This article appeared in Rabbi Evan Hoffman’s weekly Torah essay titled Thoughts on the Parashah and is posted here with his permission.
Scripture places severe social restrictions on the mamzer. “No mamzer shall come into the Lord’s assembly. Even his tenth generation shall not come into the Lord’s assembly (Deuteronomy 23:3).”
The meaning of the word mamzer, which appears only once in the Pentateuch and also only once in the Prophets (Zechariah 9:6), was the subject of wide speculation as late as the Tannaitic period (Mishnah Yebamoth 4:13). The Talmud interprets ממזר as a contraction of מום זר, or blemished pedigree (Yebamoth 76b). The consensus halakhic opinion is that any progeny of a union that is forbidden on pain of either spiritual excision (כרת) or capital punishment will have the status of mamzer. (As a separate, non-halakhic matter, the word is often used in Hebrew slang to mean “bastard,” not necessarily in the literal but almost always in the characteriological sense, and, in general, is a derogatory way to describe someone of either gender.)
“Coming into the Lord’s assembly” is understood in the matrimonial sense. Mamzerim, both male and female, are forbidden to marry into families of Kohen, Levi, or Yisrael status. Their pool of prospective life partners is, accordingly, limited to fellow mamzerim, converts, freed slaves, and Jews of dubious ancestry (Mishnah Kiddushin 4:1). Although Scripture seems to indicate that the exclusionary policy of so limiting the marriage pool expires after ten generations from the first mamzer in the line in question, the sages employed various hermeneutic methods to determine that the stigma of mamzerut extends forever (Sifre Deuteronomy 249).
Why So Strict?
The commentators wondered why Scripture imposes such an extreme penalty on generations of innocent people, isolating them from the main body of Israel and possibly condemning them to long-term bachelorhood and childlessness. Rambam explained that by threatening generations of unborn descendants with the disastrous consequences of mamzerut, the Law seeks to deter would-be fornicators from satisfying their illicit lusts (Sefer Ha-Mitzvot, lo ta’aseh 354). He also advanced another reason: the desire to protect the genealogical purity of Israel (Guide for the Perplexed 3:49). The author of Sefer Ha Chinuch explained that the bastard child is conceived through impure and abominable intentions, and that those moral defects are undoubtedly inherited by the offspring. Thus, he concluded, God did a great service for Israel by forcibly removing evil from the midst of the congregation (Mitzvah 560).
Mamzerim can be the product of a large number of theoretical scenarios and permutations. Some of the obvious cases are: (a) incestuous relations, (b) willful adultery, and (c) unintended adultery, stemming from a lack of awareness by the wife that her marital bond was still intact. A prime example is of course the classic agunah problem vis a vis so-called Enoch Arden laws. Suppose a man disappears for an extended period and, reasonably but wrongly, is presumed to be dead. The wife then innocently remarries and gives birth to children from her new husband, only to learn later that her first husband is still alive. Her children from the second marriage are mamzerim. The most common case of unintended adultery occurs when a woman divorces civilly and does not realize — or does not care – that Judaism requires appropriate preparation and delivery of a special document of divorcement (get) in order legally to terminate the marital bond. She subsequently remarries civilly, or at a ceremony presided over by a heterodox clergyman, and has children. So far as Orthodox Judaism is concerned, she is still technically married to her first husband. Thus, the children from her subsequent union are, perforce, mamzerim.
Working Around the Law
The sages were disinclined to impose the severe penalties of the law even on truly guilty people; even more so were they reluctant to do that with regard to mamzerim who personally had committed no moral trespass. A variety of legalistic methods were devised to avoid having to pronounce mamzer status even in those cases where the facts were unambiguous and damning. For example, halakhah presumes that the majority of a married woman’s sexual encounters are with her husband (Sotah 27a). Thus, even if her infidelity becomes public knowledge, paternity of her children is conveniently attributed to her husband. Rabbah Tosfaah asserts that paternity of a newborn is attributed to an absentee husband for up to twelve months after his physical departure from the marital bed (Yebamoth 80b). Even the primitive science of Talmudic era Babylonia would have recognized the impossibility of a twelve-month human gestation period. Nevertheless, the sages were willing to be creative in their desire not to impose mamzer status on anyone. In the halakhic literature of the Rishonim and Acharonim, we often find rabbis requiring the strictest possible evidentiary standard, with the (desired) result that, even in the face of strong testimony or even a confession of guilt, the stigma of the label of bastardy was not applied.
For the definite male mamzer, Rabbi Tarfon offered a creative solution that would allow him to marry and sire children who would then themselves be free of the stain of mamzerut. The mamzer could sell himself into slavery and copulate with his master’s heathen maidservant. The offspring would have the status of Canaanite slaves, not Jewish mamzerim. Upon being emancipated, the children would be full-fledged Jews without any trace of mamzerut, because their biological father-in-fact would not be regarded as their halakhic father (Mishnah Kiddushin 3:13).
Is it Ethical? Is it Fair?
Some maintain that the mamzer statute is an unethical Torah law. It joins other examples of Torah laws considered by some to be unethical. These include those involving the rebellious son (Deuteronomy 21:21) and the idolatrous city (13:16). The sages effectively rendered those two laws inoperative by interpreting the Biblical text thereof in such a way that the obstacles to implementation of the literal words were made insuperable. Rabbi Simon claimed that there never was a rebellious son or idolatrous city, nor will there ever be. Rabbi Jonathan disagreed and claimed to have sat on the grave of a condemned boy and on the heap of a condemned city (Sanhedrin 71a). Rabbi Jonathan rejected the notion that a Biblical commandment could be too harsh or unpleasant to put into practice, and his school of thought might reasonably accuse its opponents of heresy for claiming that a Torah law is, or could be, immoral.
Those sages who were disturbed by the ethics of the mamzer statute could not claim that it never had been put into practice, because there have been innumerable examples throughout Judaic history. But they could claim that at some point in the future the law would be reversed. Citing Ezekiel 36:25, Rabbi Jose predicted that in the Messianic era God Himself would purify all mamzerim, thereby allowing them to marry freely. Jose’s prediction tacitly assumes that even God recognizes the unfairness of (some of) His laws. We recognize such a proposition as a theologically bold one.
In contrast, Rabbi Meir rejected the notion that mamzerim would ever have their status ameliorated (Tosefta Kiddushin 5:4). Either Meir saw nothing that was immoral in the mamzer law (possibly because his only source of morality was Torah law itself), or he was theologically uncomfortable with the idea that Biblical laws could be anything other than eternally binding.
The strongest statement in rabbinic literature protesting the unfairness of the mamzer law appears in the Midrash:
“And I returned and considered all the oppressions that were done under the sun; and beheld the tears of those that were oppressed, and they had no comforter; and on the side of their oppressor there was power, but they had no comforter (Ecclesiastes 4:1).” Daniel the Tailor interpreted the verse “all the oppressed” to refer to mamzerim. He wondered, rhetorically: Their mothers committed a sin, yet the humiliated ones are removed? This one’s father had illicit relations – but what wrong did the child do? Why should it make a difference for him? The Midrash continues: “From the hand of the persecutors there is strength” — this is the Great Sanhedrin of Israel which comes against them with the power of the Torah and removes them based on “no mamzer shall enter the congregation.” Thus God says, “I have to comfort them,” because in this world they are refuse, but in the Messianic age they are pure gold (Leviticus Rabbah 32:8).”
Daniel the Tailor is an obscure figure who is cited only twice in the entirety of Midrashic literature. The audacity of his homily is astounding. He openly criticizes the Law as being illogical, immoral, and oppressive toward innocent people. He depicts the legitimate religious authorities as monstrous persecutors of defenseless individuals. He portrays God as being quite removed from and displeased with the Law – as opposed to the conventional portrayal of God as the Lawgiver.
Some scholars were tempted to suggest that Daniel the Tailor’s remarks were a late, unauthorized interpolation into the Midrashic text; however, no real evidence exists to support that theory. As radical as it might be, Daniel’s criticism of the law, and the emotional cruelty of its implementation, was not considered beyond the pale of theological acceptability; thus, it was considered worthy of inclusion even in a canonical work like Leviticus Rabbah.
Let us assume that the religious functionaries of antiquity did not at all relish the opportunity to harass innocent mamzerim with the brute force of the theocratic state. Likely, they felt sorry for the pain inflicted by the law on innocent people. They simply had no choice but to enforce the statute. Yet, according to Daniel the Tailor, in the eyes of God, or at least in the eyes of the mamzerim, the religious hierarchy is seen as vindictive and demonic, and as using the power of Torah to hurt people.
Our own generation should heed Daniel’s warning. It is disastrous for the fate of Judaism and the Jewish People that many contemporary Jews see the official custodians of halakhah as oppressive tyrants. Whether the issue is the mass nullification of bona fide Orthodox conversions, the Agunah crisis, mamzerut, the Jewish status of returnees to Zion from exotic places, or the refusal to bury fallen soldiers in a Jewish cemetery, much of the general Jewish public is significantly dismayed by the inflexible attitude of the rabbinic establishment. It is widely believed that in the early years of the State of Israel, the official rabbinate was more attuned to national concerns, and projected a kindlier visage, than is the case today, when it appears to be narrow, parochial, unbending, and even nasty.
Indeed, it can be powerfully argued that the very existence of such criticisms — whether or not they are justified — is bad for Judaism. Such an atmosphere fosters widespread indifference to religion.
Accordingly, we should applaud the work of organizations like Beit Hillel, with its slogan “attentive spiritual leadership,” for trying to improve the image of traditional Judaism in Eretz Yisrael. Torah law is complex. Admittedly, its morality is not always clear. But we do believe that, when implemented properly, “Its ways are ways of pleasantness, and all its paths are peace (Proverbs 3:17).”
Rabbi Evan Hoffman serves as rabbi of Congregation Anshe Sholom in New Rochelle, NY. He previously served as Assistant Rabbi of Park East Synagogue in Manhattan. Rabbi Hoffman is an active writer and lecturer, and he disseminates a weekly Torah essay titled Thoughts on the Parashah.
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