Does scattered ashes of Oxford Fellows pose Jewish problem?

Wednesday, 20 May, 2009 - 7:11 pm

A bid by a devout Hindu for the legal right to be cremated on a traditional open-air funeral pyre has been rejected by the High Court in London.


This story about a devout 70 year old Hindu, Davender Ghai, who requested the legal right to be cremated on a traditional open-air funeral pyre passed me by until I came across just a few days later an interesting question in my Oxford mail box regarding how to deal with requests from relatives of deceased old members of the University of Oxford for their ashes to be scattered in the Oxford College where they were a fellow.


At first glance, there appeared an interesting example of double standard.

Here is the story that appeared in the news about Davender Ghai.


Davender Ghai, 70, was seeking to overturn a decision by Newcastle City Council in 2006 preventing funeral pyres from being held.


The council has said the traditional religious practice is impractical. Mr. Justice Cranston ruled that pyres were prohibited by law, and the prohibition was "justified".


Mr Ghai, from Gosforth, Newcastle, the founder of the Anglo-Asian Friendship Society (AAFS), had earlier told a judge that a pyre was essential to a "good death" and the release of his spirit into the afterlife.


The father of three said he wanted to die "with dignity" and not be "bundled in a box".


In February 2006 he was refused a permit for an open-air cremation site in a remote part of Northumberland. Newcastle City Council said the burning of human remains anywhere outside a crematorium was prohibited under the 1902 Cremation Act, a ruling the Ministry of Justice agreed was correct.


Mr Ghai took his case to the High Court, invoking Article 9 of the European Convention on Human Rights, which protects religious freedom, and Article 8, which covers the right to private and family life. In a statement to the court he said: "I will not deny my claim is provocative, least of all in a nation as notoriously squeamish towards death as our own." However, I honestly do not believe natural cremation grounds would offend public decency - as long as they were discreet, designated sites far from urban and residential areas."


'Sensitive issue'


Mr Justice Cranston said that Justice Secretary Jack Straw, who had resisted Mr Ghai's legal challenge, argued that people might be "upset and offended" by pyres and "find it abhorrent that human remains were being burned in this way".

He said that while it was "a difficult and sensitive issue", the court had to respect the conclusion of elected representatives.


Those in support of pyres would have to change the "present balance of interests" through the political process, rather than the courts, Mr Justice Cranston said.

He ruled that Article 8 did not apply because an open-air pyre would not only affect family and private life but would also have a "public character".


Dying wish


Mr Justice Cranston gave Mr Ghai permission to take his case to the Court of Appeal. He added: "I don't think there is a real prospect of success, but it seems to me sufficiently a matter of public importance for me to give permission to appeal."


A spokesman for Newcastle City Council said after the ruling: "Newcastle City Council has, and will continue to, consult with different faiths in an attempt to accommodate their funeral requirements.


"This is a lengthy judgement and it will take some time to consider all of its detail."


Mr Ghai, who is currently receiving medical treatment in India, said: "I shall appeal until the very end, in the faith that my dying wish will not go unheard.

"A matter of such magnitude deserves to be heard by the highest courts in our land and I shall not tire until all legal avenues are exhausted."


End of article.


I agree that in a culture where it is undignified for a person’s remains to be burnt in the open should remain illegal, to protect public sensitivity. However, it is of interest that it is perfectly acceptable in the UK for a person’s ashes to be scattered in ones back garden or in a public space.


I would of thought that this should also be considered undignified to the public to have to possibly tread on the remains of a human being without knowing. I understand this cannot be enforced in ones private property, although it also seems to be inconsiderate to a possible purchaser or visitor who will find this, rightfully so, abhorrent and undignified. However, this should be not allowed to be done in a public property or a property that is used by the public.


This is why I was mildly shocked when I heard that at St John's College this happens fairly regularly in one of the gardens. There are no liturgical requirements, and therefore the family can do it themselves, albeit usually outside visiting hours. They have even apparently instituted a book of remembrance in which the details of each scattering are recorded.


Although I understand that there is a substantial difference between open-air pyres and scattering of ashes discreetly in a public garden, however, in my opinion, the same argument that is used against open-air pyres can be equally used against scattering of ashes in public areas. People may find it abhorrent to have to walk on someone’s scattered remains, whether the person was a college fellow or gardener, and could "upset and offended" many people of the public. I, for one, would avoid walking in such an area out of respect and would find it offensive.


An interesting question arises regarding the Jewish view regarding walking on scattered ashes. Jewish law and tradition is categorically against cremation. The resting of the soul is dependent, according to Jewish teaching, on burial and it has affect on the concept of resurrection of the dead.


However, this is not relevant to our discussion. The question that arises is whether a Jewish person from the priestly line may walk in such a garden. According to Jewish tradition, a Jew with priestly lineage, usually a bearer of the name Cohen or Cowen, avoids walking into a cemetery altogether not to come in contact with the dead. It is permitted only for a very close relative or if surrounded by a partition.


This became a major controversy a number of years ago when they realised that certain flight paths from Israel fly over cemeteries. This posed a major dilemma for Jews from the priestly lineage. After close examination of the Jewish legal texts, it was rendered permitted, since the plane constituted an enclosed area, shielding one from spiritual impurity of the cemetery below.


This would not be the same regarding walking on the remains of a dead body scattered in a garden.


There is however a clear ruling in Jewish law that states there is no problem with walking on scattered of ashes in college gardens, since there are no remains of flesh or bones attached to the ashes.


In the 3rd century work of the Mishna (tractate Ohalot 2:2) it presents an argument between Rabbi Eliezer and the sages. Rabbi Eliezer says that cremated ash of a person bears impurity, whereas the Sages opined that once the body is burned into ash it nullifies any impurity, due to complete change of its original form and loss of all identity.


The conclusive opinion of Jewish law follows the ruling of the sages who maintain that ash of those cremated bears no impurity.


It is possible to say that this not only solves the question of ritual impurity for potential priestly Jewish students who might study in Oxford, but also mitigates a reason for offence, although understandably one might still feel uncomfortable with the idea.


The site of the Botanic gardens in Oxford, which is the site of the medieval Jewish cemetery until 1290, however, presents a greater challenge in Jewish tradition. After the expulsion of the Jews in 1290, the site remained an expanded cemetery for the hospital of St John’s for a number of centuries. It was only in the 16th century when Lord Danby donated the land to the university for the purpose of Botanic Gardens. According to historians, when excavating in 1641, they apparently found masses of bones, which they, with all likelihood, buried somewhere near the site.


This subject however is beyond the scope of the article.

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