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.
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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. 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,
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.’
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.’ 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.’ 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.
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,’
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. 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.’
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).
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. 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.’
·
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.’ 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.
·
·
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)
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.
·
·
One other pre/non-Rabbinic pair
of texts warrants comment. Matthew 1:1-17 (dated between 70-115 CE)and
Luke 3:23-37 (circa 80 CE)
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. 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
·
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.’
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].
·
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’ 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. 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,’ 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)
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’
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.
·
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 (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,’
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, 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.
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.
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,
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.’
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.’ 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. 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.
....[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), 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. 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,
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.
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.
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,
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. 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]
between the parents the children always follows the father. In the absence of connubium they follow the condition of
the mother.’
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,
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 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.
Conclusion
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.
Though often followed by the term ovhbaca/
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.
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