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Sifting the Makom HaMikdash

The Waqf have been constructing at Makom Hamikdash - our Holy of Holies, what are the Halachic implications of the finds? How does one regard the finds?
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Someone asked me recently a shaylah that involves what is probably one of the most heart-breaking issues I was ever asked. The question was: "Are there any halachic issues involved in sifting through the earth removed by the Waqf from the Makom HaMikdash?"

To explain this shaylah, I will first explain what has happened, then discuss the halachic issues involved — and finally explain the answers. There is also a fascinating halachic-architectural issue that I noticed while studying photographs of the Moslem construction, which I will discuss at the end of this article.

During the past seven years, the Waqf, the Moslem "Trust" that controls the holiest place on Earth, the Har HaBayis, has been making major "renovations" on the Har HaBayis, including the construction of yet another mosque - this one located near the Shaarei Chuldah which is the southern entrance to the Har HaBayis. These gates are called Shaarei Chuldah because Chuldah the Prophetess stood between these two gates and admonished the Jews to do teshuvah.

For clarification purposes: The Kosel HaMaaravi where we daven is part of the Western Wall of the Har HaBayis, known in English as "the Temple Mount," which is the top of the mountain called Har HaMoriah. The Beis HaMikdash included open courtyards as well as the structure that stood on the Har HaBayis, but occupied only a small area of the mountain. Although the Har HaBayis has much more kedusha than that of Yerushalayim, the Beis HaMikdash has much greater kedusha than that of the Har HaBayis. Someone entering the area where the Beis HaMikdash once stood is chayov kareis, an extremely severe punishment (Kaftor VaFerech, Chapter 6; Kesef Mishneh, Hil. Beis HaBechirah 6:14; Magen Avraham 561:2; Shu’t Binyan Tziyon #2.) The Mishnah (Keilim 1:8-9) lists seven levels of kedusha above that of Yerushalayim -- the highest being that of the Holy of Holies, the Kodoshei HaKodoshim area of the Beis HaMikdash, that only the kohen gadol may enter and then only to perform the service on Yom Kippur.

As we said, the Har HaBayis has far less sanctity than the Beis HaMikdash. Nevertheless, most contemporary poskim prohibit ascending the Har HaBayis nowadays, although some poskim permit entering areas of the Har HaBayis that are not part of the Beis HaMikdash to daven or perform a mitzvah after one has performed certain taharah procedures. However, most poskim prohibit entering the Har HaBayis under all circumstances.

The Moslem construction is without any permits and is illegal. However, the Israeli authorities refuse to interfere, citing concerns about violence! One of the Waqf’s goals is to obliterate any remnants of the Batei HaMikdash from the Har HaBayis so that they can persist with their lie that Jews never lived in Israel and that the Batei HaMikdash never existed. The Waqf has removed hundreds of truckloads of "debris" from the Har HaBayis, which they dumped in the Kidron Valley and other sites around Yerushalayim.

With the help of volunteers, Israeli archeologists are painstakingly sifting through the rubble removed from the Har HaBayis, to look for artifacts. (Thus, there is no halachic concern of ascending onto the Har HaBayis.) One of these volunteers asked me whether one may participate in this work, citing the following potential shaylos:

1. Is there a halachic concern that someone may be using property of the Beis HaMikdash for one’s own benefit, which violates a Torah prohibition called me’ilah.

2. Since we are all tamei, is there concern that one might be contaminating (i.e., making tamei) property or the stones of the Beis HaMikdash?

3. What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?

4. The remnants being unearthed include bone fragments, some of them human. This leads to two specific questions: (a) May a kohen work in this project? (b) Is there a halachic concern of mistreating the dead since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?

5. Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, which the archeologists do not permit?

Now some background on what the search is discovering, so that we can explain the halachic issues raised. Everything found on the Har HaBayis has a dark gray-ash color, rather than the typical white limestone color of Yerushalayim earth. This is because the fires of the destructions that transpired discolor the Har HaBayis earth.

Every bucketful of sifted earth contains numerous historical items including coins, pottery and glass fragments, arrowheads and other primitive weapons, and pieces of human or animal bone. Coins unearthed date from as early as the second Beis HaMikdash to as late as the period of Napoleon III (mid-nineteenth century). The pieces of animal bone are presumably from what people ate there - possibly leftovers from korbanos, but also from leftovers of non-Jewish meals of the many last centuries.

Other remnants unearthed are connected with the Churban, such as Babylonian and Roman arrowheads, and Roman catapult projectiles, all sad reminders of the Jews who died there during the two churbanos.

Probably a greater reminder of the Churban is the general attitude of the Moslems who effectively rule over the Har HaBayis today. One would think that the Moslems treat the Har HaBayis with some level of sanctity since they claim that it is one of their holy sites. Unfortunately, this is not true. The workers loiter and smoke there, and children play soccer. Their chief concern seems to be that Jews do not pray there.

We can now begin to answer the questions raised above:

Question #1: Is there a halachic concern in unearthing these items that someone is receiving personal benefit from property of the Beis HaMikdash which violates the severe Torah prohibition called me’ilah.

Much broken pottery has been found among the artifacts. These items involve great archeological curiosity because they teach who used the Har HaBayis and ate their meals there over the millennia. Halachically, we know that kohanim ate meats of the holier korbanos only in the Beis HaMikdash area. After cooking these korbanos, the halacha required that the earthenware pots used be broken in a holy area of the Beis HaMikdash (Zevachim 93b). The shards discovered may indeed be remnants from these vessels. However, these earthenware pieces have no sanctity, since all holy vessels were manufactured only from metal.

The Beis HaMikdash owned many types of holy vessels, such as bowls, baking dishes, forks, and numerous others that were used in the service. What is the halacha if someone found a usable metal item that might be one of the holy vessels of the Beis HaMikdash, or something that might be a remnant from the mizbayach (the altar)? Is there a prohibition of me’ilah in using these items?

Because of complicated halachic issues, the poskim dispute whether one would violate me’ilah in such a case. Allow me to explain. Based on a pasuk in Yechezkel (7:22), the Gemara (Avodah Zarah 52b) presents us with a halachic concept referred to as "ba’u peritzim vi’chilaluhu" when the lawless entered, they removed its sanctity, meaning that under certain circumstances, misuse of Beis HaMikdash vessels defiles them and removes their kedusha. The Rishonim dispute when this concept applies. The Baal HaMaor explains that when the Hellenized Jews used the mizbayach of the Beis HaMikdash inappropriately (during the events prior to the Chanukah story), this defiled usage removed the sanctity from the stones of the mizbayach. In his opinion, the other vessels of the Beis HaMikdash still maintain their sanctity, and furthermore only Jews cause the kedusha to be removed, not gentiles. Thus, according to the Baal HaMaor, someone who uses a vessel of the Beis HaMikdash today violates the severe prohibition of me’ilah. The Ramban disagrees with the Baal HaMaor, explaining that when the gentiles entered the Beis HaMikdash to destroy it, they abolished the sanctity of the building and its vessels. In his opinion, someone who used these vessels subsequently for his own personal use would not violate any prohibition of me’ilah. As a result of this dispute, one should not use a metal utensil found in the Har HaBayis ruins because of the possibility of committing me’ilah because of the Baal HaMaor’s stricter opinion.

Question #2: Since we are all tamei, is there concern that one might be contaminating (i.e., making tamei) property or the stones of the Beis HaMikdash?

I could find no halachic literature directly discussing this shaylah. One is prohibited from making something tamei in the Beis HaMikdash (Mishnah and Gemara Eruvin 104b; Rambam, Hilchos Biyas HaMikdash Chapter 3). However once it has been removed from the Beis HaMikdash grounds, I am unaware of any halachic source that prohibits making these items tamei. Furthermore, stones themselves do not become tamei.

Question #3: What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?

To destroy any part of the Beis HaMikdash violates a Torah prohibition (Rambam, Hil. Y’sodei HaTorah 6:7). This includes removing a stone from the mizbayach or from any other part of the Beis HaMikdash with the intent of destroying it (ibid.; and Hil. Beis HaBechirah 1:17). To destroy items owned by the Beis HaMikdash that are not used for a holy purpose (kodoshei bedek habayis) or to intentionally destroy part of the Har HaBayis is prohibited midirabbanan (Shu’t Achiezer, Yoreh Deah #49; Aruch HaShulchan HaAsid 4:24-25; Minchas Chinuch #437).

Is there a responsibility to bury the broken stone from the Beis HaMikdash or from the Har HaBayis?

The halacha is that damaged stone from the Beis HaMikdash or its vessels must be buried, just as we bury worn-out sifrei Torah (Tosefta, Megillah 2:10; Rambam, Hil. Beis HaBechirah 1:15). Thus, the halacha requires that stone or other remains from the Beis HaMikdash be respectfully buried. Unfortunately, the stone and other remains that have no archeological value are simply abandoned at the worksite.

Does the earth from the Har HaBayis have sanctity?

The Mizbayach Adamah (cited by Machazik Bracha, addendum to Orach Chayim 151), whose author was the Rav of Yerushalayim during the Eighteenth Century, discusses a shaylah whether grapes grown on the Har HaBayis are prohibited because of me’ilah. From his discussion, it is clear that he considers all earth of the Har HaBayis to have kedusha that might create a prohibition of me’ilah. Thus, the same concerns I raised above about the stone exists concerning the earth itself and it must be buried in a respectful way.

Question #4: The remnants unearthed include bone fragments, some of them human. This leads to two specific questions: (a) May a kohen participate in this project? (b) Is there a halachic concern of mistreating the dead since these human remains will not be buried afterwards but will be stored and used for scientific research and study?

The discovery of human bone fragments on the Har HaBayis is puzzling, since Jews would never bury anyone on the Har HaBayis. In all likelihood, these are bones of non-Jews that were interred there, or perhaps of Jews who were killed on the Har HaBayis and unfortunately not buried according to halacha. Even if we assume that these are bones of non-Jews, even a fragment the size of a barleycorn will convey tumah if moved or touched. Therefore, since there is a reasonable chance that a kohen might touch or lift a human bone fragment, he should refrain from participating in this project.

Does a non-kohen need to be concerned about the possibility that he will locate bones, and that he now has a mitzvah to bury them?

If one can assume that the bones discovered were from non-Jews, there is no mitzvah to bury them, but only to be certain that they do not contaminate a kohen. Even if the bones are from a Jew, it is unclear whether the mitzvah of burying a Jewish meis applies to such a small amount. (Mishneh L’Melech [end of Hil. Aveil] rules that the mitzvah of kevurah does not apply to part of a corpse. Tosafos Yom Tov [Shabbos 10:5] rules that one is required to bury a piece of a Jewish meis as small as a k’zayis. However, it is unclear how small a piece of bone requires kevurah.)

Question #5: Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, which the archeologists do not permit?

Some background to this shaylah: It is prohibited to benefit from an idol, and furthermore there is a Torah mitzvah to destroy idols in a way that no one can ever benefit from them (Rambam, Hil. Avodah Zarah 7:1; Shulchan Aruch, Yoreh Deah 146:14). The suggested method is to grind up the idol and scatter the filings to the wind or the sea. One may also not benefit from a broken idol and the same halachic requirement exists to destroy it (Shulchan Aruch, Yoreh Deah 146:11). Obviously, the archeologists overseeing this work will not allow this halacha to be fulfilled.

Thus, in conclusion it appears that one does not need to be concerned about contaminating or using property of the Beis HaMikdash while sifting earth removed from the Har HaBayis. It also seems that a non-kohen may participate in these activities if he has control over the items that he finds and can destroy the idols and bury the human bones and the Beis HaMikdash remains that he finds. However, he may not participate as a member of a "dig team" where he is forced to follow the instructions of an archeologist who is not following halachic guidelines.

From photographs I have seen of the new mosque, it appears that the Waqf did very little actual construction, but simply hollowed out one of the underground archways as it was originally constructed when the Beis HaMikdash was built. Explaining this underground construction is itself a fascinating halachic subject.

Someone who stands above a buried corpse or part of a corpse becomes tamei (with the exception of the case I will describe below). When the Beis HaMikdash was built, the building was constructed in a way that it is impossible to become tamei even if someone was once buried in the earth beneath the Beis HaMikdash, itself an almost impossible scenario. In order to eliminate the possibility of someone becoming tamei from such a corpse, they constructed the Har HaBayis with "archways on top of archways" (Mishnah, Parah 3:3; Rambam, Hil. Beis HaBechirah 5:1).

To explain this construction, I will explain how tumas ohel works. If there is tumas meis under a building, tumah spreads throughout the building, but does not spread above the building. Therefore, someone walking along the roof of the building remains tahor even though he walked directly above the meis.

Similarly, if you construct an archway, and there is tumah under the roof of the archway, the tumah spreads underneath this entire archway, but not above it. This is because an archway is a building - it spreads tumah underneath itself, but prevents tumah from rising above.

However, if the meis was buried beneath the pillar of an archway, the tumah is not inside the ohel but under the pillar - and the tumah rises vertically and contaminates the area directly above it.

The way to prevent this tumah from proceeding upward and contaminating people above it, is to construct another archway directly above the pillar. This way, although the tumah will rise through the pillar of the lower archway, it will then remain within the ohel of the upper archway and not spread above it.

This is the concept of "archways on top of archways"- where the upper archway’s pillar rests on the middle of the lower archway, which effectively blocks any tumas ohel from spreading from the ground below to any area above the double archway. If the meis is beneath the arch of the lower archway, the lower archway blocks tumah from rising above it, and if the tumas meis is beneath the pillar of the lower archway and its tumah rises vertically above, it will be blocked by the arch of the upper archway.

Thus, to avoid any possible tumas meis in the Beis HaMikdash, the entire Har HaBayis was constructed with underground double sets of archways, thereby guaranteeing that no tumas meis could spread upward from a meis below. The Waqf apparently cleared out the debris accumulated under one of these archways, and used its roof as the roof of their mosque!

Incidentally, this method of making "archways on top of archways" is used to correct the problem of roads discovered to pass over graves or cemeteries. In this instance, very small "archways" are constructed, but this is sufficient, because to accommodate this halacha problem each section of archway-ohel needs to be only a tefach high.

We all hope and pray that the day will soon come when the Beis HaMikdash returns as the Bayis Shlishi, and we will ascend up to it in purity, sanctity, and joy to serve Hashem by observing all of the mitzvos.

This article was originally published in Yated Neeman

This Shiur is published also at Rabbi Kaganof's site
Rabbi Yirmiyohu Kaganoff
Was the Rabbi of the Young Israel of Greater Buffalo, the Congregation Darchei Tzedek and also served as a dayan on the Beis Din of Baltimore. Now is a Rabbi in Neve Yaakov, Jerusalem. His Shiurim and Q&A can be found on his site:
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