The Personal Status of a Convert: Discrimination or Social Status?[1]

With God's help

Asif 2013

Introduction

The personal status of a convert in Jewish law gives rise to discomfort. As a rule, he is like a newborn infant, and from a halakhic standpoint all his ties to his past have been severed. Moreover, the Sages praise him greatly for the step he chose to take, and the Torah itself warns us repeatedly against wronging him and against harming him. One may not remind him of his past, and he must be treated as a Jew in every respect. Halakhically as well, ostensibly his status is that of a complete Jew in every matter.

And yet, in a number of halakhic contexts, mainly those in which an 'assembly' is required, or where the Torah commands 'the children of Israel,' or where a 'native-born citizen' is required, the convert is not included unless Scripture provides a special inclusion. For example, as a matter of Jewish law, a female convert is disqualified from marrying into the priesthood and is permitted to a mamzer (someone barred from marrying into the regular Jewish community), and likewise a male convert may marry a female mamzer. A convert is disqualified from being appointed to any position of authority whatsoever, and the Talmud says that one may not appoint him even as the official in charge of local water distribution. How is this treatment of the convert consistent with the Torah's general directives regarding him? Why, really, can one not appoint a convert over water distribution? What is the disqualifying factor that characterizes him? Let us emphasize that in some cases this disqualification applies even to his descendants and descendants' descendants, that is, even to those who were born and raised as Jews. It is hard to accept that Jewish law treats the convert this way merely because of origin.[2]

A reading of the sources seems, at first glance, to indicate that this is a lineage disqualification. But we are familiar with lineage disqualifications in judging, in kingship, and in marriage into the priesthood; we have not found that people with lineage disqualifications are barred from being appointed to just any office over Israel. More generally, what does it mean to be disqualified from appointment as a charity collector or as the official in charge of water? Are these positions for which there are halakhic requirements? Does Jewish law recognize an intrinsic disqualification from serving as a charity collector or as a water official? Ostensibly these are appointments whose requirements should be purely substantive, that is, requirements of suitability.

In this article I would like to propose an alternative understanding of the convert's disqualification, one that resolves this contradiction and somewhat softens the discomfort noted above. I should emphasize that the discomfort is only the motivation for the inquiry that follows; the arguments themselves must arise from the sources of Jewish law and be examined on their own merits. The proposal is based on various difficulties, chiefly in Maimonides' position, and the picture presented here is a proposed solution to those difficulties. The resolution offered here to the moral discomfort is only a side benefit, not the focus of the halakhic argument.[3]

Between the Convert and the 'Citizen'

In the passage dealing with the Paschal offering, we find (Exodus 12:48-49):

And if a convert sojourns with you and wishes to offer the Passover sacrifice to the Lord, every male of his must be circumcised; then he may draw near to offer it, and he shall be like a native of the land; but no uncircumcised person may eat of it. One law shall there be for the native and for the convert who sojourns among you.

There is here an equation between the convert and the native-born of the land, at least with respect to the Paschal offering. And indeed, in the Mekhilta de-Rabbi Yishmael, Masekhta de-Pischa, chapter 15, we find:

'One law shall there be for the native.' Why is this said? Has it not already said, 'and he shall be like a native of the land'? What then does 'one law shall there be for the native' teach? Since it says, 'And if a convert sojourns with you and offers a Passover sacrifice,' I have derived only the Passover sacrifice, in which the convert was equated with the native. From where do we know this regarding all the other commandments of the Torah? Scripture therefore says, 'One law shall there be for the native and for the convert.' Scripture thus comes and equates the convert with the native regarding all the commandments of the Torah.

The first verse equates the convert with the native-born regarding the Paschal offering, and the second equates them with respect to all the laws of the Torah. These derivations recur as well regarding the Second Passover (in Sifrei on Numbers 9:14), libations (Sifrei on Numbers 15:15), and also with respect to the acceptability conferred by the frontlet (immediately afterward in Sifrei there).

Maimonides rules this as law in Hilkhot Issurei Bi'ah 12:17:

All gentiles, when they convert and accept upon themselves all the commandments of the Torah, and slaves when they are emancipated, are like Israelites in every respect, as it is said, 'As for the assembly, there shall be one statute for you'; and they are permitted to enter the assembly of the Lord immediately—provided that the male convert or freed slave marries a Jewish-born woman, and an Israelite marries a female convert or a freedwoman…

From all these sources it is clear that Scripture equates the convert with the native-born regarding all the commandments of the Torah. Yet this comes with its own caveat: the assumption in all these sources is that a convert is not really a native-born citizen, but that Scripture nevertheless equates him with one. In other words, there is here a hidden assumption that when Scripture says 'native-born citizen' it does not actually include the convert, except that in practice the law equates the convert with the native-born.

And indeed we find that wherever the Torah uses the term 'the children of Israel,' a special inclusion is required for converts (see Sdei Chemed, entry Bet, letters dalet and tsadi-dalet, and Encyclopedia Talmudit, at the beginning of the entry 'ger'). But in practice, in all such places converts were included as well, and therefore the difference between him and the native-born appears to be merely theoretical.

There are, admittedly, views that point to differences in the formulations recited by a convert, such as the Tannaitic dispute regarding the recitation for first-fruits and in prayer (Bikkurim 1:4; see also the Jerusalem Talmud there), and likewise regarding Grace after Meals and the invitation to bless. But all of this is only because the wording 'which You gave to our fathers' does not fit them factually, not because of any essential difference. In practice we rule that there is no difference even in these matters.

Substantive Differences Between the Convert and the Native-Born: Marriage Eligibility and Appointment

Up to this point we have seen a difference between the convert and the native-born that, at least in practice, is purely theoretical. But we do find differences between the convert and the native-born that remain even in the final halakhic conclusion. Beyond incidental differences (for example, that a convert is not sold as a Hebrew slave, and when a convert acquires a Hebrew slave he does not pass him on to his sons, and the like, which seem technical), we find two main substantive differences: personal status with respect to marriage eligibility (prohibition to the priesthood and permission with a mamzer) and disqualification from appointment.

In the baraita in Kiddushin 72b we find the marriage rules of the convert:

The Rabbis taught: A convert may marry a female mamzer—these are the words of Rabbi Yosei. Rabbi Yehudah says: A convert may not marry a female mamzer. A convert, a freed slave, and a ḥalal are all permitted to a woman of priestly lineage.

The assumption is that according to all views a female convert is forbidden to a priest, whereas a male convert is permitted to a woman of priestly lineage, as the Talmud explains there that women of priestly lineage were not prohibited to men with lineage defects. Thus Maimonides rules in Hilkhot Issurei Bi'ah 19:6 (see also there 19:9 and 19:11, where he wrote that the female convert has the status of a zonah):

Likewise, if a priest has relations with a female convert or a freedwoman, she becomes a ḥalalah and his offspring from her are ḥalalim.

The Tannaitic dispute in the baraita is whether a convert is permitted to a female mamzer. What is the basis of the dispute? The Talmud there explains:

What is Rabbi Yosei's reason? Five 'assemblies' are written: one for priests, one for Levites, one for Israelites, one to permit a mamzer to a shetuki, and one to permit a shetuki to an Israelite; but the assembly of converts is not called an assembly. And Rabbi Yehudah? Priests and Levites are derived from one assembly, leaving one extra for the assembly of converts. And if you wish, say instead: these too are two assemblies; a mamzer with a shetuki and a shetuki with an Israelite are derived from one assembly: 'A mamzer shall not enter the assembly of the Lord'—a definite mamzer may not enter, but a doubtful mamzer may enter; into a definite assembly he may not enter, but into a doubtful assembly he may enter.

Up to this point we see that a convert is not part of the assembly, or at least not part of the ordinary assembly. For Rabbi Yehudah there is an assembly of converts, which is a different assembly, though included within the assembly of Israel.

Finally, another version is brought:

And if you wish, say instead: these too are two assemblies, and Rabbi Yehudah's reason is from here: 'The assembly—one statute shall there be for you and for the convert who sojourns.' And Rabbi Yosei? 'One statute' interrupts the subject.

Here the assumption is that even according to Rabbi Yehudah, the assembly of converts is not the ordinary assembly, and there is a separate inclusion.

This is one consequence of the theoretical distinction between the convert and the ordinary Jew, a consequence that remains in practice as well. And thus Maimonides rules in Hilkhot Issurei Bi'ah 15:7:

A mamzer may marry a female convert, and likewise a female mamzer is permitted to a convert; the children from either union are mamzerim, for the child follows the defective one, as it is said 'into the assembly of the Lord,' and the assembly of converts is not called the assembly of the Lord.

He rules like Rabbi Yosei, who distinguishes between the assembly and the convert. In the next law there he extends this even to descendants:

If a female convert married a convert and they had a son, even though his conception and birth were in holiness, he is permitted to a female mamzer; and likewise his great-grandson, until the name of his conversion becomes absorbed and it is no longer known that he is a convert, and only then does he become forbidden to a female mamzer. And the same law applies to converts and emancipated slaves alike.

His words here are based on a Tannaitic dispute over how long the lineage status of converts continues, for we find in a baraita in Kiddushin 75a:

As it was taught: A convert, up to ten generations, is permitted to a female mamzer; from then on, he is forbidden to a female mamzer. And some say: until the taint of idolatry is no longer remembered of him.

And the decisors likewise disagree in practice. We saw that Maimonides adopted the latter Tanna, and so too does the Shulchan Arukh, whereas the Rosh there and the Tur in section 4 ruled like the first Tanna. In any event, everyone agrees that the matter depends on the disappearance of the label of gentility from him; the dispute is only whether after ten generations that always happens.

The fact that converts are not part of the assembly has several additional consequences. They may marry those disqualified as petzu'a daka and kerut shofkhah, and they may also marry Ammonites, Moabites, Egyptians, Edomites, Nethinim, and so on.

So far we have dealt with marital disqualification. The second substantive difference between the convert and the ordinary Jew concerns appointment. Thus Maimonides writes in Hilkhot Kings 1:4:

We do not appoint a king from the assembly of converts, even after many generations, unless his mother is from Israel, as it is said: 'You may not set over yourself a foreign man who is not your brother.' And not only kingship, but any position of authority in Israel: not commander of the army, nor officer over fifty or over ten, even the official over the water channel who distributes water from it to the fields. Needless to say, a judge or a nasi must be only from Israel, as it is said: 'From among your brethren shall you set a king over yourself'—all appointments you make may be only from among your brethren.

Maimonides rules that it is forbidden to appoint a convert to any office whatsoever, even as the official in charge of an aqueduct that distributes water to fields. Maimonides' source is the discussion in Yevamot, to be considered below. Before that, I will briefly present the basic difficulty inherent in the prohibition on appointment.

Can There Be an Intrinsic Disqualification in Appointment? The Case of the Charity Collector

We find intrinsic disqualifications for testimony and for judging, and it is plausible that there are intrinsic disqualifications for kingship and other positions of authority for which Jewish law imposes formal requirements. But here the scope of the prohibition is much broader. Where do we find an intrinsic disqualification for appointments such as responsibility for the aqueduct? After all, this can be managed even by a computer, or by the act of a monkey; so why should the convert be lacking merely because he cannot manage this?

An apparently exceptional example in this regard is the office of charity collector. We find requirements concerning charity collectors that resemble those governing judges. Charity is collected by two, because there is no authority over the community with fewer than two (see Mishnah Pe'ah 8:7; baraita Bava Batra 8b; Maimonides, Hilkhot Matanot Aniyyim 9:5; and Tur and Shulchan Arukh, Yoreh De'ah 256:3), and it is distributed by three, because it is like monetary adjudication (see Pe'ah and Bava Batra there). But we do not find a requirement that the collectors meet the standards of judges; certainly there is no need for semikhah. At most, they must satisfy substantive requirements, not formal ones: they must be fit for the role. Indeed, the commentators already wrote that even the requirement of two or three does not literally mean it is like monetary cases, and therefore anyone fit for the role may be appointed (see Encyclopedia Talmudit, entry 'charity collector').

And yet, precisely regarding a convert, the possibility of disqualifying him does arise in the decisors. In the Mishnah in Kiddushin 76a we apparently find the opposite rule:

And anyone whose ancestors were established as officers of the public or charity collectors—we may marry into the priesthood from them, and there is no need to investigate further.

What is the reason for this? The Talmud there on b explains:

And charity collectors—we marry into their families. What is the reason? Since they quarrel with people—for the Master said: they may distrain for charity even on the eve of the Sabbath—if there were any defect, it would have become known.

That is, if there were a lineage defect, it would surface in the course of quarrels. The assumption is that there is no principled obstacle to appointing someone with a lineage defect as a charity collector, only to marriage into the priesthood. The charity office is merely a technical indicator: if, in the course of quarrels, no disqualification comes up, then presumably it does not exist.

As noted, some later authorities (see Gilyon Maharsha on Shulchan Arukh, Yoreh De'ah 249:7, in the name of Ohel Yaakov, section 7) wrote that one should not appoint a convert as a charity collector. On the other hand, we saw that the plain sense of the Talmud indicates that there truly is no such prohibition regarding charity collectors. Still, the matter requires explanation: what distinguishes this from other appointments to which converts may not be appointed?

Further on in the passage in Kiddushin 76b we find:

The host of Rav Adda bar Ahavah was a convert, and he and Rav Bibi were quarreling. One said: I shall perform the municipal office, and the other said: I shall perform the municipal office. They came before Rav Yosef. He said to them: We learned, 'You shall surely set a king over yourself'… 'from among your brethren'—all appointments you make may be only from among your brethren. Rav Adda bar Ahavah said to him: Even if his mother is from Israel? He replied: If his mother is from Israel, we read concerning him 'from among your brethren.' Therefore, Rav Bibi, who is a great man, should attend to religious matters, and this master should attend to civic matters. Abaye said: Therefore, one who lodges a rabbinic scholar in his home should lodge someone like Rav Adda bar Ahavah, who knows how to turn the matter in his favor.

The situation here seems unclear. On the one hand, there is a determination that one may not appoint a convert to any office whatsoever. On the other hand, if his mother is Jewish, then it is fine. Why should the fact that his mother is Jewish change anything? Ostensibly, in such a case his personal status is the same as that of an ordinary convert, for in Kiddushin 66b we found that when there is a transgression one follows the defect, and when there is no transgression one follows the male parent. If so, clearly even one whose mother is Jewish is still a convert and not an ordinary Jew. With respect to permission into the priesthood as well, it would not seem that this should change if his mother is Jewish, though see below. So why, when his mother is Jewish, may he indeed be appointed to office? It seems that the prohibition on appointment is different in essence from the prohibition on marriage, and here there is room to permit if his mother is Jewish. We shall explain this below.

Immediately afterward, Rav Yosef in the Talmud we cited distinguishes between Rav Bibi and the convert, assigning Rav Bibi to religious matters and the convert to civic matters. Rashi explains there:

Religious matters—charity collection, its assessment and distribution, and the arrangement of translators and those who read the haftarah.

Civic matters—other public needs in mundane matters: roadworks, digging trenches, providing bread, and opening the gates.

We see that for the office of charity collector they did not appoint the convert but Rav Bibi, and at first glance this would seem to support the aforementioned Maharsha. But that does not seem right, for in the conclusion we are dealing here with a convert whose mother is Jewish, and he is fit for all appointments. Therefore the division between him and Rav Bibi was based on substantive suitability and not on a halakhic impediment to appointing the convert. Indeed, in the language of the Talmud itself Rav Bibi is described as 'a great man.' Below we will clarify the basis of this distinction.

Later in the passage we find varying practices regarding the appointment of converts:

Rabbi Zeira would appoint them. Rabbah bar Avuha would appoint them. In the Land of Israel they would not appoint any of them even over measures; in Nehardea they would not appoint any of them even over the water channels.

Rabbi Zeira and Rabbah bar Avuha would appoint converts to positions of authority, as Rashi explains. In the Land of Israel they would not appoint them over measures, and in Nehardea they would not appoint them even as supervisors of the water channel. This is the source for Maimonides' statement cited above.

This conclusion seems somewhat puzzling, for if we are dealing with a law, then every appointment should be forbidden. What room, then, is there for varying customs? At first glance it seems that we are not dealing here with a prohibition, but with a recommendation, and therefore each place adopted it to a different extent. What is the meaning of this matter?

A Possible Explanation: A Social Foundation for the Prohibition on Appointment

In light of all the difficulties we have described thus far, there is room for the argument that indeed this is not an actual prohibition, that is, an intrinsic disqualification, but rather a prohibition that results from a given social reality, perhaps even a mere recommendation.

One may suggest the following explanation. A convert is a completely valid Jew, like a newborn child, and we are supposed to relate to him accordingly. In practice, despite the directives of Jewish law, society tends to regard him as belonging to a lower group, and therefore his social standing is lower. We saw in the Talmud cited above a very clear indication of this: when a quarrel arises with the charity collector, his lineage immediately comes up, just as David's lineage from Ruth the Moabite convert was also raised. This is why in many cases a convert would marry a female convert, while marriage to a Jewish woman by birth was rare.[4] The Torah's repeated warnings against wronging the convert stem precisely from the same reason. The public tends to look down on him. There is therefore a tension between the way converts were actually treated and the way the Torah demands that we treat them. Actual treatment was apparently problematic, since the public treated converts as inferior and of low origin. By contrast, the Torah forbids this and demands that we treat them as equal to us.

If what we are saying is correct, one can say that Jewish law forbids appointing to positions of authority and to public roles a person whom people view as someone inferior to themselves, because this will impair his functioning as an appointee. People will challenge his decisions, speak disparagingly of him and of his lineage, as we saw above, and will not obey him. According to this proposal, we are not dealing with an essential disqualification; on the contrary, in principle there is no reason to disqualify him. But because appointing such a person may cause functional problems, Jewish law recommends or directs that he not be appointed.

An example of such a disqualification is found in Maimonides, Hilkhot Kings 1:6:

Although the convert's disqualification appears there in Maimonides earlier, in the category of actual disqualifications, there is still room to say that in the case of the convert the Torah itself disqualified him for this reason. By contrast, the others are substantively disqualified in light of the circumstances.

What happens when he is married to a Jewish woman? In light of what we have said, one can argue that this reflects recognition by the community that he is part of it. If so, the son will already receive treatment as a fully Jewish person, and therefore those same problems will not arise if and when he is appointed to some position of authority. Therefore, a convert whose mother is Jewish is fit for all appointments. According to our proposal, the convert's disqualification from appointment is not due to his lineage. It is not an essential disqualification, but rather a de facto recognition by Jewish law of an improper social reality, together with accommodation to it. In light of what we have said, it is very plausible that even if his father is Jewish the son would be fit, not only when his mother is Jewish. And indeed, the Kesef Mishneh there in Hilkhot Kings writes:

And it seems to me that he mentioned his mother only to make a greater point; all the more so if his father was from Israel, even though his mother was not from Israel, he is valid. And Tosafot wrote likewise in the chapter 'Mitzvat Ḥalitzah.' In this way it is clear to me how King Rehoboam reigned even though his mother was not from Israel, for he was the son of Naamah the Ammonitess.

That is, he rules that if one of the parents is Jewish, it is permitted to appoint him to all positions of authority. Here too this reflects the social conception: once the convert has become fully integrated into society, one may appoint him. This is not a question of lineage but of social perception.

We can now understand why, once the label of conversion has faded, he is no longer considered a convert. Above we saw the dispute regarding a convert whose name has faded with respect to permission to a female mamzer. According to one view, after ten generations, when the name of his conversion has faded, he is fit. According to the other view, this happens after ten generations, and then he is fit. There is therefore no dispute that if his name has faded he is fit; the dispute is only over when the name fades. We do not keep registries concerning converts, because the disqualification of a convert is not an essential lineage problem that must be tracked. According to our proposal regarding appointment, the matter is self-evident: if we do not know that he is a convert, there will be no problem appointing him, because the public will obey his directives and will not challenge them. Therefore one must wait until his name fades and nobody knows that he is a convert, and then one may appoint him. Below we will propose an explanation for why this is said as well regarding his permission to a female mamzer, which ostensibly depends on the term 'assembly.'[5]

This picture also clarifies for us the difficulty of how there can be intrinsic disqualifications for appointments for which Jewish law lays down no formal requirements at all. According to our proposal, we are dealing with a substantive incapacity and not with any formal requirement, like the disqualification of a tanner brought in Maimonides there. That is of course relevant even to prosaic appointments such as responsibility for water and the like.

We can now also understand the give-and-take in the passage cited above. At first they assumed there was a clear rule that one may not appoint a convert to any office, that is, that this was an intrinsic disqualification. Thereafter the argument is raised that if his mother is Jewish, it is acceptable. We asked why that should be so, if from the perspective of formal personal status he is a convert in every respect. We are therefore compelled to say that the prohibition on appointing him is not because he is intrinsically disqualified on account of his lineage, but because he lacks public standing. Therefore, if his mother, or his father, is Jewish, then he has already been absorbed into the Jewish public, even though from the standpoint of his halakhic personal status he still formally remains a convert, and therefore there will be no problem of authority with respect to him, and he may be appointed to positions of authority. This reflects a shift in the passage regarding the nature and conceptual definition of the disqualification from appointment.

The distribution of roles between Rav Bibi and the convert can now also be explained in the same way. We saw that we are speaking there of a convert whose mother is Jewish, so why was he not given the appointment in matters of Torah but only in mundane matters? According to what we have said, everything depends on how the public relates to each of them. Therefore, despite the fact that his mother was Jewish and he was in principle fit for office, they nevertheless divided the roles according to the public suitability of each of the two men, and preferred Rav Bibi over him. That is what the Talmud means there when it says that Rav Bibi was a great man, that is, substantively better suited to the appointment.

A straightforward implication of what we have said is that if there is a place where a convert is treated as he ought to be treated, then there is no impediment to appointing him to any office whatsoever. As for the case of a king, see below. This explains why Rabbi Zeira and Rabbah bar Avuha would appoint converts to all appointments. Apparently in their locales society was properly ordered and its attitude to converts was entirely egalitarian. In such a society there is no obstacle whatsoever to appointing them to any position of authority. In the Land of Israel and in Nehardea, the convert's standing was lower, and therefore they did not appoint them to every position of authority; each place followed the prevailing situation there. This resolves the difficulty we raised above as to how a Torah prohibition could depend on local custom.

The Convert's Disqualification from Judging

It may also be possible to understand the convert's disqualification from judging against a similar background. In Tosafot, s.v. since his mother is from Israel, in the Yevamot passage, they write:

And if you ask: here it implies that a convert whose mother is not from Israel is unfit to judge, whereas in the chapter 'One Who Judges Monetary Cases' (Sanhedrin 36b, and there) we learned, 'All are qualified to judge,' and the Gemara asks, 'What does this include?' [and answers:] one statement includes a convert and one includes a mamzer. This implies that a convert is fit to judge even if his mother is not from Israel, indeed even if he converted on his own. For there the Gemara says that a mamzer comes from a fit seed, whereas a convert, who does not come from a fit seed, might have been thought unfit. One may answer that there the case is judging his fellow convert, as stated in the chapter 'Mitzvat Ḥalitzah' (below 102b, and there): by Torah law a convert may judge his fellow convert, and if his mother was from Israel he may judge even an Israelite.

That is, a convert is fit to be appointed only over his fellow converts, not over full Jews. And if his mother is Jewish, then he is fit to judge even Jews, as was established in our passage.

Tosafot's source is the passage in Sanhedrin 36b, where the disqualification from judging is discussed, and it states:

All are fit to judge monetary cases. What does 'all' include? Rav Yehudah said: it includes a mamzer. But we have already taught this once: 'Whoever is fit to judge capital cases is fit to judge monetary cases; and there are those fit to judge monetary cases who are not fit to judge capital cases.' And we discussed: what does that include? Rav Yehudah said: it includes a mamzer! One statement includes a convert, and one includes a mamzer. And both are necessary. For had he taught us only a convert, I would say that is because he is fit to enter the assembly; but a mamzer, I might say not. And had he taught us only a mamzer, I would say that is because he comes from a fit seed; but a convert, who does not come from a fit seed, I might say not. Therefore both are necessary.

We see that the convert is fit to judge even though he comes from a tainted seed, and the Tosafot cited above construe this to mean that he is fit to judge only a convert like himself. At first glance, this construal is puzzling, for is he not in essence disqualified? Why, if he judges converts, is he fit? Where have we found that a disqualified judge can nevertheless be fit to judge members of a certain group? We are therefore compelled to say that Tosafot understand the convert to be fit to judge at the principled level, and that there is no essential disqualification in him. There is, however, a concern that he not judge ordinary Jews, but only converts. This disqualification can indeed be precisely what we explained above: a social problem and not an essential disqualification. With converted litigants, of course, this problem does not exist, because they surely will not belittle him on account of his lineage. Therefore he can judge converts.

In the passage here too there was an initial assumption that the convert 'comes from a tainted seed' and is therefore disqualified from judging. That itself is what the Talmud answers: this in itself does not disqualify him. Only society's attitude toward one who comes from a tainted seed disqualifies him, and with respect to converts that problem does not exist, so he is not disqualified. It is entirely plausible that the convert's disqualification from judging is nothing more than one of his disqualifications from appointment, and not part of the ordinary disqualifications of judgeship; therefore its parameters are those of the disqualification from appointment and not those of the other disqualifications of judgeship.

It seems that the rule with respect to charity collectors will be similar. Indeed, this is a position of authority like any other, and therefore the regular rule applies here as well. Even in charity administration, one should appoint a convert only in a place where people will indeed obey him and he will have authority. We saw above that when people quarrel with the collector they mention his lineage, and from this it is clear that this is indeed a significant consideration; one should appoint to authority only someone who can bear it. From here it follows that in principle it is possible to appoint a convert to be a charity collector, as indeed emerges from the plain sense of the Talmud. But one must know that if quarrels arise and he lacks authority, it is not advisable to appoint him. And if, when people quarrel with him, the question of his lineage does not come up, then presumably he has no lineage problem and his family may marry into the priesthood.

What we have said here concerns only the prohibition on appointment to positions of authority and not the marriage prohibitions. The prohibition with respect to the priesthood, at first glance, is not connected to this general rule, because there we are dealing with a substantive difference, that is, a lineage disqualification, which is an intrinsic disqualification with respect to marriage. Below we will see that perhaps there is room for such an explanation even with regard to the marriage prohibitions.

The Dispute in the Yevamot Passage

In the chapter Ha-Ḥoleẓ in Yevamot, 45b, there is a parallel discussion regarding the appointment of a convert to positions of authority. The context there is the law of a gentile who had relations with a Jewish woman, and the Tannaim and Amoraim dispute whether the child is a mamzer or fit. As a practical matter he is fit, but among the medieval authorities there is nevertheless a dispute about the meaning of that fitness. We find three positions among the medieval authorities on this issue; for details, see the appendix:

• The plain and straightforward view is that the child is a fully valid Jew, since he is related only to his mother.
• However, there is a view among the medieval authorities that the child is a gentile, and his fitness is only after he converts.
• And there is yet another view according to which the child is Jewish, but nevertheless requires conversion.

Against the background of the law of a gentile who had relations with a Jewish woman, a discussion arises in Yevamot 45b regarding appointment to authority:

Rava declared Rav Mari bar Rachel fit and appointed him over the tax officials of Babylonia, even though the Master said: 'You shall surely set a king over yourself'—all appointments you make may be only from among your brethren! This one, since his mother is from Israel, we read concerning him 'from among your brethren.'

It is not entirely clear to whom this discussion refers. Who exactly was that Rav Mari bar Rachel? Was he the son of a gentile who had relations with a Jewish woman, or the son of a convert who married a Jewish woman?

Rashi there explains:

Rav Mari bar Rachel—he was from a gentile who had relations with a Jewish woman.

Among the tax officials of Babylonia—collectors appointed over Israel; and although an ordinary convert may not be appointed as leader over Israel, as the Master said, this one, since his mother is from Israel, we read concerning him 'from among your brethren.'

According to Rashi, we are speaking of the son of a gentile and a Jewish woman, and Rava appointed him to authority because his mother was Jewish. According to this interpretation, it is clear why this passage appears immediately after the preceding discussion, which also dealt with a gentile who had relations with a Jewish woman.[6]

What is Rava's innovation? It seems to vary according to each of the three interpretations mentioned above:

• According to the straightforward interpretation, the innovation is that if his mother is Jewish, then he differs from an ordinary convert, or from one whose two parents are converts, and may be appointed to all positions of authority, as we saw above in Kiddushin.
• According to the second view, the innovation is that such a son is indeed a gentile, but after his conversion he is superior to any ordinary convert whose two parents are gentiles, and even to one who was born Jewish to two convert parents. This person did indeed convert and is therefore himself a convert, and not merely the son of converts, but since his mother is Jewish he may be appointed to all positions of authority in the Torah.
• In the third view the innovation is even easier to understand, because here we are dealing with the conversion of someone who is already Jewish, and therefore it is clear why he may be appointed to all positions of authority.

Up to this point we have explained Rashi's approach, according to which the case here is a gentile who had relations with a Jewish woman, and we have seen that this interpretation is compelling in light of the preceding part of the passage. However, it seems that Tosafot, s.v. Rava, here disagree with Rashi:

We read 'Rava declared him fit,' not 'Rav,' for Rav Mari was the son of Isur the convert, who lived in the days of Rava, as is clear in the chapter 'Who Died' (Bava Batra 149a, and there).

Tosafot state that Rav Mari was the son of Isur Giyora, which implies that he was the son of a convert and not of a gentile, and this apparently differs from what Rashi wrote. However, in the Bava Batra passage cited by Tosafot it is explained that his conception was not in holiness and his birth was in holiness, that is, he was conceived by Isur Giyora while the latter was still a gentile. See further Tosafot s.v. 'Rav Mari' there, and the parallel in Sabbath 154a and Tosafot there, and in Bava Metzia 73b and Tosafot s.v. 'Rav Mari' there, where they discuss whether he was the son of converts or of gentiles, namely one whose conception was not in holiness. See there also the explanation, according to the view that his conception was in holiness, of why nevertheless in his name he is traced specifically to his mother, because they wanted to trace him to Samuel, and his mother Rachel was Samuel's daughter. Thus some regard Rav Mari as the son of Isur Giyora after his conversion, while others regard him as his son from before holiness.

It is not clear whether there is, between Rashi and Tosafot here, a difference that matters for our purposes. On the one hand, it is not clear what Tosafot would say about a gentile who had relations with a Jewish woman, that is, whether such a child is disqualified from positions of authority, because they understood that our passage deals with a convert who had relations with a Jewish woman. It should be remembered that according to Tosafot in Kiddushin, the son of a gentile and a Jewish woman is a complete gentile, as we shall see in the appendix. Perhaps that is why Tosafot here disagree with Rashi, for in their view it is not plausible to validate such a person for positions of authority. Even if he converts, he is like any ordinary convert, and the fact that his mother is Jewish has no significance. On the other hand, there emerges here a possibility, which we shall see below in the words of the Minhat Hinukh, that Rashi holds that only in the case of a gentile who had relations with a Jewish woman is the son fit, whereas if a convert had relations with a Jewish woman the child is disqualified from positions of authority like any ordinary convert. That is, he does not accept the distinction between a convert whose mother is Jewish and an ordinary convert.

We saw above that the validation of a convert whose mother is Jewish for positions of authority points to a social foundation of the prohibition on appointing converts to such positions. We also saw that perhaps in this passage there is an expression of this conception in the views of the medieval authorities. Let me note that most medieval authorities and decisors here understand the matter in accordance with Tosafot, namely that the case here concerns the son of converts, and if his mother is Jewish then he is fit for positions of authority. Thus the majority view fits the explanation we proposed above. Even if he is a Jew who converted, or the son of a gentile who had relations with a Jewish woman, still the fact that his mother is Jewish improves his social standing, and therefore he is fit for appointment.

Appointing a Convert as King

Up to this point we have dealt with the disqualification from appointment as judge and to other positions of authority, and we have seen that there is room for the argument that the foundation of the disqualification is not essential but social. We also saw that where society is not tainted by an improper attitude toward converts there is room for the argument that this rule does not apply. Now, the source of the prohibition on appointment is the law of a king, and therefore we must examine the matter in the context of the prohibition on appointing a convert to be king.

Maimonides, in Hilkhot Kings chapter 1, discusses the question of positions of authority in Israel. In 1:4 he writes:

We do not appoint a king from the assembly of converts, even after many generations, unless his mother is from Israel, as it is said: 'You may not set over yourself a foreign man who is not your brother.' And not only kingship, but any position of authority in Israel: not commander of the army, nor officer over fifty or over ten, even the official over the water channel who distributes water from it to the fields. Needless to say, a judge or a nasi must be only from Israel, as it is said: 'From among your brethren shall you set a king over yourself'—all appointments you make may be only from among your brethren.

The Kesef Mishneh there writes that Maimonides' source is the passages in Yevamot and Kiddushin cited above.

From these words of Maimonides it is clear that one does not appoint a king or any other position of authority from the assembly of converts, even after many generations, that is, even if his parents are converts. The only way is for someone from the assembly of converts to marry a Jewish woman of native lineage, or vice versa, as the Kesef Mishneh above held, and then their son is fit to be appointed king. It would seem, at first glance, that even the prohibition on appointing a king stems from the same social problem, and that we are not dealing here with an essential disqualification. Indeed, the Kesef Mishneh cited above applies this rule to Rehoboam as well, who ruled despite the fact that his mother was an Ammonite. We see that the fact that one parent is Jewish helps the convert even with respect to appointment to kingship.

Now the Radbaz on Maimonides there cites Tosefta Sanhedrin 4:10, and these words are brought also in Tosafot in the Yevamot passage and in the Ritva in the Kiddushin passage:

One may appoint a king only if he is eligible to marry into the priesthood.

From the Tosefta it is evident that one who is not fit to marry into the priesthood cannot be appointed to kingship. This is, of course, difficult for our passage and for Maimonides' ruling, for anyone who comes from the assembly of converts is not fit to marry into the priesthood, even if his mother is Jewish. How, then, can a convert whose mother is Jewish, and according to the Kesef Mishneh even one whose father is Jewish, be fit for positions of authority?

Indeed, in the Hagahot Maimoniyot on Hilkhot Kings 1:4 there it is written:

But in Sefer HaTerumah it is written: This applies only to other positions of authority; but with respect to kingship, it is taught in the Tosefta: 'One may appoint a king only from those eligible to marry into the priesthood.' The reason is that it says, 'From among your brethren shall you set a king over yourself'—from the choicest of your brethren. Therefore Israel incurred destruction when they flattered Agrippa and said to him, 'You are our brother,' in tractate Sotah. And this is what they say at the beginning of Bava Batra concerning Herod: 'Who expounds "From among your brethren shall you set a king over yourself"? The Sages whom he killed'—because they expound it to mean from the choicest of your brethren.

That is, precisely for this reason Sefer HaTerumah disagrees with Maimonides and argues that with respect to all appointments the convert is indeed fit if his mother is Jewish, but with respect to kingship he is not. In this way he resolves the apparent contradiction between the Tosefta and the Bavli in Yevamot and Kiddushin: he explains that the Bavli is speaking about other positions of authority, whereas the Tosefta is speaking only about appointment to kingship. In this way he also resolves why the Jews incurred destruction, as noted in Tosafot s.v. since his mother is from Israel in the Yevamot passage, where they challenged Rashi from that source; according to his view, it is quite well resolved. See also Nachmanides there, and the Rashba and Nimukei Yosef in the Kiddushin passage there. Tosafot s.v. 'that one,' Sotah 41b, likewise wrote to distinguish between a king and other positions of authority, and see also Knesset HaGedolah, Hoshen Mishpat 7, and Hagahot Beit Yosef there, letter alef, s.v. 'and if.'[7]

But according to Maimonides the difficulty would still seem to remain, for he does not distinguish between kingship and other positions of authority, and on his view if the mother is Jewish then he is fit even for kingship. And the Radbaz there in Hilkhot Sanhedrin indeed raises this Tosefta against Maimonides:

And not only kingship, etc. In the chapter Ha-Ḥoleẓ and in the Sifrei: 'You shall surely set a king over yourself'—this is a positive commandment; 'You may not set over yourself a foreign man'—this is a negative commandment. From here they said: We do not appoint over the community a leader who is not your brother. And in the Gemara we expound it from 'shall you set over yourself': all appointments you make may be only from among your brethren. And although it was taught in the Tosefta, 'One may appoint a king only from those eligible to marry into the priesthood,' and the reason is that it says 'from among your brethren'—from the choicest of your brethren; and this also appears in the chapter Ha-Ḥovel—nevertheless our teacher relied on the sugya of the chapter Ha-Ḥoleẓ, where we say that if his mother is from Israel he is valid, and in the Sifrei 'from among your brethren' is expounded as 'from among' and not from outside the Land, 'your brethren' and not others. And this also appears from the incident of Agrippa, to whom all Israel said, 'You are our brother,' and all Israel would not have flattered him.

That is, in his view this is a dispute between our passage and the Sifrei on the one hand and the Tosefta on the other, and Maimonides ruled like our passage, according to which even with respect to kingship he is fit if his mother is Jewish.

The Hagahot Maimoniyot and Sefer HaTerumah apparently understand the disqualification from the priesthood as a lineage disqualification, that is, an intrinsic disqualification, and therefore even if his mother is Jewish he remains disqualified. This is probably also how that view understands the disqualification from judging, though it then requires consideration why such a convert is fit to judge other converts like himself; perhaps that view disagrees with Tosafot on that point as well.[8]

But according to our approach, Maimonides disagrees with them on precisely this point, and apparently the Bavli and the Sifrei also differ from the Tosefta in exactly this respect, as the Radbaz explained. Maimonides holds that the convert's disqualification from appointment is not a lineage disqualification, but stems from the fact that he appears to the public as disqualified and inferior; it is a social disqualification. It is true that the Tosefta still poses a difficulty, for it states that a king must come only from those fit to marry into the priesthood, but below we will see that Maimonides rules that such a convert is also fit to marry into the priesthood, and then his words accord with the Tosefta as well. The Radbaz's objection from the Tosefta against Maimonides indeed remains difficult, for he assumes the position of the other medieval authorities, with whom Maimonides explicitly disagrees.[9]

Can Something Similar Be Said Also About the Marriage Prohibitions of a Convert?

In principle, there is a possibility of explaining that there is no contradiction at all from the Tosefta to the permissibility of a convert one of whose parents is Jewish, because the same permissions we found regarding the disqualifications from appointment exist also in the prohibition on marriage to a priest. One may assume that a convert has no lineage disqualification at all, for he is like a newborn infant and a Jew in every respect. Therefore, even the prohibition on a female convert marrying a priest is not because of a lineage defect in her, but is a social disqualification similar to what we saw with respect to appointment.

We already noted regarding the convert's disqualification from the priesthood that this is only a prohibition on a female convert marrying a priest. A male convert is permitted to a woman of priestly lineage, because women of priestly lineage were not prohibited to those with such disqualifications. What, then, about a female convert who has one Jewish parent? The Tannaim dispute this in Mishnah Kiddushin 77a, and see also the Talmud there. In practice Maimonides rules in Hilkhot Issurei Bi'ah 19:12:

Converts and emancipated slaves who married one another and had a daughter—even after many generations, since no Israelite seed has been mixed into them, that daughter is forbidden to a priest. If, however, she married one, she need not leave him, since her conception and birth were in holiness. But if a convert or emancipated slave married a Jewish-born woman, or an Israelite married a female convert or emancipated slave, their daughter is fit for the priesthood from the outset.

He writes explicitly that the prohibition to the priesthood also disappears if one parent is Jewish, exactly as in the law of appointment. Here too one may ask why lineage is not determined by the father, for we are taught that when there is no prohibition everything follows the male, and usually everything follows the disqualified side; therefore the daughter of a convert and a Jewish woman ought to have the status of a female convert. Let us recall that this was the proof we brought above that we are not dealing with a lineage disqualification. If so, we must now conclude that the prohibition to the priesthood is also not due to a lineage disqualification.

Moreover, Maimonides adds here that even if both parents are converts, if she married a priest she need not leave him, unlike a ḥalalah and unlike other Torah prohibitions and those merely liable for a negative prohibition. If so, the marriage prohibition also appears to stem from a social reality and not from an essential prohibition; therefore, when one parent is Jewish there is no prohibition at all.

The Maggid Mishneh there cites as the source for Maimonides the Tannaitic dispute in the Kiddushin passage. And there, in the passage itself on b, it is explained that the prohibition regarding the daughter of converts is only an extra stringency adopted by the priests and is not an actual prohibition, at least according to Rabbi Yosei. That itself is proof that even with regard to an ordinary female convert, the prohibition to a priest is not due to a lineage disqualification.

The conclusion is rather surprising. Until now our assumption was that the categories of 'assembly' and 'native-born citizen' do not include converts in any essential sense, and that only the prohibition on appointment is exceptional in that it does not stem from a lineage disqualification but from a social reality. Now it seems that even the definitions of the convert with respect to marriage disqualifications are social rather than genealogical-essentialist, at least with respect to the prohibition to the priesthood.

If so, it is clear that the Radbaz's objection to Maimonides from the Tosefta falls away on its own. It is based on the position of the other medieval authorities, according to whom in matters of marriage we do not find a permission when one parent is Jewish. But, as we have seen, Maimonides' own position is that this is so even with respect to this marriage disqualification.[10]

The Distinction Between a Gentile and a Convert

The Minhat Hinukh on commandment 498, subsection 1, distinguished between the case of Rav Mari, who was the son of a gentile who had relations with a Jewish woman and therefore is fit for kingship, and the son of a convert who had relations with a Jewish woman, who is regarded as belonging to the assembly of converts and is not fit for kingship. The difference is that when a gentile had relations with a Jewish woman, the child is related only to her, and therefore even if she is a married woman he is not a mamzer, as we shall see in the appendix. If so, he is a full Jew. But if his father is a convert, and therefore a valid Jew, then surely the child is related to him as well, and therefore is disqualified from kingship as a convert. Let us note that this is one of the possibilities we saw above in Rashi's explanation of the Yevamot passage, that he established the case as one of a gentile who had relations with a Jewish woman and not a convert who had relations with a Jewish woman, because in his view the son of a convert who had relations with a Jewish woman is disqualified from positions of authority.

The Minhat Hinukh there objects to the Maimonides cited above: how does he learn from Rav Mari that even in the case of a convert who had relations with a Jewish woman the child is fit for the priesthood? But his objection is not necessary, because Maimonides can understand our passage as referring to a convert who had relations with a Jewish woman and not to a gentile who had relations with a Jewish woman. The Minhat Hinukh assumes Rashi's interpretation and of course follows his approach, but Maimonides may disagree precisely on that point.[11] It seems that the Minhat Hinukh and Rashi assume that we are dealing here with a lineage disqualification, and therefore he seeks a source showing that the lineage disqualification does not exist when the mother is Jewish. Indeed, if this were a lineage disqualification, it would be very difficult to understand this permission. But as we have seen, Maimonides maintains that this is a technical social disqualification, and therefore when the mother is Jewish he is permitted, both with respect to the priesthood and with respect to appointment.

A Convert's Permission to Marry a Mamzer

Up to this point we have dealt with the prohibition on a convert's marriage into the priesthood. What about the other side of the convert's personal status, namely his permission with a female mamzer? Here it becomes much harder to make the matter depend on a social attitude. Above we saw that the Torah forbids what would otherwise be permitted because of society's attitude, namely appointing a convert and marrying him into the priesthood. But here we are permitting what the Torah forbade, namely marriage to a mamzer, and it is not plausible to permit a prohibition because of an improper social attitude on the part of society.[12]

Now in Maimonides, Hilkhot Issurei Bi'ah 15:7, it is written:

A mamzer may marry a female convert, and likewise a female mamzer is permitted to a convert; the children from either union are mamzerim, for the child follows the defective one, as it is said 'into the assembly of the Lord,' and the assembly of converts is not called the assembly of the Lord.

That is, a convert may marry a female mamzer, but the child is a mamzer.

Parenthetically, let us note that here too it is not clear why everything follows the blemished side, for the Mishnah in Kiddushin 66b states that when there is no prohibition and there is valid betrothal, everything follows the male, and therefore the child of a convert and a female mamzer ought not to be a mamzer. Here our explanation that we are dealing with a social flaw will not help, because we are dealing not with conversion but with mamzer status.

However, the Talmud itself in Kiddushin 67a raises this difficulty, and infers from the Mishnah in various ways, and see also there on b, that the case of a convert and a female mamzer is an exception. Yet it is still not clear why this is an exception. See also Beit Shmuel, Even HaEzer 4:36, who offers no explanation, and at 4:37 he suggests an explanation that will be brought below. Below we shall propose our own explanation.

In the next law there Maimonides writes, and so too does the Shulchan Arukh, Even HaEzer 4:23:

If a convert married a Jewish woman, or an Israelite married a female convert, the child is an Israelite in every respect and is forbidden to a female mamzer.

Here we see that if a convert married a Jewish woman, the child is a full Jew in every respect and is forbidden to a female mamzer. In other words, the permission with a mamzer is no different from the prohibition to the priesthood: if one parent is Jewish, the child is not regarded as a convert even with respect to permission to a female mamzer. This is so even though, when there is no prohibition, everything follows the male. Again, this indicates that we are not dealing with an essential disqualification, and the obvious alternative is the social disqualification described above.

The Ran on the Rif in Kiddushin, 30b in the Rif pagination, raised this difficulty:

And I do not know from where he derived this. Granted, when a gentile had relations with a Jewish woman, the child is a complete Jew and is forbidden to a female mamzer; there the reason is that it is impossible for him to be related after his father, for 'according to their families, according to their fathers' houses' was written regarding Israel. But here, where his father is a complete Israelite, why should he not be related after his father and be judged as a convert, who is permitted to a female mamzer? Here there is valid betrothal and no transgression, and the child should follow the male. This requires consideration.

The Beit Shmuel, Even HaEzer 4:37, also brings the Ran's question on Maimonides and writes:

And is forbidden to a female mamzer—thus ruled Maimonides, the Semag, and the Tur; and the Ran asked on this: since there is valid betrothal and no transgression, why do we not follow the male, and he is a convert? And so wrote Helkat Mehokek there, and Tosafot on page 77.

And perhaps Maimonides holds that this rule was stated only regarding Israelites, and not where one side is a convert; for with respect to a convert and a female mamzer too we rule that the child is a mamzer, even though there is valid betrothal and no transgression.

He links this to the law of a convert and a female mamzer, where, as we have already noted, the rule that when there is valid betrothal and no transgression the child follows the male also breaks down, and suggests that this rule is relevant only to a full Jew and not to converts, who are not part of the assembly. But it still remains unclear why this rule actually does not apply to converts. Here too there is an indication that the personal status of a convert is not an ordinary intrinsic disqualification but something else.

The Ran's argument recalls that of the Minhat Hinukh cited above, namely that in the case of a convert the child is related to him as well and not only to the mother, unlike the case of a gentile who had relations with a Jewish woman. And indeed, Tosafot s.v. 'and behold' in Kiddushin 74b write this explicitly, that the son is permitted to a female mamzer. See there in R. Hayyim for an explanation of the dispute between Maimonides and the Ran, though this is not the place to elaborate.

It seems that the Ran and Tosafot follow the approach of the Minhat Hinukh, according to which the convert involves a lineage disqualification, and therefore they assume that the son is a convert and should be permitted to a female mamzer. But Maimonides here continues his own approach and holds that this is a social disqualification and not a lineage disqualification. Therefore the son of a convert and a Jewish woman is a Jew and not a convert, and likewise the son of a female convert and a Jewish man is a Jew and not a convert, as the Kesef Mishneh wrote above, and therefore both are forbidden to a female mamzer and permitted to the priesthood. This is precisely Maimonides' position, that the convert's disqualification is not a lineage disqualification but a social one.

The Connection to the Definition of the Prohibition Concerning a Mamzer

What still remains to be understood is how it can be that the Torah permits the prohibition of marrying a mamzer because of a social reality. Granted, forbidding what would otherwise be permitted, namely marriage into the priesthood and appointment to positions of authority, can be understood as we explained above. But how can the Torah permit what is otherwise prohibited if there is no essential reason for it? Usually this is explained by saying that the convert is not part of the 'assembly,' as Maimonides wrote above, that a mamzer is forbidden to enter the assembly of the Lord, whereas converts are not the assembly of the Lord. Is the disqualification of assembly not an essential lineage disqualification, but rather a social one? I would now suggest that perhaps even this novel interpretation has room. These remarks are, of course, quite novel, and I intend only to point to the existence of this possibility, as a continuation of the arguments advanced in this article.

As is well known, a mamzer is forbidden to enter the assembly, and therefore an ordinary Jew may not marry a mamzer. What is the meaning of this assembly-disqualification? Strictly speaking, a doubtful mamzer is not treated as a mamzer and may be married; only as an added stringency in matters of lineage did the Sages forbid it rabbinically. See Kiddushin 73a and Maimonides, Issurei Bi'ah 15:21. Many have already wondered how the Sages derived in Kiddushin there that the verse speaks of a definite mamzer and not a doubtful mamzer, when all that the Torah wrote is that a mamzer may not enter the assembly. Is every concept written in the Torah limited only to certainty and not to doubt?

Now in Shev Shema'teta, gate 1 chapter 2, the author cites the well-known words of the Ran at the end of Kiddushin, that since the law transmitted to Moses at Sinai is that doubtful orlah outside the Land is permitted, Reuven may even feed Shimon definite orlah, and so long as Shimon does not know he is eating orlah, this is permitted for him, because from his perspective it is at most doubtful orlah. I heard from Rabbi Zvi Schechter, the head of the kollel at Yeshiva University, in a lecture he gave at the Hesder Yeshiva of Yeruham many years ago, that R. A.V., in an article he wrote in the journal Marbeh Torah,[13] argued that in all doubtful cases in which Torah law rules leniently, one may even feed another person what is in fact certainly prohibited. So it is with doubtful orlah outside the Land, doubtful mourning, doubtful firstborn, doubtful impurity in the public domain, doubtful mamzer, and the like.

By this he explained what several medieval and later authorities wrote, that one may marry off a doubtful mamzer even in mutually contradictory ways, see the Maharit as cited in Shev Shema'teta there, chapter 1, and in Rabbi Schechter's book Be-Ikvei HaTzon, section 38, letter d, p. 261; for example, that a doubtful mamzer may marry a female mamzer and a Jewish woman simultaneously, and the like. From this R. A.V. concluded in his article that at the Torah level one may marry off a definite female mamzer to someone who does not know that she is a female mamzer, exactly as the Ran wrote at the end of Kiddushin regarding definite orlah outside the Land. In the aforementioned lecture Rabbi Schechter explained that the basis of R. A.V.'s conception is that in all prohibitions whose doubtful cases are permitted by Torah law, the prohibition is subjective or consciousness-based. That is, the prohibition is not on eating orlah as such, but on eating something that I know to be orlah. And similarly with mourning, mamzer, firstborn, and so on.

If so, from here emerges the possibility of understanding that the prohibition on marrying a mamzer is also subjective, or consciousness-based. There is no prohibition on marrying a mamzer as such; rather, there is a prohibition on marrying someone whom I know to be a mamzer. We thus learn that even the definition of 'assembly,' which at first glance looks objective, is in fact nothing but a subjective perception. Hence we should not be surprised that a convert is permitted to a female mamzer, because the convert too is not part of the 'assembly' in that same subjective sense. And from here it follows that if there were a convert who, socially and in terms of public consciousness, were already perceived as part of the assembly, then he would no longer have permission to marry a female mamzer. As for a doubtful female mamzer, even a full Jew is permitted by Torah law. This is exactly the position of Maimonides that we saw.

From here we can also understand how the Sages derived the rule of a definite mamzer and not a doubtful mamzer. When the Sages saw that the Torah defines mamzer as a disqualification of the assembly, they understood, or had a tradition, that this is a subjective, consciousness-based prohibition, and therefore they determined that doubtful cases are permitted. This is unique to prohibitions of assembly, which the Sages may have assumed to be subjective and consciousness-based, and it is therefore precisely there that they expound doubtful cases leniently.

This also seems to explain why absorption into society works with mamzer status, as we find in Kiddushin 79b:

Rabbi Yehoshua ben Levi said: Money purifies mamzerim, as it is said, 'And he shall sit as a refiner and purifier of silver.' What is the meaning of 'those who bring an offering in righteousness'? Rabbi Yitzhak said: The Holy One, blessed be He, did a kindness with Israel, that a family that has become absorbed remains absorbed.

The Talmud brings the rule that a family that has become absorbed remains absorbed with respect to mamzer status. This is entirely parallel to the rule concerning conversion, according to which the status disappears when the label of conversion has been absorbed, as we saw above.

Perhaps this is also the explanation of why, when a convert marries a female mamzer, where there is no prohibition and there is valid betrothal, the child is nevertheless a mamzer, contrary to the general rule that one follows the male, see the words of the Beit Shmuel cited above. According to our approach, perhaps one can explain that the disqualification of mamzer is a consciousness-based disqualification and not an intrinsic one, and from here there emerges the possibility that anyone who is publicly perceived as a mamzer will have the law of a mamzer. Therefore, even when a convert marries a female mamzer permissibly, since this is publicly perceived as a problematic pairing, the child too is perceived as a mamzer, and the Torah itself assigns him the status of mamzer. But this is, of course, a very great novelty, and I have found no clear source for it. Therefore, it seems that this difficulty remains in place. Still, even without our remarks here this law is difficult, as the Ran and the Beit Shmuel already noted.

Summary and Additional Proofs

We began with the moral discomfort aroused by the law of the convert with respect to appointment and marriage. Despite the fact that the Torah warns us to treat the convert as one of us in every respect, and despite the fact that the convert is equal to a Jew in all the commandments of the Torah, we find two main exceptions in the laws of the convert: marriage, namely the permission with a mamzer and the prohibition into the priesthood; and appointment, namely to kingship and to other positions of authority. We noted that the moral difficulty as such is not enough to justify proposing so innovative a conception of the convert's disqualification; for that, proofs are needed from the sources of Jewish law, in the manner of Torah study itself.

As our discussion continued, we saw several clear indications that these prohibitions are not like other lineage disqualifications and intrinsic disqualifications, but are disqualifications of a different sort. First, the very disqualification from positions of authority indicates that we are not dealing with a formal disqualification of lineage but with a substantive disqualification, for we do not find formal disqualifications in offices such as charity collectors or water supervisors and the like, unlike judges or a king, where formal disqualifications do exist. We also saw that the definition of the child's personal status is not determined by the usual rules, namely that when there is a transgression one follows the defect, and when there is no transgression one follows the male. With respect to conversion, we saw that the matter follows social perception and not some objective status. Therefore, when one parent is an ordinary Jew, even if it is the mother, there is no disqualification. For the same reason we concluded that when the label disappears there is no longer any prohibition and he is considered a valid Jew in every respect, something that is stated explicitly only regarding permission with a female mamzer. We also saw that, at least with respect to judging, the convert may be appointed as a judge over other converts, that is, he does not bear an intrinsic disqualification from judging.

From there we moved to our proposal for understanding the convert's disqualification. Initially we proposed that, with respect to appointment, we are dealing with de facto recognition of an improper social attitude toward the convert: if he is appointed, it will be hard for him to perform his role, because his social standing will provoke challenges and disobedience. From this we suggested that there may perhaps be room to change this rule in a society that treats converts properly. We argued that in Maimonides' view this applies even to appointment to kingship, which, contrary to the opinion of some other medieval authorities, is not exceptional among positions of authority.

After that we turned to the prohibition of marriage, which at first glance appears to be a clear lineage disqualification. To our surprise, there too we saw that at least with respect to the priesthood it is plausible that we are dealing with the same kind of social prohibition, for if one parent is Jewish this validates the convert, contrary to the usual rules of lineage law, though it remains to be considered whether this too can change in a properly ordered society.

As for the permission with mamzerim, we noted that the novelty there is much greater, because there we are permitting a Torah prohibition, namely marriage to a mamzer, and not forbidding something otherwise permitted. Nevertheless, at the close of our discussion we raised the possibility that even the definition of 'assembly' with respect to mamzer status is subjective and consciousness-based, which somewhat softens the difficulty there as well.

In closing, let me note that neither the Tur nor the Shulchan Arukh mention at all the convert's disqualification from appointment. Granted, with respect to kingship those codes do not deal at all with the laws of kingship, since they do not apply in our time. But with respect to the rule governing other positions of authority, such as charity collector or water supervisor and the like, this remains difficult. Why was this rule not brought? Especially since the Kesef Mishneh seems to agree with Maimonides on this law, and yet he does not bring it in his own code. Indeed, in Iggerot Moshe, Yoreh De'ah, part 4, section 26, he remains uncertain about this. But according to our approach, it seems that at least in Maimonides' position this is a recommendation dependent on social circumstances, and we already noted that the Tur and Shulchan Arukh follow Maimonides' approach with respect to the marriage prohibitions. If so, perhaps there is room to argue that this explains why the law of appointment was not brought in those decisors, and, so far as I know, in none of their commentaries or other decisors either.

And indeed, Iggerot Moshe there discusses the appointment of a convert as a mashgiaḥ or as a head of a yeshivah, and writes:

And the case about which your honor asked was connected to appointing a convert as a teacher, or a lecturer, or a supervisor, or even as the head of the yeshivah. Your honor wished to prove otherwise from Shemaya and Avtalyon (Gittin 57b and Sanhedrin 96b: 'Descendants of Sennacherib taught Torah publicly'—who were they? Shemaya and Avtalyon), and more. Now, aside from the fact that we do not know exactly the lineage of these great figures, whether their mother was not from Israel, it is irrelevant as a matter of law to prove from them, since they were the greatest figures of their period and were in the chain of transmission; who knows whether this was not a special emergency ruling, similar to Deborah the prophetess, who judged (see Tosafot Bava Kamma 15a s.v. 'who,' that Deborah was accepted because of the Divine Presence, and in Yevamot 45b s.v. 'did she not immerse,' that a ruling by divine instruction is different). What relevance is there in comparing ourselves to them?

He presses hard in dealing with the case of Shemaya and Avtalyon, who were descendants of converts, and see also later in his remarks there, where he remains uncertain about this. He himself raises the possibility that their mother or father was Jewish, in which case it would be permitted to appoint them. But according to our approach, even without that there is no difficulty at all, because the public accepted them upon itself, and therefore there is no prohibition on appointing them. Indeed, from here there emerges another important practical implication of what we have said, namely that the rule of 'accepted him upon themselves' is effective for a convert with respect to all positions of authority.[14]

Interestingly, later there he writes:

But in practice one must know that the commandment 'you shall love the convert' (Deuteronomy, Ekev 10:19) obligates us to draw them near and to be lenient in all these matters. Therefore, after much consideration, it seems that these positions in our time should not be regarded as an exercise of authority, since the main role of a yeshivah is to teach students who wish to learn. Whatever power the administrators and heads of the yeshivah have over the students to dismiss them, or not to accept them at the outset, and the like, is only like the authority of an employer over his workers, and is not at all a formal appointment to authority. According to this, these positions are merely the fulfillment of a function and a kind of occupation.

That is, he himself sees a contradiction and tension between the commandment to love and draw the convert near, and these laws, and therefore allows himself to be lenient in them and to accept somewhat strained interpretations that make it possible to appoint converts. These words support the moral discomfort with which we began, and even the connection between such considerations and the halakhic discussion. As for the substance of his responsum, it seems that according to our approach there is no need for all the pressure into which he was forced on this issue, as explained above.

It should also be noted that Maimonides, in Hilkhot Kings 6:1, writes:

One does not wage war against any person in the world until first offering peace to him, whether an optional war or a commanded war, as it is said: 'When you draw near to a city to fight against it, you shall call out to it for peace.' If they make peace and accept the seven commandments commanded to the descendants of Noah, none of them is killed, and they become tributaries, as it is said: 'They shall become tributaries to you and serve you.' If they accept the tribute but not the servitude, or accept the servitude but not the tribute, we do not listen to them until they accept both. And the servitude they accept is that they shall be lowly and humble beneath Israel and not raise their heads in Israel, but remain subdued under their hand, and they shall not be appointed over Israel to any matter in the world…

Maimonides writes that if they accepted upon themselves the yoke of Israel, they are nevertheless not appointed to any office of authority over Israel. The book Hilkhot Beit David, section 8, end of letter alef, cited in the Frankel index here under 'to all positions of authority,' asks: why is this necessary, if even a righteous convert cannot be appointed over Israel to any position of authority? He was forced to say that this remains effective even for an appointment that does not involve authority. But according to our approach the matter is simple: here the prohibition is essential and not merely social, and therefore it is not subject to change. For example, one cannot simply accept such people upon ourselves, unlike righteous converts.

If so, all these proofs bear witness that the status of the convert does not point to a conception concerned with the convert's 'race' or origin, but rather with his social standing. From this it follows that this law may be subject to change, and perhaps it is even desirable to change it, for if our words are correct, then originally this law was established only as de facto recognition of an improper social norm that treated the convert as inferior. And from this perhaps our minds may also be more at ease on the moral plane. I have come only to place these suggestions before those who sit in judgment.

Appendix: The Child of a Gentile Who Had Relations with a Jewish Woman[15]

In the Yevamot passage mentioned above, they discuss a gentile who had relations with a Jewish woman, and the Tannaim and Amoraim dispute whether the child is a mamzer or fit. In practice we rule that he is fit. But with respect to the meaning of that fitness, the medieval and later authorities disagree.

In the Kiddushin passage as well, 75b, they discuss a gentile who had relations with a Jewish woman, and the opinion is brought there that the child is a mamzer:

And Rabbi Yishmael holds like Rabbi Akiva, who said: if a gentile or a slave has relations with a Jewish woman, the child is a mamzer.

In Tosafot s.v. 'Rabbi Yishmael' there they write:

Perhaps one may say: if the child is fit, then he follows the gentile, as stated at the end of the previous chapter (67b), and therefore there is no concern if she marries a gentile; but now that he holds the child is a mamzer, it follows that he goes after his mother, and there is greater concern that she not marry a gentile.

They understand the dispute whether the son of a gentile and a Jewish woman is a mamzer or fit as depending on whether he follows the Jewish woman, in which case he is an Israelite mamzer because there is no valid betrothal, or whether he follows the gentile, in which case he is fit. See similarly Tosafot s.v. 'Amora'i' in Yevamot 16b. If so, Tosafot understand that the view according to which the child is fit holds that this child is a gentile. See the Maharsha there in Kiddushin, who discusses the contradiction within Tosafot. And so too this is brought in Piskei Tosafot there, item 142.

This also appears from Rashi on Kiddushin 68b, s.v. 'let us say':

Let us say that Ravina holds that if a gentile or a slave has relations with a Jewish woman, the child is a mamzer—that is what this comes to teach us: that we do not cast him after the gentile, to say that he is a gentile and, if he converts, he would be permitted to enter the assembly; rather, we cast him after the Jewish woman, and since he was born through a transgression he is a disqualified Israelite, like others born from a union lacking valid betrothal, who, as we learned in the Mishnah above (Kiddushin 66b), are mamzerim.

And thus the Sha'ar HaMelekh, Issurei Bi'ah 15:3, proved from Rashi on the Torah, Leviticus 24:10. The Torah there writes:

And the son of an Israelite woman went out—and he was the son of an Egyptian man—among the children of Israel; and the son of the Israelite woman and an Israelite man fought in the camp.

And Rashi there wrote:

'Among the children of Israel'—this teaches that he converted.

We see that the son of a Jewish woman and a gentile requires conversion. Some, however, have rejected this proof, see Nachmanides and the Tosafists on the Torah there, on the ground that this was before the giving of the Torah, when everything followed the father, as stated in Yevamot 78b, 'among the nations, lineage follows the male.'

On the other hand, the Maharsha there argues that Rashi contradicts himself, for in Kiddushin 76a s.v. 'and we challenge Isur' he writes:

And we challenge Isur because of the slave woman—for it is certain that if a gentile or a slave has relations with a Jewish woman, the child is fit; only a slave woman and her child is a slave.

We see that when a slave has relations with a Jewish woman, the child is fit and does not require conversion.

According to the majority of decisors, the child does not require conversion. Thus the Imrei Moshe, section 27, subsections 10-12, proved from the Shulchan Arukh, Even HaEzer 4:5, which states:

If an Israelite had relations with one of these women, the child is like her. But if one of these had relations with a Jewish woman—except for a mamzer who had relations with a Jewish woman—the child is fit for the assembly, though blemished for the priesthood.

We see that he validates the son for the assembly, and he does not write that conversion is required. Especially since he wrote that he is blemished with respect to the priesthood, which implies that he is a Jew in every respect, for regarding a gentile it makes no sense to say that he is blemished with respect to the priesthood. And thus he proves as well from Maimonides, Issurei Bi'ah 15:3, and see also law 4 there, and likewise from the Maggid Mishneh there on law 9.

However, the Ohr Sameach on 15:3 argued otherwise:

Now Sha'ar HaMelekh discussed at length this law, whether the child is fit but still a gentile lacking conversion, as Tosafot wrote in Kiddushin 75b s.v. 'Rabbi Yishmael,' and in Yevamot 16b, and on this he marshaled questions and answers. What seems simple to me is this: what they wrote, that he is like a gentile, is according to those who hold—and so is the conclusion (Yevamot 42b)—that the child is fit even in the case of a married woman. The reason must be that we assign him to the gentile, and there is no mamzerut for gentiles, just as when a gentile has relations with a gentile woman; for this reason he still lacks conversion and is still a gentile. But according to the one who says that with a married woman he is a mamzer and with an unmarried woman he is fit, there is certainly no logic except to assign him to his mother, and he is like a complete Israelite. For if we were to assign him to the gentile and he were a gentile, then in the case of a married woman why would he be a mamzer? There is no mamzerut for gentiles. Consider this well.

He explains that the words of Rashi and Tosafot were said according to the view that the child of a gentile and a Jewish woman is fit even if the Jewish woman was married. The explanation is that the child is related only to his father and not to his mother. Later in his remarks he discusses conversion and argues that although he is a gentile he does not need conversion, because he converts automatically along with his mother, like a child whose conception was not in holiness and whose birth was in holiness.

He then distinguishes between a slave and a gentile:

And it seems to me very clear that even if we say, following Tosafot, that he is a complete gentile, nevertheless if a slave had relations with a Jewish woman, the child is not a slave. For how could his master have any right in what was conceived in a Jewish woman? We have never heard that a master has such a right except in a case where a man sells his maidservant to another and reserves for himself what she will bear or conceive afterward, as explained in the Jerusalem Talmud Bava Batra 3:1. But we do not find anywhere that a man can say to his slave woman: 'You are free, but I reserve to myself the child you will later conceive,' so that he would retain the same rights in the offspring as before. Rather, once she conceived while she was an Israelite, it is impossible that any person should have rights or ownership in them. How could the mind tolerate that a slave who has relations with a Jewish woman should produce a slave child? Therefore this matter is clear: if an unimmersed slave had relations with a Jewish woman, the child is a gentile, not a slave. And if the slave had immersed, the child is like one born from an emancipated slave who had relations with a Jewish woman, whose child is fit even though the slave did not immerse after emancipation, as the Maggid Mishneh wrote (13:12). And with this all the proofs brought by the Maharsha and Sha'ar HaMelekh that Rashi held that when a gentile has relations with a Jewish woman the child is an Israelite fall away; accordingly not a single proof remains.

In this way he resolves the contradiction we saw above in Rashi's words.

In Imrei Moshe, section 27:12, he challenged this reasoning: why could there not be a slave who is the son of a Jewish woman? True, he is not owned by a Jew, but his status, and his obligation in the commandments, would still be that of a slave. Perhaps the Ohr Sameach holds that status and obligation in the commandments are a result of ownership. However, Imrei Moshe there proves otherwise from the case of the slaves of a convert who died, where a verse teaches that his death releases his slaves; this indicates that without the verse there would still have been slave status even without owners.

But it seems possible to reject his proof in two ways. First, that is precisely what we learn from the verse regarding the slaves of a convert who died, that the prohibition depends on ownership. Second, in the case of the slaves of a convert who died, there was already a prohibition, and therefore it does not simply lapse even if ownership has lapsed, as we find in the case of a slave whose writ of emancipation is still pending, that is, a slave who was abandoned but still requires a writ. Here, however, we are dealing with a slave upon whom they wish from the outset to create a halakhic prohibition-status without ownership, and that is impossible.

One might perhaps explain that conversion is necessary even though the son is Jewish, simply because of the gentile element within him. This would be so if we assume that conversion is the removal of uncircumcision and Jewishness is the result that follows. In the case of an ordinary gentile, conversion removes his uncircumcision and thus he becomes Jewish. But in the case of the son of a gentile who had relations with a Jewish woman, halakhically he is Jewish but there remains in him a gentile aspect. Conversion is required, at the Torah level, in order to remove that gentile aspect within him.

In Bekhorot 47a we learned:

But Rav Pappa said: Rabbah tested us: What is the law if a woman of priestly lineage became pregnant from a gentile? And I said to him: Is this not like the case of Rav Adda bar Ahavah, who said: If a Levite woman gave birth, her son is exempt from the five shekels? And he said to me: How can you compare? In the case of a Levite woman, she remains in her sanctity, for it was taught: A Levite woman who was captured or had illicit relations is still given מן המעשר and may eat it. But a woman of priestly lineage—once he has relations with her she becomes a non-priest!

We see that according to Rabbah, when a woman of priestly lineage became pregnant from a gentile, the child is obligated in redemption of the firstborn like the child of a non-priestly woman. In the book Sha'ar HaMelekh there he proved from this that when a gentile has relations with a Jewish woman, the child is Jewish and does not require conversion, and he remained puzzled by the positions that require conversion.[16] In Imrei Moshe there, he wrote to resolve the difficulty of Sha'ar HaMelekh in accordance with what we said above: he is indeed Jewish, but that does not mean that he does not require conversion, because the conversion addresses the gentile side in him, inherited from the father.

Something similar was written by the Ahiezer, section 2, subsection 6. He asked: a convert is like a newborn infant, so how can he be related to his mother? He answered that a convert who has converted is like a newborn without father or mother, and he infers this from the language of Rashi in Sanhedrin 58a, s.v. 'whose conception was.' But here he does have a Jewish mother, and therefore even when he converts he remains related to her. See there.

In summary, we learn that there are four views regarding the law of the child of a gentile who had relations with a Jewish woman. First, the Tannaim and Amoraim dispute whether he is fit or a mamzer, and in practice we rule that he is fit. But within the view that he is fit, we saw three positions: first, the plain sense of Rashi and Tosafot in Kiddushin is that he is a gentile, and we saw the possibility that perhaps his conversion is effected automatically along with his mother. Second, Imrei Moshe raises another possibility in the view of Rashi and Tosafot, namely that he is a Jew who nevertheless requires conversion at the Torah level. Third, the majority of the medieval authorities and decisors hold that he is a fully valid Jew, though perhaps blemished with respect to the priesthood, as emerges from some of the medieval authorities in the Yevamot passage, but that is not our concern here.

[1] My thanks to the editor, Rabbi Shmuel Ariel, for several important comments and several interesting and relevant sources, some of which were incorporated into the article and influenced its content.

[2] To be sure, Jewish law contains other lineage disqualifications in several contexts as well, but usually those stem from a transgression committed by the individual or by his ancestors. In the case of the convert, by contrast, this is decreed by virtue of his origin alone; his parents, and he himself as well, were born gentiles, and there is no transgression in that. Hence it is more troubling. Toward the end of the article we will also comment on the personal status of a mamzer.

[3] In summarizing our discussion we will cite the formulation of Rabbi Moshe Feinstein, who pointed to the contradiction between the obligation to treat converts properly and the inferior nature of their personal status. He concludes from this that at the very least we are obligated to interpret the law in the most lenient possible way, and sometimes even in a somewhat strained way. We shall propose here a picture that to a considerable degree obviates that need.

[5] However, see the language of the Talmud in Kiddushin 75a, 'They say: it is an Israelite who is marrying a female mamzer,' and Rashi there implies that this is only a rabbinic concern.

[6] In the appendix we shall see that Rashi's position is, like option 2 above, that such a person requires conversion despite the fact that his mother is Jewish. This emerges clearly from his language here, when he refers to him as a convert.

[7] Some have written that the law regarding a king is derived from the phrase 'a foreign man,' whereas the law regarding other positions of authority is derived from 'from among your brethren.' See KeTorah Ya'aseh, chapter 1 section 7, and Emek HaNetziv on Shoftim, paragraph 157 (188a).

[8] In the book Keren Orah on the Yevamot passage there, he challenged the medieval authorities cited above, who side with Rashi and Sefer HaTerumah that kingship differs from the other positions of authority, against Maimonides: from where do they know that both father and mother must be Jewish, and why should the father alone not suffice as in all matters of lineage? He further challenged them there from Rehoboam, born of Naamah the Ammonite and an Israelite father, namely King Solomon, who nevertheless was king; that proves that it is enough for the father to be Jewish. This is precisely the argument of the Kesef Mishneh we cited above.

And I saw in the lectures of Rabbi David Povarsky on Yevamot, section 374, that he answered that kingship does not depend on lineage, and therefore according to those medieval authorities both parents must be Jewish, unlike the Ran and Tosafot, who are satisfied if one side is Jewish. As for Rehoboam, he explains that his kingship came by inheritance, and therefore the father alone sufficed. Only in the case of a new king do they require that both sides be Jewish.

[9] There would have been room to distinguish between the priesthood and kingship, and to say that the comparison was stated only with respect to lineage disqualifications, whereas the convert's disqualification is not a lineage disqualification, so one cannot infer from here a disqualification for kingship. There is one exceptional example that goes in the opposite direction, namely someone who is fit for the priesthood and not for kingship, and we will now mention it.

The Vilna Gaon, in his glosses to the Shulchan Arukh, Even HaEzer 6:23, explains that if a slave or gentile had relations with a Jewish woman, then according to Maimonides and the Shulchan Arukh only the daughter is disqualified from the priesthood and not the son, because there is no actual status of ḥalalut here. He then adds that perhaps the daughter is even permitted to the priesthood, and that the meaning of the blemish is only that the child is not appointed king because he lacks lineage. We thus have here the opposite phenomenon, someone who is fit for the priesthood and disqualified from kingship. Once again, the reason is that we are not dealing here with a lineage disqualification, and the proof is that he is fit for the priesthood. This is a different disqualification for kingship, and the comparison drawn in the Tosefta does not apply to it. Beyond the fact that this is another exception to the comparison made by the Tosefta, it is also proof that there are disqualifications for kingship that are not lineage disqualifications, as we argued regarding the convert.

To say that the words of the Vilna Gaon reflect Maimonides' position seems difficult, however, for according to Maimonides such a person is fit for kingship if his mother is Jewish. Perhaps only the son of converts whose mother is Jewish is fit, whereas the son of a gentile or a slave whose mother is Jewish is not fit. See below concerning this distinction in the Minhat Hinukh, though in the opposite direction.

In any event, as we shall see immediately, there is no need for this distinction, because the objection from the Tosefta is based on an error, at least according to Maimonides.

[10] With some strain one could say that this is precisely the intention of the Radbaz, when he wrote that Maimonides relied on the Bavli. That is, one could claim that from the Bavli here it follows that the daughter of a convert and one Jewish parent is fit even for the priesthood, and on that Maimonides relied. But that does not seem to be the implication of his language, for he anchors himself in the Yevamot passage and not in the Kiddushin passage concerning the permission of the daughter of a convert and a Jewish parent to the priesthood.

[11] Of course, there is also the possibility that Maimonides simply does not accept the distinction proposed by the Minhat Hinukh. Here we have suggested an explanation of Maimonides' view even on the assumption of the Minhat Hinukh.

[12] And it is forced to say that the Torah wanted to enable him to marry because ordinary Jews do not want to marry converts, owing to the discriminatory attitude that regards them as inferior.

[13] That article is not available to me, and therefore I did not examine it directly and did not quote it.

[14] I have since seen that a number of decisors discussed the rule of 'accepted him upon themselves' with respect to converts in various positions of authority. See the aforementioned Iggerot Moshe, and additional decisors cited in Sefer HaMafte'ach in the Frankel edition on this law in Maimonides, Hilkhot Kings 1:4, under the heading 'until his mother is Jewish.'

And regarding Shemaya and Avtalyon as well, see Sefer HaMafte'ach in the Frankel edition here, under the heading corresponding to 'and needless to say.'

[15] After writing these remarks, I saw additional relevant points regarding lineage among Jews and among gentiles in Rabbi Zvi Schechter's book Eretz HaTzvi, sections 16-17. I therefore note the reference here.

[16] But even according to his own approach, the matter is not entirely clear, for the child should apparently have been a priest by virtue of his mother. If he is not a priest, that is, if he is not related to his mother, then he would have to be a gentile, because he would be related to his father. One might perhaps say that even when he has no father at all, priesthood still passes only through the father; therefore here he is Jewish and not a gentile because of his mother, but the priestly status cannot continue through the mother, and therefore he is simply Jewish.