Sunday, August 11, 2013

A Monstrous Mitzvah Defanged / Parshat Ki Teitzei

Phyllis Trible coined the term “texts of terror” nearly 30 years ago to describe four biblical narratives that feature women suffering rape, expulsion, murder, and dismemberment at the hands of patriarchal men. In all cases, the anonymous narrator is coolly unconcerned with the suffering and fate of the women, and later misogynistic readings have certainly not redeemed them.

These are not the only troubling texts in Torah, of course. There are, too, what I would call Monstrous Mitzvot, commandments conceived by an ancient society whose moral sensibilities on some subjects are far from ours today.

Exhibit A: In parshat Ki Teitzei we learn the fate of a mamzer. The usual English translation is “bastard,” and while mamzer is used pejoratively in common parlance, its technical meaning is a child born of an incestuous or adulterous relationship.

A mamzer shall not be admitted into the congregation of the Lord; none of his dependents, even in the tenth generation, shall be admitted into the congregation of the Lord. (Deuteronomy 23:3)

The stigma of being branded a mamzer was severe indeed. A mamzer was forbidden from marrying any but another mamzer, and his/her progeny carried the taint as well — in perpetuity. This is a classic case of punishing a child for the sins of the parents, even though in the very same parashah we read:

Parents shall not be put to death for children, nor children be put to death for parents: a person shall be put to death only for his own crime. (Deuteronomy 24:16)

Is this verse meant to be read narrowly: to specify only cases that are din nefesh (capital offenses liable to the death penalty), or rather should it be understood to say that in general children should not be punished for the sins of their parents, and vice versa?

Regardless, every fiber of my being tells me that branding a human being a mamzer and denying him and his progeny full access to marriage in the community is a horrendous evil, a violation of that person’s dignity and very humanity — values that surely ought to trump Torah’s aversion to incest and adultery.

The prophet Nathan confronts King David and Bathsheba who have produced a mamzer through their adulterous relationship. Bronze bas-relief on the door of La Madeleine in Paris.

The Rabbis struggle with the law of mamzeirut. Talmud defines the law as pertaining to incest and adultery (Kiddushin 3:12, 69a; and Yebamot 4:13, 45b). The Sages themselves recognized the gross injustice of the law. In Vayikra Rabbah 32:8, we find this breathtaking midrash:

I further observed all the oppression that goes on under the sun: the tears of the oppressed, with none to comfort them; and the power of their oppressors — with none to comfort them (Ecclesiastes 4:1). Chanina the tailor interpreted this verse as pertaining to mamzerim. “The tears of the oppressed” means: their mothers transgressed and these poor ones are excluded; this one’s father committed incest, but what has [the offspring] done and why should [the offspring] be affected? “None to comfort him” refers to Israel’s Great Sanhedrin, who come at them with Torah’s power (authority) and exclude them, applying [to them] “No mamzer shall be admitted into the congregation of the Lord” (Deuteronomy 23:3). [Concerning] “None to comfort them,” the Holy One says: It is for me to comfort them. Yes, in this world some are spurned, but as for the future, Zechariah has said, I see people all of gold (Zechariah 4:2).

I don’t know who Chanina the tailor is. Perhaps that is the point: he represents any thinking, feeling human being, and here speaks for the Rabbis when he gives unequivocal moral voice to the implicit cruelty of the law of the mamzer. He makes no effort to justify it, or work around it. He attacks it head-on as nothing less than “oppressive.” His utter contempt is not limited to this Torah law; it encompasses any Jewish court that enforces it, inflicting suffering so deep that only God can provide comfort. The attempt to provide solace at the end — in olam haba (the world-to-come) where the mamzer’s suffering will be recompensed, or at least the taint will be erased — rings hollow. Who would make that choice?

In a strange and initially troubling discussion of how many generations retain the taint, and why, we find this:

R. Zeira said: It was explained to me by Rav Yehudah that publicly known mamzerim live; unknown mamzerim do not live, and those who are partly known and partly unknown live for three generations but no longer. A certain man once lived in the neighborhood of R. Ammi, who made a public announcement that he was a mamzer. As the [exposed man] was bewailing his outing, [R. Ammi] said to him: I have given you life!

The presumption seems to be that God will bring about the death of mamzerim, so there is no need to worry about their marriages; since they won’t live long enough to contract a marriage, the community is safe from the taint. R. Ammi goes so far as to say that in outing the mamzer in his community, he has prevented the necessity of God intervening and expunging the life of the closet mamzer. All the warmth and compassion of an ice floe.

But perhaps that’s not the only way to read the passage.  R. Zeira tells us that we can trust God to take care of the problem of mamzerim; we don’t need to go on a witch-hunt. R. Ammi, whose words sound incomparably cruel, in a strange way reinforces the notion that God takes care of mamzerim and we needn’t go looking for them. The message is: leave well enough alone. This is not your problem. Leave it to God. And that is a fine message.

Nonetheless the problem arises in any community, that there is always one sniveling tattletale. What if that person outs someone who is a technical mamzer? The Rabbis are keenly aware of this possibility. They tell us:

[Even if] it is rumored that [a woman] has been unfaithful to her husband, and everyone's tongue is wagging about her – her children are not suspected of being mamzerim. [This is so because we presume that] most of [the married woman's] acts of intercourse are with her husband. (Sotah 27a)

We can take encouragement from this Talmudic statement, and additionally from Rabbi Moses Isserles (1520-1579, known as the Ramah). In the Ramah’s gloss to the Shulkhan Arukh (Even ha-Ezer 2.15) he writes:  
[In the case of] one who is unfit has become mixed in a particular family, once it has become mixed it has become mixed and whoever knows of the disqualification is not permitted to disclose it and must leave well alone since all families in which there has been an admixture will become pure in the future.
And there it stands. The monstrous mitzvah of punishing a child (and his progeny for generations to come!) for the sin of a parent is effectively dismantled and set aside. Human dignity and compassion in the face of human suffering trumps an ancient taboo foisted on innocent children. We can breath a collective sigh of halakhic relief.

© Rabbi Amy Scheinerman


  1. I'm sorry but I think your quote of the Ramah is incorrect. In full, the ramah says: הגה: לב] וכל זה דוקא למי שיודע בדבר. אבל משפחה שנתערב בה פסול, ואינו ידוע לרבים, יח כיון שנטמעה יט נטמאה /נטמעה/ (ט) והיודע פסולה אינו רשאי לגלותה, אלא יניחנה בחזקת כשרות, לג] שכל המשפחות שנטמעו בישראל כשרים לעתיד לבא. לד] ומ"מ כשר הדבר לגלות לצנועין (כך משמע מהר"ן פרק עשרה יוחסין). לה] ודוקא משפחה שנטמעה ונתערבה, אבל כל זמן שלא נתערבה מגלין הפסולים ומכריזין עליהם, כדי שיפרישו מהם הכשרים. in english, the last line clearly states that if an individual is known to be a mamzer, then even today, the halacha of mamzer applies to him. The ramah's leniency only applies to disqualifying an entire family because an unknown mamzer married into the family. Thus it should not be read as the ramah deciding that his feel of morality trumps what the torah says, but rather, as part of a technical discussion.

    I agree that the concept of mamzer is difficult to understand, and indeed seems to violate certain principles of morality. AS you noted, our Rabbis were aware of this, and indeed struggled with all the commandments that contain an element that does not seem moral. The difference between them and you then, is not that they were primitive morally, while you have developed moral sensibilities, but rather, that they submitted to the will of G-d even if it clashed with their moral instincts. That doesn't make the moral issues go away - since the Torah tells us that G-d is good and moral, we need to understand how G-d could command what seems to be so immoral - and its not an issue to be brushed aside. At the same time, if you don't believe that the torah is divine, then just give it up - why study an ancient text of a people whose morality was clearly far inferior to yours - because of some wisdom that you read into it? Homiletics are cute - practice of the torah is for real.

    1. E.S., how does it work in practice? Does it only apply to men? I ask that because the next verse says that not Moabite shall not enter into the congregation of the Lord even to their tenth generation. Thus Deut 2:2 and Deut 2:3 are analogues. And Ruth got in. Why was Ruth an exception? The answer I've heard before is because she was a woman. That would imply, then, to me that 2:2 also only concerns males. It would make sense if the concern here is the legitimacy of the tribal affiliations.

      "Regardless, every fiber of my being tells me that branding a human being a mamzer and denying him and his progeny full access to marriage in the community is a horrendous evil, a violation of that person’s dignity and very humanity — values that surely ought to trump Torah’s aversion to incest and adultery."

      One thing I know for sure is when the stigma attached to having a kid out of wedlock vanished, everyone started doing it, and worse, much much worse. When the stigma was there, people showed more sexual restraint. So I think the stigma served some purpose. The point of the law, here, I think was preventative. To have people think about what they were going to put their children through and keep their pants on. It seems like a balance of the general good vs a few odd individuals. Either we put a stigma on sexual immorality, in which case a few individuals will be ostracized and unable to marry, or we put none on sexual immorality and end up with outright sexual chaos and filth, and ultimately it ends up that hardly anyone is able to marry because society heads off in a direction where women no longer want to marry but just whore around with every man (or woman) that will do it with them and most men also act in similar manner. That's where we're headed as a society right now. From the vantage point of the future I see, the "oppression" of the poor mamzerim seems like nothing.