Mamzer

Mamzer (Hebrew: ממזר‎) is a Hebrew word of uncertain etymology, referring to a category of person.

In Jewish religious law a mamzer is a person born out of wedlock, or the descendant of such a person. Although this might suggest that "bastard" would be an appropriate translation of the word mamzer, the correspondence is not entirely accurate, and is somewhat misleading, due in part to the Jewish definition of marriage.

Roughly speaking, due to the Jewish definition of marriage, a mamzer is someone who is either born of adultery by a married woman, or born of incest (as defined by the bible), or someone who has a mamzer as a parent^[1]. However, this is an oversimplification.

Definition

Biblical use and etymology

The Deuteronomic Code lists a number of people who should be prohibited from taking part in the congregation of Yahweh (Hebrew:biqehal Yahweh); mamzers, and their descendants, are among those listed, and appear in the list between spadones and Ammonites^[2]. No explanation of the phrase mamzer is given in the masoretic text, but the Septuagint translates it as son of a prostitute (Greek:ek pornes)^[3].

In the Talmud, it is alleged that the word mamzer derives from mum zer, meaning a strange blemish^[4][5], and thus suggesting illicit parentage in some sense. In the Talmud, there is fierce dispute about whether or not the term mamzer included a child who had a Jewish mother, and a father who is either non-Jewish, or a slave (or both)^[6][7]; although Judaism eventually concluded that this is not the case^[8], a number of scholars now suspect that this was actually the original definition of mamzer^[9]. Abraham Geiger, a prominent Jewish scholar and rabbi of the mid 19th century, suggested that the etymological origin of mamzer might be ma'am zar, which means belonging to a foreign people^[10].

As defined by later Judaism

Children born of incest

Marriages forbidden in the bible were regarded by the rabbis of the middle ages as invalid - as if they had never occurred^[11]; a child from such a marriage was thus regarded, by these rabbis, as having been born out of wedlock. Thus a child born of incest (as defined by the bible) is a mamzer. Since Judaism regards the biblical laws as applying exclusively to Jews, an incestuous relationship between two non-Jews cannot produce a mamzer.

Children born of adultery

A child born of adultery also is a mamzer, but because Jewish society was historically polygynous (one man could have multiple wives at the same time), sexual intercourse between a man and an unmarried (and unbetrothed) woman could never constitute adultery. According to Joseph Karo (a prominent rabbi in the middle ages), if there are rumours that a married woman is having an affair, this would not be sufficient reason to suspect that a child born to her would be a mamzer, as the majority of her sexual activity is probably still with her husband^[12]; the exception to this is the case where the woman in question is exceptionally adulterous^[12].

Modern fertility treatment has complicated the issue; Rabbi Joel Teitelbaum declared that a child born to a married woman would be a mamzer if the corresponding pregnancy had been the result of artificially insemination, in which the sperm used was that of a man who is not her husband; certain other Jewish religious authorities dispute this^[13]

Children born to an unmarried woman

In Judaism, sexual intercourse between a man and an unmarried woman is traditionally regarded as a form of betrothal^[14], meaning that a child born as the result of such an act cannot be a mamzer, unless the bible forbade the couple from getting married.

Certain Foundlings

The status of a foundling (Hebrew: asufi) was determined by the state in which it was found. If there were indications that the foundling had been abandoned due to the parents being unable to support it, then Jewish law regarded the child as legitimate^[15]; any of the following were considered to be such indications:

• circumcision^[15]
• carefully straightened limbs^[15]
• anointment with oil^[15]
• painted eyes^[15]
• a talisman hung on its neck^[15]
• discovery near a synagogue^[15]
• discovery on a busy pavement^[15]
• discovery on a tree, where it couldn't be reached by wild beasts^[15]

However, if these were not present and there were indications that the (unknown) parents could have supported the child, it was regarded as potentially being a mamzer^[15]. A child whose mother is known, but not the father, was known as a silent one (Hebrew: shetukhi), and fell into the same category as a founding^[15]; this status, however, could be changed if the mother knew and revealed the identity of the father^[15].

Hereditary nature

Like many other types of social category, in Judaism the mamzer status is hereditary - a child of a mamzer (whether mother or father) is also a mamzer. However, since these rules are regarded as applying only to Jews, and since traditional Jewish religious law regards being a Jew as something which is only maternally inheritable, the child of a male mamzer and a non-Jewish woman is not a mamzer.

Although the marriage of a Jew to a non-Jew is prohibited by the Talmud^[16], someone^[specify] argued that there should be an exception for the marriage of a male mamzer to a non-Jewish female slave^{[citation needed]}; this exception is the only choice a male mamzer can take, if he wishes to have a child which would not be regarded as a mamzer, by traditional Jewish religious law.

Historically, a female mamzer could not avoid passing on her mamzer status to her children. However, according to the opinion of Rabbi Moses Feinstein, a child of a mamzer would not be a mamzer if they were born as the result of artificial insemination, because^[specify]; there are, however, those that disagree with him.

Marriage restrictions

The biblical rule against certain people becoming part of the congregation of Yahweh^[2] was interpreted by the Talmudic writers as a prohibition against ordinary Jews marrying such people. Although the biblical passage includes in this up to the tenth generation of the descendants of a mamzer, classical rabbis interpreted this as as an idiom meaning forever. Thus, in traditional Jewish religious law, a mamzer and his or her descendants are not allowed to marry an ordinary (non-mamzer) Jewish spouse.

The restriction does not prevent a mamzer from marrying another mamzer, nor from marrying a convert to Judaism, or a non-Jewish slave. However, foundlings suspected of being mamzers were not so free; they were neither permitted to marry a mamzer, nor even to marry another foundling^[15]

Social status of Mamzers

Although in many historical societies, illegitimacy of birth was a quality which could make a man somewhat of an outcast, this was not the official attitude of Judaism; apart from the marriage restrictions, a mamzer is not officially considered a second class citizen, and is supposed to be treated with as much respect as other Jews^[1]. For example, the Mishnah that a learned mamzer should take precedence over an ignorant Jewish High Priest^[17]; the meaning of take precedence is not explicitly explained by the Mishnah, nor by the Talmud in general, although the preceding part of the Mishnah uses it to refer to the priority in which people should be rescued from danger, while other bits of the Mishnah use the phrase to refer to the priority in which people should receive aliyot^[18].

Rabbis in the Talmud, and those in the middle ages, saw fit to spell out that, aside from in questions of marriage, a mamzer should be treated as an ordinary Jew. The Talmud insists that a mamzer should be considered as an ordinary relative for the purpose of inheritance^[19], including levirate marriage^[20]. Maimonides and Joseph Karo see fit to repeat this^[21][22], and confirm that a mamzer can serve as a judge^[23][24]. Similarly a Tosafot insists that it is permissible for a mamzer to become a king^[25]. Some prominent historic rabbis^[specify] expound the view that the death of a mamzer should impact a Jewish priest as much as that of a non-mamzer^{[citation needed]}.

Modern investigations into mamzer status

Today, civil divorce and remarriage without a get (Jewish Bill of Divorce) has become commonplace, while Jewish marriage is popular even among the less-religious. This situation has created a crisis threatening to create a large subclass of mamzer individuals ineligible to marry other Jews, threatening to thus divide the Jewish people. Decision-makers have approached the problem in two ways.

Orthodox Judaism

The principal approach in Orthodox Judaism is to create a legal fiction confirming that a person has never been mamzer. This approach follows strict rules of evidence that typically render it impossible to prove either that a prior marriage ever existed, or that a child was born of relations outside that marriage; since Jewish religious law gives the benefit of the doubt in this matter, this usually leads to the conclusion that at the time of a person's birth, their parents were married.

An example is a contemporary responsum by the well-known Israeli Posek Rabbi Ovadiah Yosef to Rabbi Grubner of Detroit, Michigan, establishing an impossibility to prove mamzer status in a situation where the evidence might appear to be clear-cut. The case involved the daughter of a woman who had been married by a Haredi rabbi to a husband who subsequently converted to Christianity and refused to participate in a Jewish divorce. The mother eventually divorced and remarried civilly and had the daughter years later. The daughter, who had been raised as an Orthodox Jew and attended a Haredi day school, brought up the question of her status herself prior to an impending marriage.

Rabbi Yosef proceeded systematically to disqualify evidence that a prior marriage had ever taken place. The mother's evidence was immediately disqualified as an interested party. The ketubah (Jewish marriage contract/certificate) was never found. The rabbi who performed the marriage was contacted, but Rabbi Yosef wrote that his testimony could not be accepted without the ketubah, and in any event required corroboration by a second witness. Attempts to contact the husband were abandoned after an adversarial conversation with his new, non-Jewish wife. Thus, Rabbi Yosef concluded there was insufficient evidence that a valid prior marriage had ever taken place.

Rabbi Yosef then proceeded to establish the possibility that the former husband might be the daughter's father. The mother testified that her former husband occasionally brought alimony payments and came for visitation in person and hence the two were sometimes at least momentarily alone together. Applying an ancient rule that when a husband and wife are known to be alone together behind a closed door the law presumes sexual intercourse may well have taken place, Rabbi Yosef concluded that it was possible the former husband was the daughter's father and hence Jewish law, which very strongly construes all evidence in favour of birth within marriage, had to presume that he was. Thus, Rabbi Yosef concluded that there was insufficient evidence of either a former marriage or that the new husband was the father, and hence he concluded that no evidence of mamzerut had occurred.

Conservative Rabbi Daniel Nevins, commenting on this case, noted that the box of traditional tools Rabbi Yosef brought to bear for discrediting evidence of mamzer status may be sufficiently robust as to cover virtually all cases of inquiry in the types of situations a congregational rabbi would be likely to experience.^[26] Nonetheless, Orthodox authorities hold that while contemporary rabbis have authority to refine procedural rules such as rules of evidence, they do not have the authority to abolish biblically mandated categories or procedures entirely.

Conservative Judaism

The Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly of Conservative Judaism has declared that Conservative Rabbis should not inquire into or accept evidence of mamzer status under any circumstances, rendering the category inoperative. In doing so, the CJLS distinguished the Conservative approach to Jewish Law from the Orthodox approach, noting that Conservative Judaism regards Biblical law as only the beginning of a relationship rather than a final word, and that the Conservative movement regards it as its role and responsibility to revise Biblical law from time to time when such law conflicts with evolving concepts of morality.^[18]

The CJLS cited cases in the Talmud in which Biblical laws became inoperative, such as when the Sanhedrin stopped meeting at its seat in the Temple in Jerusalem where it was required to meet in order to administer capital punishment, and the abolition of such practices as the rite of Sotah (the ordeal of a suspected adulteress) and the breaking of the heifer's neck in a case of suspected murder as precedents for refusing to administer Biblically mandated procedures on moral grounds.^[18] (Other authorities have suggested other reasons, such as the Roman authorities removing the Sanhedrin's ability to administer capital punishment, and the association of certain priestly practices with the existence of a Temple in Jerusalem).

Reform and Reconstructionist Judaism

The category of mamzer has no role in Reform Judaism or Reconstructionist Judaism, as these more liberal branches regard it as an archaism inconsistent with contemporary ethical behavior.

In Israeli Law

In the modern State of Israel, the law concerning matters of marriage, divorce, and personal status, is completely controlled by religious courts; hence, there, the Jewish regulations concerning mamzers are also the national laws imposed on Jews, even on secular Jews. Because of the severe impediments to marriage which mamzers suffer in Jewish religious law, the Israeli civil authorities have taken the position that the paternity of a child born within a marriage should not be challenged in any court, in order to avoid creating a body of evidence that might be used to declare the child a mamzer, or create difficulties for a future marriage.

An extensive report on the issue of Civil Marriage in Israel, written by Prof. Pinhas Shifman and published in July 2001 by the Association for Civil Rights in Israel, mentions Mamzer among the categories of Israelis whose basic right to marry a spouse of their choice is denied, due to the religious monopoly over marriage^[27]. A recent case, involving a child born eight months and two weeks after a divorce, indicates that the issue raises strong feelings within Israeli society.^[28].

The existence of the category of Mamzer, and the marital impediments inherent in it, is one of the arguments frequently used by Israeli secularists such as former Education Minister Shulamit Aloni, in calling for separation of religion and state and for the institution of civil marriage - since:

it is utterly monstrous and unacceptable that the lives of people be ruined and their basic right to create a family with the spouse of their choice be denied due to antiquated, inhuman religious laws which mean absolutely nothing to them.^{[citation needed]}

Connection with French Medieval nicknames

Ebalus of Aquitaine, Count of Poitou and Duke of Aquitaine (c. 870 – 935) had the nickname "Manzer" or "Manser". As he is known to have been a bastard and reputed to have had a Jewish mother, this nickname is considered to be derived from "mamzer". A similar explanation is offered also for the same nickname as used by another Prince from Occitania, Arnaud Manzer, Count of Angoulême (born 952-died 988/92) who also was a bastard.^[29]

References

1. ^ ^{a b} Silberberg, Naftali. "What is the legal definition of a "mamzer"?". AskMoses.com. http://www.askmoses.com/article.html?h=236&o=2496. Retrieved 2007-08-06. 
2. ^ ^{a b} Deuteronomy 23:2-4 (verses 1-3 in some English translations)
3. ^ Deuteronomy 23:2-4, LXX
4. ^ Kiddushin, 3:12
5. ^ Yebamot 76b
6. ^ Yebamot 23a
7. ^ Yebamot 45a
8. ^ This article incorporates text from the 1901–1906 Jewish Encyclopedia article "Bastard", a publication now in the public domain.
9. ^ This article incorporates text from the 1903 Encyclopaedia Biblica article "Mamzer", a publication now in the public domain.
10. ^ Abraham Geiger, Urschrift und Übersetzungen der Bibel in ihrer Abhängigkeit von der innern Entwicklung des Judentums [generally referred to in academic theology simply as Urschrift] (1857), pages 54-55
11. ^ Shulchan 'Aruk, Eben ha-'Ezer, 16, 1
12. ^ ^{a b} Joseph Karo, Shulkhan Arukh Eben haEzer 4
13. ^ Jakobovits, Yoel (2005). "Assisted Reproduction through the Prism of Jewish Law" (pdf). Jewish Action 65 (3): 26–29. http://www.ou.org/publications/ja/5765/5765spring/Prism.pdf. Retrieved 2007-03-27. ""However, many equally prominent rabbinic authorities maintain that only actual physical relations would confer this status on the woman."". 
14. ^ Kiddushin 1:1
15. ^ ^{a b c d e f g h i j k l m} This article incorporates text from the 1901–1906 Jewish Encyclopedia article "Foundling", a publication now in the public domain.
16. ^ Kiddushin 68b
17. ^ Horayot 3:8
18. ^ ^{a b c} Rabbi Ellie Kaplan Spitz, Mamzerut, Committee of Jewish Law and Standards, EH 4.2000a, pp. 5587-585.
19. ^ Yebamot 22b
20. ^ Yebamot 22a
21. ^ Maimonides, Mishneh Torah, Mispatim - Laws of inheritance - 1:11
22. ^ Joseph Karo, Shulkhan Arukh, Hoshen Mishpat 276:6
23. ^ Maimonides, Mishneh Torah, Shoftim - Sanhedrim - 2:9
24. ^ Joseph Karo, Shulkhan Arukh, Hoshen Mishpat 7:2
25. ^ Talmud, Yavamot 45b Tosefot
26. ^ Rabbi Daniel S. Nevins, A Concurring Opinion Regading Mamzerut, Committee of Jewish Law and Standards, EH 4.2000b, pp. 587-592.
27. ^ [1]
28. ^ Dayan, Aryeh (2006-09-07). "Better to be a mamzer or to grow up without a father?". Haaretz. http://www.haaretz.com/hasen/spages/756433.html. Retrieved 2007-10-30. 
29. ^ Carole St-Onge (2007-04-17). "St-Onge (Boissonneau dit Saint-Onge & Tondu dit St-Onge) Family". St-Onge Family Tree. RootsWeb. http://worldconnect.rootsweb.com/cgi-bin/igm.cgi?op=GET&db=carolestonge&id=I07029. Retrieved 2007-10-30.