August 20th: Ki Tetzei
THIS WEEK IN THE TORAH
Rabbi David E. Ostrich
Last week, focusing on the passage, “You shall appoint for yourself judges,” I wrote about the ways that laws should fit the mores and sensibilities of a community. Sometimes, this means adjusting the laws. Throughout the Talmud, one can see a continually adjusting approach as the various generations of Rabbis observe the interactions between laws and life.
One very interesting situation has its basis in this week’s portion. In Deuteronomy 23.3, we read about illegitimate children, mamzerim: “No one misbegotten (mamzer) shall be admitted into the congregation of the Lord; none of his descendants, even in the tenth generation, shall be admitted into the congregation of the Lord.”
This seems like a rather harsh statute, and it raised/raises a number of questions. First, what is a mamzer? Though many of us may be acquainted with the term as an insult, its historical definition is a bit elusive. Often translated “bastard” or “illegitimate child,” it can be confused with the Western/Christian understanding of illegitimacy. In Christianity, any child born to a set of parents who were unmarried was considered illegitimate. In Biblical Judaism, this was not the case. Though marriage certainly took place in Biblical Hebrew and Israelite religion, there are no rules as to what made it official or legal. The Bible simply refers to a man taking/acquiring a woman. Sometimes, the woman acquired had status as a wife. Sometimes, she had a lower status and was a kind of servant wife or concubine. Then, there were situations where a child was born after a fleeting encounter—as with Judah and his disguised, widowed daughter-in-law Tamar (Genesis 38). In all these cases, the marital status of the couple seemed to have had no bearing on the legitimacy of the child.
Though the Hebrew word in the passage is mamzer, the translators of the New Jewish Publication Society translators render the word misbegotten and add the following footnote: “Meaning of Hebrew mamzer uncertain; in Jewish law, the offspring of adultery or incest between Jews.” In other words, they are not sure of the Biblical meaning, but, in an effort to render the passage meaningful to modern readers, they move on to the definition determined by the Rabbis post-Biblically—in the Talmud. There, in addition to the category of incest (defined in the Torah as a number of prohibited relationships between relatives), the Rabbis seem to focus on the possession/ownership of a married woman’s reproductive system: it belongs to her husband, and, if it is employed by anyone other than her husband, the resulting child is a mamzer. If a woman is unmarried, then the mamzer rule does not apply. If the man is married but the woman is not, then the mamzer rule does not apply.
I realize that this sensibility runs counter to our modern understanding of personhood and individual identity and autonomy. I am just trying to explain these ancient sensibilities—while we all celebrate the progress we have made!
Another question regards the meaning of the phrase, “admitted into the congregation of the Lord.” This does not seem to have anything to do with Jewish Identity. Rather, it involves the ritual of entering the courtyard of the Mishkan—or, later, the Temple. There were many people who were part of the community but whose ritual status prevented them from worshipping in the sacred precincts. Our verse is preceded and followed by prohibitions of categories of other people who are ritually unacceptable: men with crushed testes or who had been sexually mutilated, and men and women descended from Ammonites and Moabites.
Nothing suggests that these ritually unfit people were banned from the community in general; rather they were just excluded from the sacred precincts. There is also the famous case of a Moabite becoming quite important in Jewish Tradition. Ruth, the archetypal convert, was a Moabite. When she refused to leave her mother-in-law Naomi and returned with her to Bethlehem, they were able to participate in communal activities. Moreover, she ended up marrying her deceased husband’s cousin, Boaz, and their union produced Obed—who fathered Jesse, who fathered David HaMelech, the most important king of our Tradition. Thus this prohibition seems to have been nuanced both Biblically and in later generations.
Another “nuance” in the Law came during the First Century CE. The Romans were very harsh rulers, utilizing what they called Pax Romana, the Roman Peace: If you behaved, everything was peaceful. If you misbehaved, the Romans would kill you, and then things would be peaceful. This was a very hard time for the Jews in the Land of Israel, and one of the very brutal techniques the Romans used was rape. Thousands of Jewish women were raped by Roman soldiers. In addition to the personal trauma, there were often children born of these violent encounters, and the Rabbis had to figure out the legal status of these children. The basic approach was to say that, if it was possible that the woman got pregnant with her husband, then the Halacha would assume as much. Some Rabbis even amended the laws of nature to suggest that pregnancy could last for many more than nine months. One suspects they knew the biology but worked the system to keep these children out of the category of mamzer. Some scholars think that this crisis might have been the catalyst for changing the Halacha on Jewish status. In Biblical times, Jewish identity was based on a child’s father; in the Rabbinic period, we have matrilineal descent: any child born of a Jewish mother is Jewish.
As for actual adultery, there is one additional question. Since mamzerim can only marry mamzerim, and their children are perpetually considered mamzerim as well, why did there not develop a caste of mamzerim among the Jewish people? It was a category from which one could never escape. One possible answer is that no one in the Jewish people ever committed adultery—or that adulterous unions never resulted in any children. Another possible answer is that mamzerim simply left the community and lived as non-Jews. However, given a continually adapting Halacha—one working on the intersection between Law and Life, there is another possible answer. Some Rabbinic passages suggest that Jews with problematic backgrounds simply move far away and never reveal their origins. Without any knowledge of the mamzerut, they would be accepted in the distant Jewish communities and live their lives without the stain of their parents’ indiscretions.
Regardless of the circumstances of relationships that resulted in mamzerim, the one thing we can say for sure is that the children are not to blame. Thus Halacha worked with a law intended to scare people away from adultery and shielded innocent children from that law’s harsh consequences.