Mamzer

Mamzer
Halakhic texts relating to this article:
Torah:	Deuteronomy 23:3 (verse 2 in some English translations)
Babylonian Talmud:	Yebamoth 49a-b, 69a, 78b, 87b, Kiddushin 67b and 73a
Shulchan Aruch:	Even HaEzer 4
* Not meant as a definitive ruling. Some observances may be rabbinical, customs or Torah based.

The Hebrew noun mamzer (Hebrew: ממזר‎) in the Hebrew Bible and Jewish religious law, is a person born from certain forbidden relationships, or the descendant of such a person. A mamzer is someone who is either born of adultery by a married woman, or born of incest (as defined by the Bible), or someone who has a mamzer as a parent. The mamzer status is not synonymous with illegitimacy, since it does not include children whose mother was unmarried.

Mamzer is also a colloquial pejorative term in Hebrew and Yiddish for an unpleasant person, or in friendly way, a clever person.^{[citation needed]}

Definition

Etymology

The word mamzer is a masculine noun form derived from the root m-z-r having a meaning of spoilt/corrupt.^[1] The Talmud explains the term homiletically as consisting of the words mum (defect) and zar (strange/alien) a euphemism for an illicit union in the person's lineage (Kiddushin 3:12, Yebamot 76b)^[2]

Hebrew Bible usage

The term occurs twice in the Hebrew Bible, the first time in Deuteronomy 23:3.^[3] The Septuagint translates the term as son "of a prostitute" (Greek: ek pornes),^[4] and the Latin Vulgate translates it as de scorto natus ("born of a prostitute").

A bastard shall not enter into the congregation of the Lord; even to his tenth generation shall he not enter into the congregation of the Lord.

— Deuteronomy 23:2, 1611

The other occasion is in Zechariah 9:6: "And a bastard shall dwell in Ashdod".

Halakhic definitions

The Talmud indicates that the term mamzer applied to the descendants of specific illicit unions. In some cases, where the male parent was a Kohen (a member of the priestly lineage of Aaron) there is a related category called chalal. According to the Mishnah a mamzer is the offspring of a Biblically forbidden union (M.Yebamoth 4, Mishnah 13: "כל שחיבין עליו כרת בידי שמים". According to the Shulhan Arukh a mamzer can only be produced by two Jews (Shulhan Arukh Even haEzer 4:19).

There are two categories of mamzerim.

Children born of incest

A child born of incest (as defined by the bible) is a mamzer. Note, however, that an incestuous relationship between one or two non-Jews cannot produce a mamzer, and if the product of such a union were to convert he or she would be the equal of any Jew (Shulhan Arukh Even haEzer 4:21).

Children born of a married woman's adultery

A child born of a married woman's adultery is a mamzer. The child of a single woman and a man she could lawfully have married is NOT a mamzer (Shulchan Aruch E. H. 4) It is irrelevant if the man is married or not. If one of the parents is not Jewish the child is not a mamzer.

Any child born to a married woman, even if she is known to have been unfaithful, is presumed to be her husband's, unless she is so promiscuous that such a presumption becomes unsupportable,(Shulhan Arukh Even haEzer 4:15) or if she enters a public relationship with another man (4:16). A child born within 12 months of a woman's most recent meeting with her husband is presumed to be legitimate, since Jewish law believes that in rare cases a pregnancy can last that long (4:14). However if more than 9 months have elapsed and she is known to have been unfaithful then the presumption does not apply (Even haEzer Rama 4:14). Modern fertility treatment has complicated the issue. Rabbi Moshe Feinstein ruled that if a married woman is inseminated by sperm from another man the child is not a mamzer, since it did not result from an act of adultery; Rabbi Yoel Teitelbaum (2005) disagreed, and ruled that since the child is known to be that of a man other than her husband it is a mamzer.^[5]

The status of a abandoned child (Hebrew: asufi) was determined by the state in which it was found. If there were indications that the foundling had been abandoned due to the parents being unable to support it, then Halakhically the child would not be a mamzer.^[6] However, if the unknown parents could have supported the child, it was regarded as potentially being a mamzer.^[6] A child whose mother is known, but not the father, was known as a silent one (Hebrew: shetukhi), and fell into the same category as a foundling;^[6] this status, however, could be changed if the mother knew and revealed the identity of the father.^[6]

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

Marriage restrictions

The biblical rule against certain people becoming part of the congregation of the Lord^[7] was interpreted in the Talmudic as a prohibition against ordinary Jews marrying such people. Although the biblical passage includes in this up to the tenth generation of the descendants of a mamzer, classical rabbis interpreted this as an idiom meaning forever. Thus, in traditional Jewish religious law, a mamzer and his or her descendants are not allowed to marry an ordinary (non-mamzer) Jewish spouse.

The restriction does not prevent a mamzer from marrying another mamzer, nor from marrying a convert to Judaism, or a non-Jewish slave. However, foundlings suspected of being mamzerim were not so free; they were neither permitted to marry a mamzer, nor even to marry another foundling.^[6]

Social status of Mamzerim

Although in many historical societies, illegitimacy of birth was a quality which could make a man somewhat of an outcast, this was not the official attitude of Judaism; apart from the marriage restrictions, a mamzer is not officially considered a second class citizen, and is supposed to be treated with as much respect as other Jews.^[8] For example, the Mishnah teaches that a learned mamzer should take precedence over an ignorant Jewish High Priest;^[9] the meaning of take precedence is not explicitly explained by the Mishnah, nor by the Talmud in general, although the preceding part of the Mishnah uses it to refer to the priority in which people should be rescued from danger, while other bits of the Mishnah use the phrase to refer to the priority in which people should receive aliyot.^[10]

Rabbis in the Talmud, and those in the Middle Ages, saw fit to spell out that, aside from in questions of marriage, a mamzer should be treated as an ordinary Jew. The Talmud insists that a mamzer should be considered as an ordinary relative for the purpose of inheritance,^[11] including levirate marriage.^[12] Maimonides and Joseph Karo see fit to repeat this,^[13][14] and confirm that a mamzer can serve as a judge.^[15][16] Similarly a Tosafot insists that it is permissible for a mamzer to become a king.^[17] Some prominent historic rabbis^[specify] expound the view that the death of a mamzer should impact a Jewish priest as much as that of a non-mamzer^{[citation needed]}.

Modern investigations into mamzer status

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

Orthodox Judaism

The principal approach in Orthodox Judaism is to require strict evidentiary standards for mamzer status, sufficiently strict that proof of the existence of mamzer status is hard to develop and generally does not arise. Typically it is impossible to prove either that a prior marriage ever existed, or that a child was born of relations outside that marriage. Rabbis always allow the suspect child the benefit of the doubt in this matter. This usually leads to the conclusion that at the time of a person's birth, their parents were married or that the person is the son of a man who was married to his mother.

An example is a contemporary responsum by the well-known Israeli Posek Rabbi Ovadiah Yosef to Rabbi Grubner of Detroit, Michigan, establishing an impossibility to prove mamzer status in a situation where the evidence might appear to be clear-cut. The case involved the daughter of a woman who had been married by a Haredi rabbi to a husband who subsequently converted to Christianity and refused to participate in a Jewish divorce. The mother eventually divorced and remarried civilly and had the daughter years later. The daughter, who had been raised as an Orthodox Jew and attended a Haredi day school, brought up the question of her status herself prior to an impending marriage. Rabbi Yosef proceeded systematically to disqualify evidence that a prior marriage had ever taken place. The mother's evidence was immediately disqualified as an interested party. The ketubah (Jewish marriage contract/certificate) was never found. The rabbi who performed the marriage was contacted, but Rabbi Yosef wrote that his testimony could not be accepted without the ketubah, and in any event required corroboration by a second witness. Attempts to contact the husband were abandoned after an adversarial conversation with his new, non-Jewish wife. Thus, Rabbi Yosef concluded there was insufficient evidence that a valid prior marriage had ever taken place. Rabbi Yosef then proceeded to establish the possibility that the former husband might be the daughter's father. The mother testified that her former husband occasionally brought alimony payments and came for visitation in person and hence the two were sometimes at least momentarily alone together. Applying an ancient rule that when a husband and wife are known to be alone together behind a closed door the law presumes sexual intercourse may well have taken place, Rabbi Yosef concluded that it was possible the former husband was the daughter's father and hence Jewish law, which very strongly construes all evidence in favour of birth within marriage, had to presume that he was. Thus, Rabbi Yosef concluded that there was insufficient evidence of either a former marriage or that the new husband was the father, and hence he concluded that no evidence of mamzerut had occurred.

Conservative Rabbi Daniel Nevins, commenting on this case, noted that the box of traditional tools Rabbi Yosef used to discredit evidence of mamzer status may be sufficiently robust as to cover virtually all cases of inquiry in the types of situations a congregation rabbi would be likely to experience.^[18] Nonetheless, Orthodox authorities hold that while contemporary rabbis have authority to refine procedural rules such as rules of evidence, they do not have the authority to abolish Biblically mandated categories or procedures entirely.

Conservative Judaism

The Committee on Jewish Law and Standards (CJLS) of the Rabbinical Assembly of Conservative Judaism has declared that Conservative Rabbis should not inquire into or accept evidence of mamzer status under any circumstances, rendering the category inoperative. In doing so, the CJLS distinguished the Conservative approach to Jewish Law from the Orthodox approach, noting that Conservative Judaism regards Biblical law as only the beginning of a relationship rather than a final word, and that the Conservative movement regards it as its role and responsibility to revise Biblical law from time to time when such law conflicts with evolving concepts of morality.^[10]

Reform and Reconstructionist Judaism

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

Karaite Judaism

In Zechariah 9:6, the Hebrew word "Mamzer" is referenced similar to that of the nations of Ammon, Mo'av, Edom, Egypt, Tyre, Zidon, Ashkelon, Gaza, Philistia, and etc. From such, Karaites have come to consider the most logical understanding of the Hebrew word "Mamzer" to actually speak of a nation people. Karaites think that such an understanding fits perfectly into the context of both Deuteronomy 23 and Zechariah 9, and several Medieval Rabbinical Jewish sages felt it necessary to debate this topic with Medieval Karaite Jewish sages.^{[citation needed]}

In Israeli Law

In the modern State of Israel, the law concerning matters of marriage, divorce, and personal status, is partially under the jurisdiction of religious courts. For example there is no civil marriage in Israel. The Jewish religious regulations concerning mamzerim are thus also the national laws imposed on Jews living in Israel, including secular Jews. Because of the severe impediments to marriage which mamzer status accords in Jewish religious law, Israeli civil law has taken the position that the paternity of a child born within a marriage cannot legally be challenged in civil courts, in order to avoid creating a body of evidence that might be used to declare the child a mamzer, or create difficulties for a future marriage.

The existence of mamzer status as a category in Israeli family law has been criticized. An extensive review and opinion advocating the adoption of civil marriage in Israel, written by Prof. Pinhas Shifman and published in July 2001 by the Association for Civil Rights in Israel, mentions Mamzer among the categories of Israelis which Professor Shifman believes should have a right to marry a spouse of their choice and argues current Israeli law interferes with and denies that right. Professor Shifman and ACRI advocate ending the religious monopoly over marriage in Israel and cite the existence and difficulties of mamzer status as an argument against the use of religious law in marriage cases.^[19]

Israeli religious courts resolve mamzer status by generally ruling that the child was born within the marriage despite the existence of evidence to the contrary. This convenient formula sometimes causes difficulties for lovers or subsequent spouses who wish to assert paternity over a child which may be biologically theirs. A 2006 case, in which a child born eight months and two weeks after a divorce, was declared the former husband's child rather than the child of the wife's subsequent husband, and this was reported as causing a dilemma for the subsequent couple.^[20]

Israeli law resolution of the mamzer status by declining to consider claims that someone other than the husband might be the child's father is not inconsistent with the way a number of other countries. For example, in 1989 the United States Supreme Court upheld the constitutionality of a California law similar to the restriction Israel imposes on its courts, requiring children born within a marriage to be regarded as being children of the married couple and requiring courts to refuse to entertain paternity claims and evidence brought by a third party. The US Supreme Court held that such a law does not violate peoples' civil rights as the United States Constitution understands the term, holding that society's interest in the regularity of marriage outweighs individual rights in such cases.^[21] American law in this matter has also been criticized. The US Supreme Court decision was 5-4, with the court's members nearly evenly divided in their opinions on whether the practice of California and many other U.S. states violates civil rights (as understood in the United States) or not.

Nonetheless, the existence of the category of Mamzer, and the marital impediments inherent to it, is one of the arguments frequently used by Israeli secularists in calling for separation of religion and state and for the institution of civil marriage.

Connection with French Medieval nicknames

A persistant etymology of the surname Manser is connected to Hebrew mamzer.^[22] Supposedly Ebalus of Aquitaine, Count of Poitou and Duke of Aquitaine (c. 870 – 935) had the nickname "Manzer" or "Manser". As he is known to have been a bastard and reputed to have had a Jewish mother, this nickname is considered to be derived from "mamzer". A similar explanation is offered also for the same nickname as used by another Prince from Occitania, Arnaud Manzer, Count of Angoulême (born 952-died 988/92) who also was a bastard. William the Conqueror may have been referred to as Bastardus and Mamzer.^[23]

References

1. ^ Francis Brown, Samuel Rolles Driver, Charles Augustus Briggs, Edward Robinson, James Strong, Wilhelm Gesenius, The Brown Driver Briggs Hebrew and English lexicon: with an appendix containing the Biblical Aramaic : coded with the numbering system from Strong's Exhaustive concordance of the Bible, Hendrickson Publishers, 2005
2. ^ Jastrow's Dictionary
3. ^ Augustin Calmet Dictionary of the Holy Bible 1837 English edition p151 Charles Taylor, Edward Robinson "But the Vulgate, the LXX, and the authors of the canon law, take the Hebrew mamzer, (Deut xxiii. 2.) for the child of a prostitute ; while some interpreters take it for a generic term, which signifies illegitimate children "
4. ^ Deuteronomy 23:2-4, LXX
5. ^ Jakobovits, Yoel (2005). "Assisted Reproduction through the Prism of Jewish Law" (pdf). Jewish Action 65 (3): 26–29. http://www.ou.org/publications/ja/5765/5765spring/Prism.pdf. Retrieved 2007-03-27. ""However, many equally prominent rabbinic authorities maintain that only actual physical relations would confer this status on the woman."" 
6. ^ ^{a b c d e} This article incorporates text from the 1901–1906 Jewish Encyclopedia article "Foundling", a publication now in the public domain.
7. ^ Deuteronomy 23:2-4 (verses 1-3 in some English translations)
8. ^ Silberberg, Naftali. "What is the legal definition of a "mamzer"?". AskMoses.com. http://www.askmoses.com/article.html?h=236&o=2496. Retrieved 2007-08-06. 
9. ^ Horayot 3:8
10. ^ ^{a b} Rabbi Ellie Kaplan Spitz, Mamzerut, Committee of Jewish Law and Standards, EH 4.2000a, pp. 5587-585.
11. ^ Yebamot 22b
12. ^ Yebamot 22a
13. ^ Maimonides, Mishneh Torah, Mispatim - Laws of inheritance - 1:11
14. ^ Joseph Karo, Shulkhan Arukh, Hoshen Mishpat 276:6
15. ^ Maimonides, Mishneh Torah, Shoftim - Sanhedrim - 2:9
16. ^ Joseph Karo, Shulkhan Arukh, Hoshen Mishpat 7:2
17. ^ Talmud, Yavamot 45b Tosefot
18. ^ Rabbi Daniel S. Nevins, A Concurring Opinion Regarding Mamzerut, Committee of Jewish Law and Standards, EH 4.2000b, pp. 587-592
19. ^ http://www.acri.org.il/hebrew-acri/engine/story.asp?id=290
20. ^ Dayan, Aryeh (2006-09-07). "Better to be a mamzer or to grow up without a father?". Haaretz. http://www.haaretz.com/hasen/spages/756433.html. Retrieved 2007-10-30. 
21. ^ http://scholar.google.com/scholar_case?case=18282912377125168373 Michael H. V. Gerald D., 491 U. S. 110 (1989)
22. ^ The social life of the Jews of northern France in the XII-XIV Louis Isaac Rabinowitz 1938 "Yet we have not come across a single instance of an illegitimate child or a child born of incest (Mamzer)\ and there was even and there was even a Takkanah against a man calling another a Mamzer or illegitimate.... See Loewe, 11, note 9026 for the suggestion that the common name among English Jews " Manser " is derived ..."
23. ^ The History of the Norman Conquest of England: The reign of Eadward the Confessor Edward Augustus Freeman