I was once contacted by a BBC reporter who was doing a piece on the 'mamzer' law. The mamzer law is the Jewish law concerning children who are the products of forbidden sexual relationships such as incest or adultery. It considers the child spiritually wounded by the actions of his parents; the word in Hebrew stands for mum zar, or 'strange defect'. (Yerushalmi, Kidushin,3,14)
She called to ask if I would address the Orthodox side of the issue, but she warned me in advance that her report was so horrendous that I might not wish to appear on the clearly losing side of the argument. In any event, she called back to say that her editors felt they had enough material to go with and would I mind if we just cancelled the interview. It wasn't clear to me whether her editors did not want to present any argument on the other side no matter how 'feeble', as this might indicate that there is room for open mindedness on such a patently politically incorrect law, or whether they were simply convinced that there was nothing at all to say, so why waste the reporter's time. In any case, as the purity of Jewish lineage is a major theme of Vayechi, I decided to examine the subject in this essay.
WHO IS A MAMZER?
Before we examine the theory let us make sure that we are clear on the facts. A mamzer is created in two sorts of situations:
- A child born to a Jewish mother or father either of them mamzerim, or
- When two Jewish people who are not mamzerim but cannot marry each other under Torah law have a child together.
Thus, when a married woman has relations with a Jewish man who is not her husband the child is a mamzer. Similarly if a father has relations with his daughter or a brother with his sister, the offspring is a mamzer. This is true whether the mother entered these relationships voluntarily or not.
A child born out of wedlock is not a mamzer provided the parents could possibly have married each other. This is true even when Jewish law forbids the marriage. A mamzer is created only if the prohibition to marry is severe -- its violation carries at least a Karet penalty. [Karet means to sever -- i.e. the sinner is severed from his roots in the Jewish people.] A child whose father is a non-Jew is not a mamzer regardless of whether the mother was married or not.
The production of mamzerim does not require any sinful intent. A woman who was married under Orthodox law and had children from a second marriage after she got divorced and remarried in perfect innocence -- she thought she had a kosher 'get' and it turned out that she did not -- or being totally ignorant of Jewish law, she didn't know anything about the need for a 'get' and got married after a civil divorce -- despite her moral innocence and even purity, her children are mamzerim.
A mamzer is forbidden under Torah law to marry anyone who is not a mamzer. He can only marry other mamzerim or converts. The stigma of mamzerut lasts forever. All the descendants of a mamzer, male or female, carry the mamzer stigma until the end of time.
OFFENSIVE TO THE MODERN MIND
It is easy to see why modern people would find this law offensive. It is obviously not the mamzer's fault that he was born from a forbidden act, and in fact, as we have pointed out, very often a mamzer is produced without anyone at all being morally at fault, simply through ignorance of the Torah laws. Indeed, even the Talmud reinforces the idea that there is no personal dishonor attached to the status of mamzer; the Talmud rules that a mamzer who is learned takes precedence in matters of honor over a high priest who is ignorant (Hariot,13a). When you factor in the fact that in modern day Israel the totally unobservant are forced to marry in conformity with the Torah law, and therefore the mamzer is unable to get married legally except to another mamzer or a convert, the mamzer law leaves the territory of the merely offensive and enters the domain of the positively horrendous.
Now that we have the facts straight let us examine some of the issues.
THE PHILOSOPHICAL ISSUES
To help us obtain the proper perspective on the philosophical difficulties involved in the mamzer law, let us begin by taking note of the fact that parents have the ability to harm their children for generations in ways that we find perfectly acceptable. When a person with a high I.Q. decides to marry a "dumb blonde," certainly not a crime, there is a very high statistical likelihood that he inflicts the stigma of low I.Q. on his innocent descendants and we find nothing wrong with that. We have more problems with people infected with HIV getting married and having children, but for the meanwhile this is also not a crime. Neither is it a crime for people with genetic defects to marry each other. In all these cases we recognize the right of parents to inflict damage on their innocent descendants and place them in the position of being considered very undesirable mates for generations.
The objection to the mamzer law is based on two factors:
- The refusal to recognize the possibility that just as human beings are prey to physical defects that pass down the generations, they may be prey to similar sorts of spiritual defects. Since, in the view of the Torah, the most important aspect of a human being is spiritual rather than physical, it should come as no surprise that under the Torah system there are inheritable spiritual defects. But the presence or absence of the defect factor, while it may serve as an irritant, is really not the fundamental philosophical issue.
- It is the coercion element of the mamzer law that modern people find so problematic. For even if you concede the possibility of the existence of inheritable spiritual defects, that does not justify prohibiting the mamzer from marrying anyone who is willing to accept him or her as a mate. Just as people are entitled to produce dumb children by marrying people with low I.Q.'s, or children who will be born with HIV or genetic defects, they should be entitled to produce children with spiritual defects. Thus, even if we assume that mamzerut is a spiritual stigma that is inherited by the mamzer's descendants, the modern person would still find the idea of preventing the mamzer from marrying and passing on his defect an intolerable curtailment of civil liberties.
WHAT CONSTITUTES A HUMAN RIGHT?
As the issue of what is regarded as a curtailment of one's civil liberties is intimately related to the notion of 'rights', let us see if we can come to some rational understanding of the factors that define a human right. Specifically, let us focus on why we modern people find the whole idea of moral legislation objectionable.
What is the purpose of life? If we live in a secular world, where matters of belief are restricted to the domain of the individual conscience, as far as we as a society are concerned, the object of life must be the satisfaction of desires. The basis of social contract theory is that human beings form societies to maximize their individual welfare.
The promotion and encouragement of the satisfaction of desires and the pursuit of pleasures which do not directly harm other members of the social group is the fundamental reason for the organization of human societies from the point of view of social contract theory. The moral correctness of such desires is a matter that can only be determined by the individual conscience. It is not society's business. From society's vantage point the satisfaction of any desire that harms no one can only be regarded positively.
In terms of the social contract, the quality of individual life must be judged on the basis of the number of opportunities provided by the social milieu for the satisfaction of desires. The greater the number of opportunities, the higher the quality of life. If we as a society prevent individuals from satisfying their desires when it harms no one, we are interfering with the fundamental purpose of society itself. Instead of helping people to maximize their satisfaction, which is our social obligation toward fellow members of our society, we are forcing them into lives of frustration for no reason that can be justified under the social contract. We term this sort of interference a violation of human 'rights.'
WHO HAS RIGHTS?
Yes, but what about the 'rights' of the unborn child? Wouldn't he or she have more possibilities for enjoyment with a higher I.Q.? Isn't the infliction of HIV or genetic defects a gross infringement of the child's human rights? The answer: the unborn child has no human rights. He isn't recognized as a member of society under the social contract and therefore his 'rights' cannot be protected.
Indeed, it is for this same reason that the unborn fetus can be legally terminated under secular law [in contrast, Jewish law considers abortion a form of murder]. The mother is recognized as a full-fledged member of the social contract and has recognizable human 'rights', but the unborn fetus is not. She cannot be compelled to carry the fetus to term, as this would be a violation of her 'rights'. She is harming no one whose 'right' to life is recognized under the terms of the social contract in the satisfaction of her desire to terminate her pregnancy.
THE JEWISH SOCIAL CONTRACT
In light of all this, the Torah's attitude regarding the infliction of spiritual defects becomes very simple to explain.
The Torah also defines human rights in terms of the social contract. It is merely that the same arguments produce different 'rights' due to the fact that the Jewish social contract is different than the secular one.
It is easy to appreciate the difference by taking the distinction between Jews and Italians that was drawn in our essay in Parshat Mikeitz one further step. When an Italian immigrates to England he leaves the Italian social contract and joins the English one. He is no longer obligated to abide by the rules laid down by Italian society, and on the contrary it now becomes his social duty to carry out the obligations mandated by the British social contract. Both the Italian and English social contracts are secular. Their common aim is to increase the welfare of individual members as far as possible. The difference between them is the geographic location of the social group involved.
Jews are different. A Jew is a Jew wherever he lives. He has obligations under the secular social contract of the country of his residence the same as everyone else, and on top of these he has social obligations as a member of the Jewish people. God purposely established His covenant with us Jews in the wilderness of Sinai, which was clearly only a temporary residence, after we had become a nation in a geographic location that is not our own -- Egypt. The Jewish social contract is emphatically divorced from geography because the purpose of the Jewish social contract is not the optimization of the material well being of its members. The contract was formulated with God, and its purpose is the establishment of God's dominion on earth.
A SPIRITUAL CONTRACT
Jews agreed to become a kingdom of priests and a holy nation. (Exodus 19:6) The purpose of the Jewish social contract is spiritual rather than physical. The physical accouterments attached to Judaism such as national independence and residence in our own land of Israel are only regarded as the means to an end. The successful establishment of a Jewish country dedicated to the pursuit of a Torah life is the mechanism provided by God that allows us to carry out our historic mission of establishing His kingdom on earth.
Inasmuch as Jewish exposure to persecution and exile implies a lack of ability on God's part to provide adequately for the people with whom He signed His Covenant, Jewish persecution and exile demonstrate the lack of God's dominion. It is only through this idea that Jewish physical well being can be correlated with the purpose of the Jewish social contract.
JEWISH HUMAN RIGHTS
If we translate this concept into the same sort of theory of rights that we developed under the principles of the secular social contract, anything that would tend to interfere with a fellow Jew's ability to successfully establish the Dominion of God would constitute an interference with Jewish human rights. What is more, the definition of who constitutes a fellow Jew under the Jewish social contract would necessarily have to embrace Jews that are not yet born in the same way as it includes those who are presently alive. Indeed, under the Jewish social contract even dead Jews have 'rights.'
THE RIGHTS OF THE UNBORN JEW
To see why this must be so, let us consider the question of whether human history has a purpose within the context of the social contract. If we think through this issue properly, we will discover that there is an obvious divergence between the Jewish and secular social contracts in the approach that they respectively adopt toward this question.
Secular human history has no overall direction or purpose in terms of the secular social contract. As we have shown, the object of the secular social contract is to increase the individual welfare of those members of society who are presently alive. Past and future generations are only a marginal factor in social considerations. There isn't even a broad consensus in secular society regarding the present overexploitation of the planet's resources to the cost of future unborn generations. The reason for this is obvious; the unborn are not perceived as members and therefore have no 'rights' that must be protected under the contract. The duty to preserve the environment can only be interpreted as a moral obligation rather than a civic duty and therefore becomes a matter of conscience more than a proper subject for legislation.
But the purpose of the Jewish social contract is the establishment of God's dominion. This is a social aim that has a historical thrust. No single generation of Jews can possibly accomplish such an enormous task. It requires the cumulative efforts of many generations piled on top of each other to bring this about. While each generation of Jews is duty bound to make some progress towards the accomplishment of this overall aim in order to have respectable standing in the march of Jewish history, its accomplishment cannot be demanded of any single generation.
EVEN DEAD JEWS HAVE RIGHTS
Those Jews that have not yet been born are just as much a part of this process as those Jews who are presently alive now. What is more, an abandonment of this task by any particular generation threatens to erode the hard won accomplishments of generations past and as such violates the 'rights' of dead Jews who thus become deprived of their achievements under the Jewish social contract.
If we pull all this information together, we should be able to see the logic of the mamzer law from the Torah perspective.
THE TORAH GROUNDS FOR PROHIBITING CERTAIN RELATIONSHIPS
The prohibition of the forbidden relationships that result in the creation of the mamzer are established in the Torah on the grounds of holiness rather than on the basis of morality. The prohibited relationships are defined in Parshat Kedoshim and the introductory statement to all the injunctions contained in the Parsha is the following verse; Speak to the entire assembly of the Children of Israel and say to them: You shall be holy, for holy am I, YHVH your God. (Vayikra 19:1) The Talmud states; God only rests His Divine Presence on the families in Israel who possess purity of lineage. (Kiddushin 70b)
The goal of the establishment of God's Dominion on earth can just as well be described as the bringing down of the Divine Presence to the level where it can become a part of the earthly scene. For example, the idea of becoming a kingdom of priests and a holy nation clearly involves the establishment of a holy temple that has the capacity of allowing the light of God's Presence to become visible to human senses.
A mamzer is created in the context of a relationship that is by definition inconsistent with holiness. The moral turpitude of the parties involved has no relation to the holiness of the act that produced the mamzer. As stated earlier the mamzer is spiritually wounded; the word in Hebrew stands for mum zar, or 'strange defect'. (Yerushalmi, Kiddushin,3,14) The Presence of God cannot rest on a person whose very being is synonymous with the absence of holiness.
If there is a fundamental 'right' under the Jewish social contract it must be the right to contribute to the historic mission of establishing the dominion of God on earth. There can be no greater violation of a human right in the eyes of a Jew than the removal of the opportunity to be an earthly repository of the Divine Presence.
THE NEED FOR PROTECTION
We all recognize the obligation to protect social contract members from fundamental violations of their human rights by other members. Such protection is due without reference to the concept of 'fault'. Even the deprived and underprivileged are subject to the full rigor of the law if they attempt to deprive the more advantaged of their property or social rights. There is no justification under the social contract for the deprivation of someone else's fundamental rights under any circumstances.
The Jewish social contract recognizes the unborn as a fully privileged member of society. Why wouldn't the Torah protect the 'rights' of the unborn child? What right does the parent have to inflict such a fundamental defect as mamzerut on an unborn Jewish child? Why shouldn't the Torah forbid the mamzer to marry in a way that would spread his infliction?