking to offer detailed distinctions about what does and does not constitute work. But it is quite surprising to see those distinctions quickly fade when an extenuating circumstance—public projects, an agricultural setback, a broken door—enters the picture.

Yet that is the nature of hilkhot Hol Ha-Mo’ed: It is the code of extenuating circumstances. Over and over again, the Mishnah offers examples of when its own rules do not apply. Chapter 3 introduces additional Hol Ha-Mo’ed restrictions with the same indulgent relationship to sudden human need. Namely, one is forbidden to shave or launder clothes on Hol Ha-Mo’ed. Since it was then a professional activity, penmanship is likewise banned. And yet, Mishnayot 3:1-3 are an uninterrupted list of all the diverse situations for which one can shave, launder, and write. If one was traveling abroad and arrived home without time to prepare before the holiday, a Hol Ha-Mo’ed trim becomes permitted. One cannot write bills of debt on the holiday, but if the lender does not trust the borrower, then call in the scribes. With so many exceptions, it is common for observant Jews to experience, in our day, almost no sense of restriction on Hol Ha-Mo’ed. In the face of official rulings, real life needs “but” in.

To be clear, there is an ubiquitous role in the annals of halakhah for emergencies and sakanot nefashot (threats to life). With rare exception, any prohibition or obligation (e.g. do not drive on Shabbat) backs away in the face of mortal danger (e.g. on Shabbat, do drive a woman in labor to the hospital). But hilkhot Hol Ha-Mo’ed extends a similar treatment to a wide range of medium-stakes needs and past-tense excuses. Here too, Hol Ha-Mo’ed is not utterly unique. Factors like hefsed (monetary loss) and even tza’ar (discomfort) also have a mitigating role in halakhah. Mere tza’ar undoes the obligation to dwell in a sukkah. But read through Massekhet Sukkah and find but few lines devoted to this principle and zero effort to compile all the various situations in which tza’ar outweighs sukkah. In every other realm of halakhah, extenuating circumstances have to be written into the margins. For hilkhot Hol Ha-Mo’ed, they are the law itself.

VI. Aveilut All Along

Mo’ed Katan, with its focus on Hol Ha-Mo’ed, is the tractate of extenuating circumstances. It is there that the Mishnah addresses those moments in which a personal, real-life need actually trumps the rules. This is precisely why our Sages chose Mo’ed Katan for their discussion of aveilut.

Grief remains—even in our time and culture—the extenuating circumstance par excellence. Persnickety professors acknowledge that a family death means an exam will be missed. Airline call-center bureaucrats issue bereavement refunds. Clients understand that if there was a death in the family, professional obligations will not be met. Note that mourning is not an “emergency” in anything like the pikuah nefesh sense. There is no crisis to resolve, no life to save, nothing left “to do.” And yet, in mourning, one is granted relief from the typical rules that regulate regular time.

It is this feature of mourning that the Tannaim highlight throughout their composition of Mo’ed Katan. The aveilut section occurs only at the tractate’s end (3:5-9); yet grief is present all along. What constitutes a public need? Marking graves (1:2). Though chiseling tombs and crafting coffins is far too laborious for Hol Ha-Mo’ed, an exception is made when a body lays before us (1:6). What is a valid excuse for why your olives are still stuck in the press, such that you justifiably need to work them during the holiday? A death occurred, and the obligations of mourning interrupted your original press time (2:1, 2). Most legal documents may not be written on Hol Ha-Mo’ed. But an exception is made for a deathbed testament (3:3). Aveilut appears in Mo’ed Katan because, from chapter one through chapter three, aveilut is a story of extenuating circumstance.

If you look closely, you’ll find this connection woven into the very poetry of the Mishnah. As a text, Mo’ed Katan is built around a recurring key word: אבל. The term appears 15 times in the short tractate; echoing across all three chapters and marrying the first statement of the Mishnah with the last. אבל is a double entendre. Read one way, these three letters produce “but” (אֲבָל), as in: “the halakha is X, but (אבל) in an extenuating circumstance, it is Y.” Vowelized differently, it means “mourning” (אֵבֶל). The poets of the Mishnah (who inherited an oral text, full of similarly handy memorization tools) jump between the two usages, inviting the reader to pause, in each case, and consider: Does this instance of אבל signal a mitigating factor, an instance of mourning, or both?

Since mourning is the quintessential extenuating circumstance, it is natural for the Mishnah to ask just how far those exculpating powers extend. Can aveilut also suspend the obligations of Purim? Shavuot? Pesah? That question frames the entirety of the aveilut code (3:5-9) and creates a truly unified massekhet. Mo’ed Katan opens with the holiday most susceptible to interference from extenuating circumstances (Hol Ha-Mo’ed), and closes with the extenuating circumstance most likely to interfere with the holidays (aveilut).

Why did Hazal place aveilut in Seder Mo’ed? Because they consider it a holiday practice. Aveilut is a calendar phenomenon, with specific start and end times. Its seven day structure is explicitly borrowed from other holidays; its work stoppage, obligatory meals, customary foods, special clothes, regulated sitting, and limitations on laundry and haircuts all accord with the festival paradigm. But as the only “holiday” without a set calendar date, aveilut forces us to consider what to do when one holiday conflicts with another. Only in answering that question in holiday law, does the Mishnah introduce the core teachings of Jewish mourning.

And why did Hazal specifically place aveilut in Mo’ed Katan? Because they recognize aveilut as the ultimate extenuating circumstance, and Mo’ed Katan is the tractate devoted to the interplay of holidays and extenuating circumstance.

In a sense, holidays are themselves extenuating circumstances. Workweek life is an amalgam of professional duties, family responsibilities, and errands to be juggled. These obligations build to the point that one might mistake them for the totality of one’s life and identity. But in the observance of a holiday, we recognize that we are party to narratives and values beyond the prosaic—narratives which, when push comes to shove, trump the everyday. In Jewish holidays, the “regular world” continues its regular business, while we participate in an exceptional reality: the thrill of liberty from Egypt, the hilarious volte-face of Purim, the cosmic drama of Judgment Day. Something happened (or is happening) and I simply cannot come into work today.

Mourning is no different. Each person participates in narratives of love, loss, and transition whose depth neighbors and professional colleagues will never fully know. We pass through the collective calendar of recognized work days and shared recreational hours, while each carrying in our own hearts a private calendar of grief days and joyful seasons. In the institutions of aveilut (Shivah, Sheloshim, the first year, yahrtzeit), halakhah recognizes the sanctity of that private calendar. Even if August 1 means nothing to the world at large, it means everything to me. You can go to work. I have to sit here. Something came up, and I will never be the same.

Jewish tradition gifted us two magnificent sets of structured time, in which to reflect on our most formative chapters. As members of an ongoing covenant, the national mo’adim are the scaffold for reifying who we are; as individuals with private lives and personal tragedies, the personal mo’ed (aveilut) is the frame for revisiting whom we’ve lost. The brilliance of both is the transformation of a one-off, past experience into a continuing calendar of sacred time.

Yet, on the grand scale of covenantal time, even the holidays of the national calendar can be extenuated. The Sages of the midrash knew that when a true revolution in human history arrives, the new consciousness it produces will render most of our festivals void. We will no longer need to step into the alternate reality of Pesah freedom, when the glow of messianic freedom pervades our everyday. “All Moadim will in the future be canceled”, the Midrash proclaims. Since mourning is itself a holiday, it is no exception. The Mishnah of Mo’ed Katan closes with the redemptive image of grief finally outshone. In the mishnaic poetry, the aveil will one day be “Aval-ed”:

אֲבָל לֶעָתִיד לָבֹא הוּא אוֹמֵר, בִּלַּע הַמָּוֶת לָנֶצַח, וּמָחָה יהוה אֱלֹהִים דִּמְעָה מֵעַל כָּל פָּנִים

But in the future, the verse reports, “[God] will swallow up Death forever, and the Lord will wipe away the tears from upon all faces” (Isaiah 25:8).

Mo’ed Katan’s last words evoke a world touched by divine comfort, in which Death’s best efforts to harm our loved ones are finally to no avail.