Tuesday, 6 July 2021

The Principle That Wasn’t - A Re-evaluation of the Matrilineal Principle in Biblical and Rabbinic Judaism



This is something I wrote a LONG time ago. It's long! Anyone interested in skipping the Biblical material can look for 'Mishnah' and pick up there. Apols for the windings and greek typography. Bli Neder I'll tidy up at some point.


In the terms of the Judaism I was taught in Sunday School, the matrilineal principle claims that Jews trace their Jewish status through the maternal line. A born-Jew is a Jew because their mother is Jewish. The practical implication of the principle is that a person with a Jewish father and a non-Jewish mother is born a non-Jew, while a person with a Jewish mother and a non-Jewish father is a full Jew.[1] In this paper I wish to investigate the origins of this principle. It is a matter that has received the attention of no less a scholar than Shaye Cohen,[2] but for reasons I will detail, I am forced to very different conclusions than Professor Cohen.


I will cast doubt on the existence of the principle, certainly in the terms of the Sunday School teaching of my youth. I will also attempt to place the principle of lineality that does exist in a religious and theological context.


In a time of such rampant intermarriage and inter-denominational schism an understanding of the historical and theological underpinning of this halachic notion seems deeply necessary. All the more so if we accept Schiffman’s elegant articulation of importance of the issue, ‘[the question of “Who is a Jew”] is not simply a matter of communal strategy or policy. It is not only a question of Jewish survival. It constitutes a profound theological problem. The Jewish people represents [sic] the divine presence on earth.’[3]


The existence of a matrilineal principle in Judaism seems somehow out of place. There were and continue to be societies that traced lineage through the mother, specifically in ancient Egypt and Mesopotamia but, as Cohen suggests ‘it seems clear that the kinship patterns which characterize [those] matrilineal societies are thoroughly foreign to rabbinic society.’[4] In a general anthropological survey of those societies that do trace lineality through the mother, Schneider and Gough note that ‘essential to matrilineal [societies] was the set of religious beliefs which centered, naturally enough, on an Earth Goddess.’[5] The link between Mother Goddess and matrilineality is one backed up by their research and it makes intuitive sense, but the Mother Goddess is not a mainstream part of Jewish theology. Where else might matrilineality come from? Moreover why would the Rabbinic legal system, a system that has tended to down-play the ability of women to act in ways that have legal effect, choose to honour women with being the bearers of such a critically important legal responsibility as determination of one’s membership of the Jewish people? The oddness of the principle only increases when one starts to try and locate its origin.


Biblical Lineality

The plain meaning of the Genesis narrative is overwhelmingly patrilineal – that is the child of a Hebrew father and non-Hebrew mother is considered a Hebrew. For one thing if Abraham was the first Hebrew and there is no record of Sarai/Sara converting then without patrilineality the story of our people would have been very short. Isaac’s wife, Rebecca, daughter of Bethu-el seems to be descended from pagan ancestry on both the side of Nahor and his wife, (Gen 24:15) and yet there is no questioning the status of her children as Hebrews. We do not know the genealogy of the mothers of Jacob’s wives, the Bible only deeming it necessary to tell us of their father (Gen 29:10); again suggesting the patrilineal principle is dominant. Joseph’s wife Asenat (Gen 41:45) is clearly an Egyptian (Gen 41:45) but his children, Ephraim and Menashe are seen as Israelites. The pattern of the avot is replicated in the rest of the Biblical narrative. Moshe marries Zipporah, daughter of the Priest of Midian (Ex 2:16, 21), Samson asks for Philistine girl for a wife (Judg 14:2), Solomon marries foreign women (I Kings 11:1-16) and so on, but nowhere is there a suggestion that the children of these couplings are not considered Israelite. Indeed Rehoboam’s mother was an Amonite women (I Kings 14:21) yet he ascends the throne of Israel, as does Ahaziah son of Jezebel, another non-Israelite. (I Kings 22:40). Of course rabbinic exegesis is unable to accept such heretical notions and this leads to creative attempts to ‘demonstrate’ that these wives did in fact convert.[6] But these efforts should be seen more as drash than an accurate reflection of the straightforward meaning of the text.


The Bible does however seem to contain whispers of the possibility of matrilineal kinship in the specific case of ‘matrilocal marriage’; couplings where the non-Israelite man went to live with the Israelite woman. Attai the child of the daughter of Sheshan (a female Israelite) and Jarha (a non-Israelite slave) who resided in the house of Sheshan (I Chron 2:34-35) is seen as an Israelite. The son of Shlomit bat Dibri (a Hebrew) and an Egyptian man, appears to be an Israelite (Lev 24:10) and depending on whether one understands Amasa’s father to be an Israelite as reported in 2 Sam 17:25 or an Ishmaelite as reported in I Chron 21:17 (and the Septuagint on 2 Sam) he too is seen as an Israelite because of the lineage of his mother, Abigail. Whether these isolated incidents represent the first shoots of what is eventually to become a principle is less clear. I suspect these individual cases, rather than suggesting norms of proto-halachic behavior, are no more than individual cases. Cohen sates ‘the Biblical narrative saw marriage as effectively a private matter into which the State had no place intruding,’[7] and the same seems true concerning the status of the children of these marriages. Biblical narratives seem to represent no more and no less than recognition of ethnic/religious status deriving from de facto circumstance.


·                A number of verses are cited by the Talmud (B. Kiddushin 68b) in an attempt to show that the matrilineal principle has Biblical origin, but from a historical perspective none is entirely convincing. Exodus 21:4 states that the offspring of a non-Israelite bondwomen given to an Israelite slave belongs to the master which would seem to suggest that the offspring are not considered free Jews as might be the case if their lineality were to follow their father. But, as the Talmud itself recognizes, this is proof only of the position regarding couplings of slaves. Deuteronomy 7:3 is also cited, but this verse applies only to the seven nations and in any event is not proof that the offspring of a coupling of Israelite male and Canaanite female is not considered an Israelite, only that such coupling should not take place. The Rabbis attempt to suggest that such proof is offered in the very next verse, but the way they do so is difficult to understand and should be seen more as an asmachta than a historical reality.[8] As S. Cohen states, the effort of late sources to pin laws restraining intermarriage on the Torah ‘may be good halaka and good preventative medicine, but it is bad history and bad exegesis.’[9]


Lineality in the Second Commonwealth

There are however two Biblical narratives that some scholars have suggested do offer a Second Commonwealth historical origin for a full-blown matrilineal principle. In the fifth century BCE, Ezra bewails that so many of the ‘people of Israel, the priests and Levites have not separated themselves off from the peoples of land…They have taken daughters as wives for themselves and for their sons so that the holy seed had become intermingled with the peoples of the land.’ (Ez 9:1-2).[10] Overhearing this Shecaniah, son of Jehiel suggests a response, ‘there is still hope for Israel, let us make a covenant with our God to expel all these women and those who have been born to them in accordance to the bidding of the Lord…Take action, for the responsibility is yours [Ezra] and we are with you.’(Ez 10:2-4). Ezra accepts the advice, and at a meeting of all the men of Judah and Benjamin demands that the men ‘separate themselves from the peoples of the land and from the foreign women. The entire congregation responded in a loud voice, “we must surely do just as you [Ezra] say.’ (Ez 10:11-12). There then follows a list of those Israelite males who had married non-Israelites and had children by these wives and the book closes without confirming that these women or children are in fact expelled. Through time many scholars have used this incident as an example of the historical origin of the application of the matrilineal principle. The oldest recorded claim of this nature is probably R. Haggai’s response to Jacob of Kefar Neburya.[11] A more recent supporter is L. Schiffman who, citing the Ezra incident states, ‘[It is] most likely … that already at this time there was a definite distinction between males and females regarding intermarriage. Whereas all intermarriages were prohibited, the offspring of Jewish mothers were considered Jewish.  The offspring of non-Jewish mothers were not.’ [12]


·                While the Ezra incident clearly stresses the Biblical perception of the evils of intermarriage there is no suggestion on the face of the text that a matrilineal principle is being applied. The question of why Ezra only sought the expulsion of the women and their children (as opposed to non-Israelite men and their children) does require explanation, but there is no need to read these verses as giving evidence of the Biblical origin of the matrilineal principle. As Cohen suggests it might be that the children of non-Israelite fathers and Israelite mothers were so obviously not to be considered part of the Israelite nation that there was no need to expel them. Alternatively the reason Ezra spoke only to the Israelite men is that these were the only people over whom he had jurisdiction. I will return to discuss the problem of intermarriage later, but it is important to stress that this text is not strong proof of the Biblical historical origin of an application of a principle (exegetical origins are of course something quite different).


·                Ezra’s attempt at expulsion has no exact parallel in Nehemiah (C5 BCE), but the final verses of this book contain another tantalizing fragment that may or may not be important to our tale. ‘“How, then can we acquiesce in your doing this great wrong, breaking faith with our God by marrying foreign women?” One of the sons of Joiada, son of the high priest Elishab was a son-in-law of Sanballat the Horonite; I drove him away from me … Oh my God, remember it to my credit’ (Neh 13:27-28 & 31). For Zeitlin this is the historical origin of the matrilineal principle and its appearance may be explained as motivated ‘by political and religious reasons.’[13] During the time of Nehemiah the Samaritans wished to build a Temple on Mount Grazin. This plan was spearheaded by Sanballat the Horonite (a non-Israelite) who thereby became the enemy of Nehemiah who was loyal to Jerusalem. Sanballat, knowing he that needed officiants of Priestly descent to serve in the Temple, gave his daughter in marriage to the grandson of the High Priest Eliashib with a view to her giving birth to Priests who would serve on Mouth Grazin. Zeitlin suggests that the matrilineal principle was invented as a response to this threat. By deeming the children of this daughter not even Jewish they would be unable to serve in the Mount Grazin Temple. While Zeitlin does cite another example of a law enacted in order to destroy any rivalry to the Temple in Jerusalem his argument seems tenuous at best and is uncorroborated by any Rabbinic text. As suggested above one needs to be careful to distinguish both between a one-off incident and the dawning of a new principle and between the principled objection to inter-racial coupling and the development of a matrilineal principle.[14]


·                Apocryphal texts also operate in similar fashion to texts from the Bible. Examples of the insistence of keeping the ‘seed’ pure are common, unambiguous applications of any supposed matrilineal principle are absent. The Book of Jubilees for example does not suggest the Hebrew/Cananite couplings of Shimon and Judah result in children that are not Hebrews. (34:20). In fact while Jubilees does note that ‘Simeon repented and took a second [possibly Hebrew] wife from Mesopotamia’ (34:21)[15] there is no mention of Judah marrying anyone other than ‘Betasuel, a Canaanite,’ a coupling which in would, if the matrilineal principle were in effect, render all the decedents of the tribe of Judah paradoxically not-Jewish! There is similar agnosticism in Testament of Judah and the Temple Scroll.


·                The Jewish historians of the time of the Destruction of the Temple also seem to have no knowledge of the principle. Philo calls the children of both Israelite father and non-Israelite mother and Israelite mother and non-Israelite father bastards. Josephus is also un-aware of the principle.[16]


·                One other pre/non-Rabbinic pair of texts warrants comment. Matthew 1:1-17 (dated between 70-115 CE)[17]and Luke 3:23-37 (circa 80 CE)[18] were both written by self-defined Jews who wished to make a claim for the noble lineage of Jesus. Despite their shared belief that Joseph was not the father of Jesus both trace Jesus’ lineage through Joseph, Jesus’ ‘non-father.’ These Gospels’ desire to lay claim to a worthy patrilineal heritage for Jesus is so great that they are prepared to ignore paternity. This is even more remarkable if one acknowledges that the claim for Jesus’ patrilineality meditated through Joseph seems to tempt questioning of the immaculate fathering of Jesus.[19] It seems that these authors place such a great importance on tracing the lineage through the father that they are prepared to overlook the theological danger of this approach. It seems that up to and including immediate post Second Temple Palestine, to have a line of inheritance meant to have a line of inheritance through the male line. The idea that holiness could be passed through the maternal line seems unusual, and inferior.


·                Mishna Kiddushin 3:12[20]

·                Until the time of the Mishna we have seen nothing to suggest that there is a matrilineal principle. Indeed all evidence points instead to a strong patrilineal principle. This is acknowledged by Cohen and others. Cohen then suggests a shift of principle in the time of the tannaim, a move away from one position in order to adopt its opposite. There was, he states, ‘a transition from biblical patriliny to mishnaic matriliny.’[21] This seems to me incorrect. Indeed the central text Cohen cites to prove the primacy of ‘mishnaic matriliny,’ Mishna Kiddushin 3:12, seems to do nothing of the sort. Certainly the Mishna does contain hiddushim, new ways of settling grey areas in the law, but, rather than signaling a move away from patriliny it continues the Biblical trend of laying emphasis on the male. I have divided the Mishna into four sections and will comment on each in turn. I cite the Mishna in its entirety here for convenience.


·                Mishna Kiddushin 3:12

·                Section A

/rŠf²Z©v r©j©t Q‡kIv sŠk²U©v 'v¨r‡c…g ih¥t±u ih¦JUS¦e J¯H¤J oIe¨n kŠF

/k¥t¨r§G°h‰kU h°u‡k‰kU i¥v«f‰k ,t¥A°B¤J ,hˆk¥t§r§G°h±u v²H°u‰k ,®b¤v«f Iz 'v®zh¥t±u


Section B

/oUdŠP©v r©j©t Q‡kIv sŠk²U©v 'v¨r‡c…g J¯h±u ih¦JUS¦e J¯H¤J oIe¨n kŠf±u

,‹C 'k¥t¨r§G°h‰k v²bh¦,±bU ,¤r®z§n©n 'yIh§s¤v i¥v«f‰k vŠmUk£j³u v¨JUr±D 'kIs²D i¥v«f‰k v²b¨n‰k©t Iz 'Izh¥t±u

 /ih¦,²b‰kU r¯z§n©n‰k k¥t¨r§G°h


Section C

/r¯z§n©n sŠk²U©v 'ih¦JuS¦e oh¦r¥j£t k‹g VŠk J®h kŠc£t ih¦JUS¦e uhŠkŠg VŠk ih¥t¤J h¦n kŠf±u

 /v¨rIT‹C¤J ,Ih¨r…g¨v kŠF¦n ,©j©t k‹g tŠC©v v®z 'v®zh¥t±u


Section D

/V¨,In‰f sŠk²U©v 'ih¦JUS¦e oh¦r¥j£t k‹g tO±u uhŠkŠg tO VŠk ih¥t¤J h¦n kŠf±u

:,h¦r‰f²b±u v¨j‰p¦J s‹k±u v®z 'v®zh¥t±u


·                Section A

·  Whenever there is kiddushin and there is no sin [in the coupling of father and mother], the child follows [the status] of the male [the father].[22]

·  And who is this? This is a female Cohen, Levite or Israelite to a male Cohen, Levite of Israelite.


·                Contrary to Cohen’s claim, then, a ‘fully kasher[23] Jew is not Jewish following the Jewish status of their mother, but rather their father. The default position and the prejudiced position of Rabbinic Judaism is patrilineal descent. It seems necessary to begin any consideration of this area of law with this acknowledgement. I have been surprised to find that only one of the modern studies of this question have done so in anything approximating to the clear and direct language of the Mishna itself.[24] P. Hiat and B. Zlotowitz, in an article whose very raison d’etre is the collecting of sources of patrilineality, interpret this section of our Mishna as concerned only with ‘preserving the purity of the kehuna’ and applying only to the ‘social status,’[25] by which they mean the child’s status as one of either a Cohen, Levi or Israelite. But there seems to be no reason to limit the straightforward meaning of the reisha to this subsidiary matter of intra-religious or social status. The continuation of the Mishna clearly suggests that the technical term, ‘lkuv skuv’ applies to all matters of status, both intra and inter-religious and there is no form of words used in Section A itself to suggest the narrow reading offered by Hiat and Zlotwitz.


Once one acknowledges the default position of Rabbinic Judaism to be patrilineal (and not matrilineal) several observations become possible.

Firstly Rabbinic Judaism now seems a good deal closer to the Bible than one might have thought. The Bible is basically a patrilineal narrative and this is the default position taken by the Rabbis.

Secondly Biblical/Rabbinic Judaism is no longer such an odd fit amongst other ancient religions/nations, seeming to advance primacy for women in one central area where elsewhere tending to a range of responses towards women that are less honorific.

Thirdly the search for historical precedent for matrilineality in the Bible becomes far less important than one might have presumed were matrilineality to be the default position as opposed to a fallback position. Had Schiffman or Zeitlin not felt such a burning need to root the matrilineal principle in Biblical text, perhaps they would not have forced their readings of Ezra and Nehemiah. Of course the search of the Rabbis for a halachic asmachta, a hook on which to hang their new articulation of a back-up position, remains valid, but this is, as I have suggested above, not a matter for the historian.


 Having acknowledged this default – patrilineal – principle we may now turn to fallback positions. How will rabbinic Judaism treat ‘grey areas’ where the default position of sinless and effective kiddushin does not apply? We may assume that if a child is born of a non-Jewish mother and a non-Jewish father it will be non-Jewish, but what if only one of the parents is Jewish? Before the Mishna turns to this question it considers two other issues of ‘gray area’ status. What if there was a sin committed in the kiddushin of the parents, what if kiddushin could not take place between these particular Jewish parents?


Section B

When there is kiddushin and sin, the child follows [the status] of the defective.

And who is this? This is the case when a widow is married to a High Priest or a divorced woman or a haluzah to an ordinary priest or a mamzeret or a netinah to an Israelite, and the daughter of an Israelite to a mamzer or a natin.


This is, as the Rambam notes, problematic; while the offspring of a mamzer and an Israelite does indeed take the status of the defective parent (i.e. becomes a mamzer regardless of the gender of the mamzer parent). The offspring of a priest’s sinful kiddushin does not follow either the status of the father or the mother, rather it becomes something new – a halal [lit. a profaned one], one excluded from the Priesthood. Since the meaning of the Mishna does not correspond to the language it uses (and since the word hapigum is attested in all the manuscripts[26]) it seems that the term and the structure of the Mishna seek to convey something beyond a mere legal modality. I suggest the baal hamishna wishes to convey a very measured response to the disgust he feels towards actions that, literally, profane the Priesthood. “If you,” the Mishna addresses the male Priest, “do something flawed/profane and that action results in offspring, then that child shall be labeled flawed/profane.” One can see in this measured response either politics or religion. Politically this acts as a deterrent. Religiously there is something like a midah caneged midah punishment of the child for the sin of the parent. It is as if there has been some violation of a cosmic order prescribing only certain potential mates for Priests and Israelites. Violation of this cosmic order brings as a quid pro quo the measured response of the child’s exclusion from that part of the cosmic order the father was born into. I believe that once one starts to see either deterrent or this midah caneged midah at work at this point in the Mishna, one begins to develop a different understanding of the matrilineal principle than is offered in previous works.


If this reading is correct then this is the Section of the Mishna that is concerned with ‘preserving the purity of the kehuna’ and the ‘social status’[27] of the offspring. This strengthens the contention made above - Section A is not to be understood to apply only to matters of ‘social status’ rather it must be seen as setting the default position for both inter and intra-religious status.


Section C

We see this deterrent or midah caneged midah pattern repeated in the Section C of the Mishna.


And anyone who couples with someone but couldn't have kiddushin with that person, but could have kiddushin with others, the child is a mamzer.  

And who is this? This is one who couples with one of those prohibited under the laws of exogamy in the Torah.[28]


·                We should note that the mamzer is in law a Jew, obligated to fulfill all the mitzvot, however the mamzer is excluded from marrying (kiddushin lo tosfin) Priests, Levites or Israelites (mamzerim can marry one other). Thus the measured response may be expressed like this, “if you could have had kiddushin but instead coupled with another Jew in a way that precluded kiddushin, your offspring shall be a Jew precluded from kiddushin.’ Again this can be seen cosmically as midah caneged midah or as a deterrent as suggested above.


This Section of the Mishna can be understood to articulate a ‘Goldilocks Principle;’ seeking to strike a balance between coupling with those too close[29] (unacceptable) and coupling with those too far away (also unacceptable), and seeks a choice of mate that is, in the words of our fairytale-heroine, ‘just right’.


Section D

Finally we get to our third fallback position, the case of only one Jewish parent.


And [anyone who couples with a woman] who could not have had, either with him or any other man kiddushin, the child is like her.

And who is this? This is the child of a female slave or a female non-Jew.


The first thing to note is that this Section of the Mishna is not a full articulation of the matrilineal position; it gives us only the law for a Jewish father and non-Jewish mother. For an articulation of how to approach the child of a Jewish mother and non-Jewish father one needs to turn to Masechet Yevamot. Such a fragmented approach seems messy, especially if this Mishna really marks the ‘transition from biblical patriliny to mishnaic matriliny’ as Cohen suggests. If however this Mishna heralds no such grand shift then this half-hearted articulation becomes less of a concern.


There is something else to be understood from the way this Section addresses itself solely to the non-Jewish mother. This section is about excluding a possible Jew from the community, not about counting as a member one with a Jewish mother and non-Jewish father. Putting aside, for the moment, Yevamot the whole issue of status becomes a case of an ‘excluded middle,’ one of the classic responses of the Rabbis to gray areas of law. There is nothing dramatic about the Mishna examining a mixture of permitted and prohibited and finding the result prohibited. As Neusner claims, ‘gray areas in general, and the excluded middle in particular, cover the surface of the law. They fill up nearly every chapter of the Mishna,’[30] and he brings dozens of examples from the six orders of the Mishna to prove his case.


I suggest that we need not look to this Section for any grand articulation of marked shift in principle. Rather it is simply a continuation of the measured deterrent or midah caneged midah response to defective couplings we have seen in Sections B – D. Just as the Bible is primarily concerned with the case of Israelite males coupling with non-Israelite females, so too the Mishna expresses its reprobation of this action in the context of deterring Israelite men from coupling with non-Jewish women. This Section can be expressed as, “if you think you can multiply your seed by coupling outside the Israelite community, that seed shall be deemed outside the community.”


Now we can understand this half of the matrilineal principle in context. Far from being to the honour of the woman this section is about the disgrace of the father. As a matter of principle it seems all but entirely uninterested in the mother. If the purpose of procreation, as construed by the patrilineal Mishna and the religious and social system in which the Rabbis were operating, is to create offspring to continue the line of the father, the Rabbis respond to the pigima of coupling with a non-Jew by having the child follow the pigma, just as is the case in Section B. It is correct to note that the status of the child of a Jewish father and non-Jewish mother will be matrilineal, but this is surely accidental to the main purpose of the Mishna. The entire focus of Sections B, C and D is deterrent and/or midah caneged midah punishment of the child for the sins of the parent. In Section B & D the punishment for a non-sanctioned coupling is that the child holech achar ha pigum – follows the status of the defective, which in the case of the Jewish father and non-Jewish mother happens to mean the child is deemed matrilineal, but this is a practical outcome, not a principled stance.


Looking at the Mishna as a whole an underlying theological concern becomes clear. The Mishna may be expressed in terms of covenantal membership and ability to act in a covenantal manner.

The High Priest is the most restricted category, followed by a normal Priest, a breach of their covenantal responsibility results in offspring that are precluded from the brit shalom/brit melach, the covenant of the Priesthood.

Next is a more serious breach, if an Israelite couples with a mamzer, the child will be a mamzer, [31] a member of the covenant, but precluded from marital relations with other Israelites – precluded from sustaining the covenant of the people of Israel.

Finally the most serious breach, if an Israelite couples with a non-Jew or slave their offspring are non-Jews – they are precluded from the covenant of in all respects.[32]


In seeing this pattern clearly the modern reader needs to transcend a modern deep discomfort with the mamzer when compared to a mere mild discomfort (if at all) felt towards the non-Jew. For the Rabbis of the Mishna the reverse is the case. Non-Jews were of a lower status than mamzerim.[33]


A Dead End

If Section D is to be read as a threat of a measured response where the prospect of matrilineality is not a grand new articulation, but rather an ancillary detail, one of the commonly suggested reasons for Judaism’s adoption of matrilineality fall by the wayside. This is that Judaism adopted matrilineality due to the uncertainty of paternity when contrasted to the certainty of matrilineality.


As Zeitlin has shown,[34] Rabbinic Judaism has remarkably little struggle with the ‘uncertainty of paternity.’ Rabban Gamliel and R. Eliezer are prepared to accept an unmarried woman’s testimony as to the father of her child (Mishna Ketubot 1:9) and even in the case of a woman who conceives in a rape the Rabbis do not opt for matrilineal certainty but instead attribute to the child the status of ‘most of the men of the town’ (M. Ket 1:10). But there is no need to even consider this reason. If matrilineality is a fallback position and a punishment, the question of certainty never arises.


The Reason for the Exclusion of the Child of a Jewish Father and Non-Jewish Mother

It seems that the theological root of the exclusion of the child of a Jewish father and non-Jewish mother from the covenant is, as has been noted above, a straightforward development of Biblical attitudes towards Israelite males coupling with non-Jewish females. The Biblical disgust with this action is so great that the Rabbis refuse to grant to the child the ‘proper’ lineality of the child of a ‘proper’ coupling. We may therefore see the refusal to acknowledge one with a Jewish father and non-Jewish mother as an attempt to prevent intermarriage.


The way that theology drove law in regard to the prevention of intermarriage is articulated with great clarity by S. Cohen, but oddly, only his work on intermarriage. Nowhere in his work on matrilineality does is he as clear as in the earlier work I cite here.


‘Moses did not think is necessary to forbid marriage with all foreigners, but later Jews did. During the period of the second Temple, with the loss of national sovereignty and the increased interaction with gentiles, the Jews sense that their survival depended upon their ideological (or “religious”) and social separation from the outside world. Since the Mosaic legislation was inadequate for their needs they erected new barriers between themselves and the gentile, especially during the Maccabean and rabbinic periods. But in order to emphasize the seriousness of these taboos, many Jews argued that they were of Mosaic origin.’[35]


This seems true, but the Rabbis did not stop at legislating to forbid inter-marriage (and here I go further than Cohen) they also deprived the offspring of these couplings membership of the covenant.


The Jewish Mother and Non-Jewish Father in the Mishna

We must now turn to the other half of the supposed matrilineal principle, the case of a Jewish mother and non-Jewish father. As has been noted this is not attested to in Kiddushin, but rather Yevamot. S. Cohen states, ‘Elsewhere the Mishna does refer to this half of the matrilineal principle. M. Yevamot 7:5 states, without giving any reason that the child of a Jewish mother and a gentile or slave father is a mamzer.[36]  But this is not an articulation of the matrilineal principle. The mother is not a mamzer, and therefore the child of a relationship between a female-Jew and a male non-Jew is not following the status of the mother, even if the father is a slave. And there is no other tannaitic text which states, in the terms my Sunday School teacher, the notion that the status of the child of a non-Jewish father and Jewish mother follows that of the mother.[37] I suspect the root of my discomfort with S. Cohen’s article is that he has assumed the matrilineal principle existed in Mishnaic Judaism, despite all the difficulties that this approach affords him. I suggest it is preferable to assume that the principle does not exist until that time in history when there is sufficient evidence to suggest that it does.


While the Mishna in Yevamot does not expound a matrilineal principle, it is evidence of a difference in treatment of children depending on which of their parents were Jewish.


Mishna Yevamot 7:5

i¥v«F ,‹C 'i¥v«F‹k k¥t¨r§G°h ,‹C 's‹mh‡F /g©r®z oU­¦n k¥xIp Ibh¥t±u 'v¨thˆC oU­¦n k¥xIP s†c†g¨v

/s†c†g v®z h¥r£v 'i‡c UB¤nh¥v v¨s‰k²h±u 'v¨j‰p¦­©v k‹g J‹C‰f°b±u i‡C©v Q‹k¨v±u 'i‡c UB¤nh¥v v¨s‰k²h±u 'k¥t¨r§G°h‰k

/v¨nUr§T‹C k‹ft«T 'k¥t¨r§G°h‰k i¥v«F ,‹C /v¨nUr§T‹C k‹ft«, tO i¥v«F‹k k¥t¨r§G°h ,‹C uhˆc¨t o¥t v¨,±h¨v

vŠf‰k¨v±u ',‹c UB¤nh¥v v¨s‰k²h±u 'k¥t¨r§G°h‰k i¥v«F ,‹cU 'i¥v«F‹k k¥t¨r§G°h ,‹C 's‹mh‡F /khˆf£t©nU k¥xIP r¯z§n©n

r¯z§n©n v®z h¥r£v 'i‡c UB¤nh¥v v¨s‰k²h±u 'hID‹k It 's†c†gŠk ,t¥¬°b±u ,‹C©v

 [There is a legitimate relationship] and he gives birth to a son, the son goes and messes around with a female slave, and he gives birth to a son. Behold this is a slave.[38]

....[There is a legitimate relationship], and he gives birth to a daughter and the daughter goes and marries (nisat !) a slave or a non-Jew and he gives birth to a son, behold this is a mamzer.


The second part of this Mishna is difficult to explain. While it does not contradict M Kiddushin 3:12, it might have echoed its sentiment more clearly if it had considered the child a non-Jew.


The sense is that the child of a Jewish father is excluded from the covenant in total, but the child of a Jewish mother is ‘merely’ excluded from the community. I am unsure what, if anything, to read into this disparity. It might be that the tannaim saw the status of mamzer as a general way of expressing disdain for the behaviour of women who marry out, but, possibly owing to a sense of mercy to a Jewish woman who has transgressed in this way if she still wished to remain within the community, and in this case opted not to exclude her child from the covenant (render the child a mamzer). This leniency might be felt possible in the light of the Bible’s relative silence in not condemning female Israelites marrying male non-Israelites in anything approaching the terms used to condemn intermarriage of Jewish males. If this is the case then we may see the theological concern of this Mishna as at least generally in line with the Mishna in Kiddushin – the elimination of intermarriage, even if the practical implication of their principled stance is different.


The Jewish Mother and Non-Jewish Father in the Gemorah

The Talmud discusses the issue of the status of the Jewish mother and non-Jewish father, not in the context of Mishna 7:5, but in the fourth chapter, folios 44-45. I will return to this detail later. The first mention of the possibility of the child of a Jewish mother and a non-Jewish father being kasher is a statement of Rav Yosef (45a) who seems frustrated at the vast list of amoraim who have been cited in support of such a child being seen as a mamzer.

Said Rav Yoseph, is it a great thing to enumerate persons? Surely it was Rab and Shmuel in Babylon and R. Yehoshua ben Levi and Bar Kapara in the Land of Israel…who stated that if a non-Jew or a slave had intercourse with an Israelite daughter the child is kasher. No, said Rav Yoseph, it is the opinion of Rebbi. For when Rav Dimi came he stated in the name of our Master (Rebbi) that if a non-Jew had intercourse with an Israelite daughter the child is a mamzer.


This is confusing, does Rav Yoseph believe Rab, Shmuel and others believe the child is kosher or does he believe that their belief is incorrect? Is he disagreeing with the reporting of a masorah or with the application of law? In any event one does have a sense that the direction of the sugya is shifting at this point. The next authorities cited, Rav Yehoshua Ben Levi (first generation Amora from Israel),[39] and Rav Natan and Rav Yehuda Ha Nasi state unequivocally that the child of this relationship is kasher, even if forbidden to marry a Priest.[40] Still more authorities (Rav Matena, Rav Yehuda, Raba) are lined up in support of the kashrut of the child of such a relationship and the discussion is concluded with the statement,

/aht ,atc ihc vhubpc ihc wraf skuv - ktrah ,c kg tcv scgu ohcfuf scug :t,fkvu

And this is the law: A non-Jew or a slave who comes upon a Daughter of Israel, the child is kasher,[41] whether [the mother] is unmarried or married.


It is however clear that as late as the third generation of amoraim, both in Bavel and Eretz Yisrael, the matter is in dispute. Rav Dimi (Amora third generation Bavel), Rav Yitzchak bar Avudimi (A 3B), Rav Acha (A 3B?), R. Tanchum (A 3Y), Rav Ami (A 3Y), R. Yochanan (A 2Y), R. Eleazar (A 3Y) and R. Chanina (A 3Y) all consider (as the Mishna suggests) such a child as a mamzer.[42]


So here is the source of the matrilineal principle - a child receiving the status of the Jewish mother, not the non-Jewish father. It may be traced to Rebbi (though this masorah is in dispute), but is certainly the opinion of Rav Yehoshua Ben Levi. While controversial until the third generation of amoraim, it is accepted by the stam of the Gemorah as representing law.


While accepted, and normative today, this position runs against that of Mishna Yevamot 7:2, which states the child is a mamzer. The inclusory nature of this part of the principle also seems to run counter to the ‘excluded middle’ spirit of Mishna Kiddushin 3:12. I suspect that to understand what if any theology lies behind this radical hiddush one needs to read the discussion in the Talmud in the light of the Mishna in which it is found.


As mentioned above this discussion takes place not in its proper place (the Seventh Chapter), but in the Fourth Chapter, in the broader context of a Mishna that extends the application of the status of mamzer to classifications broader than the Bible suggested.

·  Mishna Yevamot 4: 13 (B. 44a)

·  The one who returns to his divorcee or marries his halutza, or marries the relative of his halutza, he must send her out [divorce her] and any child is a mamzer, these are the words of Rabbi Akiva. The hachamin say, the child is not a mamzer. But they agree that where the one marries the relative of his divorcee, the child is a mamzer.


Almost immediately the Gemorah reins back this extended application of mamzerut.

·  Rabbi Yosef said Reish Lakish said, ‘all agree that the one who returns to his divorcee the child is not permitted to the Prtiesthood [but is not a mamzer]’ (Yev 44a-b)...


·  One who marries a relative of his halutza, Rabbi Akiva said, there is no kiddushin, she doesn’t need a divorce document from him and she is unfit to marry a priest [pasulah] and her child is unfit to marry a priest [pasul] and we force the man to send her out. The hachamim say, there is kiddushin, she needs a divorce document from him, she is kashera and the child is kasher [the Gemorah asks] ‘fit’ to whom? The Priesthood? No the whole community [i.e. according to both Rabbi Akiva and the hachamim the child is not a mamzer.] (Yev 44b)


·                A claim that Rabbi Akiva makes that a certain child is a mamzer is re-defined to suggest that the child is ‘merely’ a toevah, and refused from the Priesthood. (Yev 44b).


·                At the conclusion of this reclassification of those Mishna Yev 4:13 has deemed a mamzer as full members of the community (but in-eligible to marry Priests), we encounter the Mishna from the Seventh Chapter. This Mishna also classified a child as a mamzer in a way the Bible did not prescribe; we may therefore expect to see that our Seventh Chapter Mishna will also be reined back and the expansive classification of mamzer will be overturned and replaced with a classification as a full member of the community (but in-eligible to marry Priests). This is, as stated above, exactly what happens. At the historical point where the debate as to whether the child of a Jewish mother and a non-Jewish father is Jewish or a mamzer, and at the point of the redaction of the Gemorah, the concern is not on ascribing lineality to the mother, but on a desire of ammoraim to limit the tannaim’s expansive development of the status of mamzer.


·                This does not seem too theologically complex. The Bible takes a very strong position against those who, in Goldilock’s terms, couple with those who are too close - they are forbidden to enter the congregation to the tenth generation (Deut 23:3). The baal hamishna also wishes to discourage certain couplings, so labels the child produce of these relationships as mamzerim as if this were a catch-all classification for children born from undesirable couplings.[43] By the time of the amoraim the long term difficulties of classification of a person as a mamzer become too brutal and the classification is scaled back only to those whom the Bible specified. The practical effect of this principled stance is matrilineality, but, as in our analysis of Mishna Kiddushin 3:12, we need to distinguish between principle and practical effect if we wish to understand underlying religious meaning.


·                More Dead Ends

This analysis separates the two parts of the development of the current halacha by some 250 years. Scholars understand Mishna Kiddushin 3:12 to be Yavnean,[44] but the acceptance of the second half of the principle post-dates the third generation of ammoraim. I suspect this means we must reject perhaps S. Cohen’s most novel interpretation of the ideological origin of the principle – that it matches Mishna Kilayim 8:4.[45] Kilayim does offer a model for the status of the offspring of a horse and a donkey following the mother, (not the father and not becoming classified as a new species), but neither Mishna Kiddushin 3:12 nor Yevamot 7:5 offers a similar single articulation of this position in the case of humans.


I also argue that the possible Roman influence on Rabbinics seems a poor explanation when the centrality of matrilineality is downgraded and its development is understood as partial and disparate. Ulpian V:8 states in clear terms that ‘if there be connubium [which may be understood as something close to kiddushin][46] between the parents the children always follows the father. In the absence of connubium they follow the condition of the mother.’[47]


But this articulation, like Mishna Kilayim 8:4, is far cleaner than the articulation of our Mishna which does not simply contain Sections A & D, but sections B & C as well. Nor does it match Mishna Yevamot 7:3. It cannot come as a surprise that the default position of both Roman and Rabbinic systems is the patrilineal principle. This was the case for the vast majority of the Ancient World,[48] but whereas the Ulpian citation seems to establish a matrilineal principle that applies if either the father or the mother (or seemingly neither the father nor the mother) were capable of connubium and contracting justum matrimonium, our texts show matrilineality to be an incidental detail and not a principle. When one adds this insight to the major problems noted by S. Cohen[49] I suspect the evidence for a connection is weakened fatally.


I suggest the different desires that lie beneath the different halves of the de facto position of modern law alleviate the need to find one unifying theological or ideological root for the de facto position of modern law. Moreover retrospective attempts to graft unifying theoretical roots onto this ‘non-principle’ are likely to prove errant.



We have seen that there is no explicit ‘matrilineal principle’ in Biblical or Rabbinic Judaism. Rather Biblical and Rabbinic Judaism (and even proto-Christianity) consider patrilineal inheritance to be the proper way for a Jew to receive their status. From an ideological perspective this seems to confirm the androcentrism of Biblical and Rabbinic societies and texts. The de facto legal position that does exist in law; that the child with one Jewish parent is considered to have the status of its mother may be seen as the product to two different Rabbinic desires.

  • The Rabbinic dislike of inter-marriage and
  • The Rabbinic desire to limit the number of mamzerim in Israel.

Just as the Bible focuses on rejecting Israelite male inter-marriage, so too the Rabbis focus on rejecting the offspring of a coupling where the male intermarries. However as the Bible has less to say on the matter of Israelite female inter-marriage, there is room for the baal hamishna to articulate another option – the mamzer – the child takes neither the status of the mother or father. Realising that the Mishna seems to open up the possibility of multiplication of mamzerim the Rabbis of the Talmud reject this option and instead allow the restricted Jew (mamzer) to enter the community as a full Jew, albeit one prohibited from the marrying into the Priesthood.


As a final point I should say something about the nature of the relationship between the underlying principles and practical effects. It has been suggested to me that since the practical effects of the laws discussed in this paper give rise to matrilineal inheritance, we should consider that matrilineal inheritance is a matter of principle. This must be wrong. Moreover, as a matter of religious insight, the principle must be more important than the practical effects. One brief example drawn from a far less contentious area of Halacha may serve. As a matter of principle meat and milk may not be eaten together. Nothing could be clearer – as a matter of principle. As a matter of practical effect however, there are cases in which a large amount of meat into which a tiny piece of accidentally spilt milk may be eaten. That is the principle of eating meat and milk together is different to the practical effect of eating meat and milk together. No-one would claim otherwise. Nor should anyone claim that, as a matter of principle, Jews allow – in any circumstance – the eating of milk and meat together. The principle exists and demands investigation even if the practical effect of the totality of the legal system says something different to what the principle might claim.

[1] In this paper I have used the term Hebrew when referring to those born in the early Genesis narratives, Israelite to refer those born between Exodus and Ezra/Nehemiah narratives and Jew to those born thereafter - no other distinction between Hebrew, Israelite or Jew is implied. Exactly whether these Hebrews, Israelites or Jews are members of a religion, a race or a people is an issue beyond the scope of this paper and I have not attempted absolute consistency in my use of these terms – again no distinction between them is implied. Unless stated otherwise all translations are my own.

[2] S. Cohen, “The Origins of the Matrilineal Principle”, AJS Review 10,1 (1985) 19-53 (hereafter Origins).

[3] L. Schiffman, p. 45 “The Limits of Tolerance” in Conflict or Cooperation, Papers on Jewish Unity, (NY CLAL Publications, 1989) 39-46

[4] Origins, p. 21

[5] D. Schneider Matrilineal Kinship (Berkley, University of California Press, 1961) p vii

[6] V. Aptowitzer’s “Asenath, The Wife of Joseph” Hebrew Union College Annual 1 (1924) 239-306 details the rabbinic grappling with this particular incident in great detail.

[7] Origins p. 21

[8] Rashi understands Deut 7:4, ‘For he will turn your children away from me.’ to describe the case of a non-Israelite father turning the Israelite child of an Israelite mother away from God. For Rashi, only in the case of a non-Israelite father and Israelite mother would the child be considered both as belonging to God and in danger of being turned away from God by the presence of a non-Israelite parent. For Tosafot the coupling is of an Israelite father and a non-Israelite mother. The ‘he’ of the verse refers to the father of the mother who will turn away the Israelite son-in-law. Tosafot’s understanding does sit well with other verses (such Ex 34:16) that suggest the Bible’s chief concern was couplings between Israelite males and non-Israelite females, but does not really explain a Biblical root of the principle of matrilineality.

[9] S. Cohen, “From the Bible to the Talmud: The Prohibition of Intermarriage” Hebrew Annual Review, Vol 7 (1983) 23-39 p. 30, ‘The sins of Israel determine retrospectively the content of Biblical revelation.’ Loc cit p.30

[10] All translations from Ezra and Nehemia - New Jewish Publication Society.

[11] P. Kiddushin 3:14 64d and parallels

[12] L. Schiffman “At the Crossroads: Tannaitic Perspective on the Jewish Christian Schism”, in Jewish and Christian Self-Definition”, Volume 2, Aspects of Judaims in the Graeco-Roman Period, ed. E.P. Sanders et al. (Philadelphia, Fortress Press, 1981) pp 117-122.

[13] S. Zeitlin, p. 137, The Offspring of Intermarriage, Jewish Quarterly Review, 51 (1960) 135-140, Shiffman loc cit. also cites the Nehemiah passage in support of his claim, mentioned above, that the matrilineal principle was in effect in Biblical times.

[14] This latter distinction is accurately noted in B. Cohen “Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence”, Proceedings of the American Academy for Jewish Research 16 (1946-7) 1-37, p. 12

[15] Translation - Charles.

[16] See Philo, On the Life of Moses 2:36 §193 and Josephus, Jewish Antiquities 3.12.2 §276 for one example from each author, see Origins p. 28 for many other references.

[17] Interpreter’s Dictionary of the Bible III: 312 and sources cited there.

[18] Interpreter’s Dictionary of the Bible III: 185 and sources cited there.

[19] And indeed there is a manuscript of Matthew (the Old Syriac (Sinaitic)) that states that Joseph was the father of Jesus, see New Interpreter’s Bible, Vol VII p. 130.

[20] I first learnt this Mishna with Dr Steve Wald, Conservative Yeshiva 1999 and a number of ideas articulated in this section of the paper are his.

[21] Origins, p. 52.

[22] per Albeck and classical commentary.

[23] I use this term to apply to the child born out of a coupling where kiddushin applied and no sin was committed.

[24] B. Cohen “Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence”, Proceedings of the American Academy for Jewish Research 16 (1946-7) 1-37 p.12 is the honourable exception. Origins,  L. Schiffman, “At the Crossroads: Tannaitic Perspective on the Jewish Christian Schism, in Jewish and Christian Self-Definition”, Volume 2, Aspects of Judaims in the Graeco-Roman Period, ed. E.P. Sanders et al. (Philadelphia, Fortress Press, 1981) pp 117-122,  S. Zeitlin, p. 137, The Offspring of Intermarriage, Jewish Quarterly Review, 51 (1960) 135-140, L. Epstein, Marriage Laws in the Bible and the Talmud (Cambridge, Harvard University Press, 1942) esp pp. 174 and 194-197, and even P. Hiat and B. Zlotowitz, “Sources on Patrilineal Descent”, Journal of Reform Judaism (Winter 1983, 43-48) p. 46 fail to acknowledge this.

[25] P. Hiat and B. Zlotowitz, “Sources on Patrilineal Descent”, Journal of Reform Judaism (Winter 1983, 43-48) p. 46.

[26] Though often followed by the term ovhbaca/

[27] Terminology used by P. Hiat and B. Zlotowitz, ad loc, in their discussion of Section A of the Mishna.

[28] This is a loose translation designed to render the accepted meaning of this section accessible.

[29] Thereby possibly breaching the necessity of leaving the father and mother cleaving to another. (Gen 2:24)

[30] See Neusner, Judaism: The Evidence of the Mishna (Chicago, University of Chicago Press, 1981) p. 261

[31] The historical oddity of the netin need not detain us at this point.

[32] Section C does not fit so clearly into this structure, I suggest that the oldest version of this Mishna contained Sections A, B and D in order, Section C (the Goldilocks section) was then included to explain the origin of the mamzer since this category is mentioned in Section B and the possibility of creation of a mamzer not only existed in the time of tannaim, but would come about by virtue of defective coupling.

[33] Evidence for this relationship is suggested in the opinion of the Rabbi Tarfon in the next Mishna, Kiddushin 3:13, an opinion which only makes sense if one agrees the slave (and therefore a non-Jew by analogy) is a lower status than the mamzer and the coupling between the two results in the offspring gaining the status of the lower parent, thereby being born a slave. This hierarchical relationship is clearer in Mishna Horayot 3:8, ‘A priest takes precedence over a Levite, a Levite over an Israelite, an Israelite  over a mamzer, a mamzer over a netin, a netin over a convert …’ Even though a non-Jew can convert and a mamzer can never lose this status, the Rabbis view the convert as ‘lower’ than a mamzer, how much the more so we may assume they felt the mamzer more important than non-Jew.

[34] Zeitlin, op cit, p. 136.

[35] S. Cohen, p. 30 “From The Bible to the Talmud: The Prohibition of Intermarriage”, Hebrew Annual Review, Vol 7 (1983) 23-39, p. 36.

[36] Origins. p. 46. Tosefta Kid 4:16 also records a Tanna Kama position that such a child would be a mamzer.

[37] Rabbi Shimon’s disagreement with the Tanna Kama in the Tosefta cited above, that the child of the marriage would not be a mamzer is not a clear statement that the child is to be considered Jewish, nor can it be seen to be normative in Mishnaic times (see below).

[38] This seems an application of Section D of M. Kid 3:12.

[39] All generation attributions from H. Albeck, Mavo L’Talmudim (Tel Aviv, Dvir, 1969) pp 669-681.

[40] According to the Masorah of Rabin, but not according to the Masorah of Rav Dimi.

[41] Though not permitted to marry a Cohen.

[42] This wealth of disagreement is strong evidence for the claim made in footnote above; namely Rabbi Shimon’s claim that the child is not a mamzer cannot be seen as conclusive evidence that the child was considered Jewish. Rabbi Shimon could have considered the product of this mixed marriage an ‘excluded middle.’

[43] Or more specifically from couplings that would incur karet, see Yev 44a-b

[44] Origins, p.34, J. Epstein Introduction to Tanaitic Literature, ed E. Melamed [Hebrew] (Jerusalem: Magnes Press 1957), J. Neusner A History of the Mishnaic Law of Women (Leiden, Brill, 1980) 5:173 and 200-201.

[45] Origins p. 47

[46] B. Cohen, op cit, p 14.

[47] trans J. Muirhead.

[48] See D. Schneider Matrilineal Kinship (Berkley, University of California Press, 1961)

[49] S. Cohen acknowledges difficulties in charting how Rabbis might have learnt Roman law, and is unable to suggest any reason why Rabbis chose to base their articulations on the hated Roman system

Related Posts Plugin for WordPress, Blogger...