Innovation, Conservatism, and Tradition – Lesson 16
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Moving from the question of changing Jewish law to the question of tradition
- Midrashic conservatism, reasoning, and the burden of proof
- The status of the convert: Torah equality versus three discriminatory laws
- Appointing a convert to positions of authority as a reflection of a social flaw
- The source of the law about positions of authority and the source of the marriage laws
- A female convert marrying a kohen and the daughter of converts: Maimonides and the signs of a non-essential prohibition
- The permission for a convert to marry a mamzeret and the structure of “the community of converts is not called the community of God”
- Possible mamzer, Ran, and Rabbi Elchanan Wasserman: a prohibition dependent on knowledge
- “A family that became assimilated, became assimilated” and assimilation as a key to understanding mamzerut
- Implications for understanding the permission for a convert to marry a mamzeret and its dependence on social status
- Igrot Moshe: appointing a convert to Torah positions and “you shall love the convert”
- Summary of the convert example as a case of Torah-level change within midrashic conservatism
Summary
General Overview
The speaker summarizes the discussion so far of the tension between the eternity of Jewish law and its adaptation to circumstances, and of the legitimacy of change within the halakhic framework. He says that later in the series he wants to move on to comments about tradition even without a direct connection to change. He returns to the example of the convert’s status as a case of “midrashic conservatism,” which allows halakhic change on the basis of a conservative midrash, sometimes even without proofs when reasoning is better than the alternative, and in the present case even with proofs from sources. He argues that the gap between the Torah’s command to treat the convert equally and the laws that discriminate against converts and their children requires explanation, and he suggests that the focus is not an “essential defect” but social or subjective mechanisms, including a conception that the prohibition of mamzerut depends on knowledge. He cites discussion in Maimonides, the Talmud, Ran, and remarks quoted by Rabbi Tzvi Schechter in the name of Rabbi Elchanan Wasserman, and concludes with Igrot Moshe on appointing a convert to Torah roles and with an emphasis on the power of the commandment “you shall love the convert” to incline halakhic rulings toward leniency in cases of doubt.
Moving from the question of changing Jewish law to the question of tradition
The speaker presents the discussions of “Reform, not Reform, simple conservative, midrashic conservative” as arguments revolving around the question of change in Jewish law and its scope within the halakhic framework. He says that in the remaining sessions he wants to offer comments on tradition as such—what can be expected from tradition and what cannot, and whether there are changes in tradition that are not really changes in Jewish law.
Midrashic conservatism, reasoning, and the burden of proof
The speaker defines midrashic conservatism as the ability to propose a conservative midrash that allows halakhic change even without proofs, if it is more reasonable than the alternative. He presents the example of validating women for testimony as a possible conservative midrash resting on the claim that the disqualification stemmed from social-historical conditions, and argues that even in the absence of proofs one can still rely on reasoning as long as there is no evidence against it. He shifts the burden of proof to whoever attacks the reasoning, and says that “a doubt cannot override a certainty” when it comes to preferring halakhic action that implements Jewish law as it should be observed under current circumstances.
The status of the convert: Torah equality versus three discriminatory laws
The speaker points to a contradiction between the Torah’s demand to equate the convert with a Jew by birth, not mention his past, and not harm him, and three areas in which Jewish law discriminates against converts and their children. He lists the three points as appointing a convert to positions of authority—from “king down to water distributors or charity collectors,” the permission for a convert to marry a mamzeret or a female convert to marry a mamzer, and the prohibition on a kohen marrying a female convert.
Appointing a convert to positions of authority as a reflection of a social flaw
The speaker argues that the disqualification of appointing a convert to authority stems from a flaw in Jewish society, which looks down on the convert, reminds him of his past, and undermines his authority. Therefore Jewish law prevents the appointment because he will not be able to function and people will not accept his authority. He concludes that in a corrected society that gives the convert proper treatment there is no obstacle to appointing converts to authority, and he brings proofs such as Tosafot allowing a convert to judge other converts like himself, because the problem lies in the public’s attitude and not in an essential defect. He adds that the permission to appoint someone when “his father is from Israel or his mother is from Israel” indicates that the standard is the social stain and not “genetic” lineage, because the previous generation’s marriage shows social acceptance that removes the concern of damage to authority.
The source of the law about positions of authority and the source of the marriage laws
The speaker replies that the source for the prohibition on appointing a convert as king is “from among your brethren,” and the Talmud extends that to every position of authority. He says that the marriage laws involving a convert and a mamzer, and the related discussions, also come from Talmudic passages, and he estimates that they are “anchored in verses as well” and are “part of the primary law.”
A female convert marrying a kohen and the daughter of converts: Maimonides and the signs of a non-essential prohibition
The speaker cites Maimonides in the laws of forbidden sexual relations: “Converts and freed slaves who married one another… and had a daughter… that daughter is forbidden to a kohen,” but “if she married, she does not leave him, since her conception and birth were in holiness,” and presents this as a sign that this is not an ordinary prohibition of the kind of a kohen and a divorcée. He adds Maimonides’ law that if “a convert or freed slave married a Jewish-born woman” or “a Jew married a female convert,” their daughter is “fit for the priesthood ab initio,” and he asks: according to the normal rules of lineage, one might have expected to see the daughter of a convert and a Jewish woman as “in her lineage a convert,” and yet she is permitted to a kohen. He adopts a student’s suggestion that the priesthood is also a kind of “guild” and status similar to authority, and emphasizes that the findings in Maimonides and in the Talmud in tractate Kiddushin 77, including the phrase “an embellishment practiced by the kohanim,” indicate that the prohibition concerning the daughter of converts is not necessarily an essential lineage defect but is connected to social-status considerations.
The permission for a convert to marry a mamzeret and the structure of “the community of converts is not called the community of God”
The speaker cites Maimonides: “A mamzer may marry a female convert, and likewise a mamzeret is permitted to a convert… as it says ‘the community of God,’ and the community of converts is not called the community of God,” and emphasizes that the child is a mamzer because “the child follows the blemished one.” He also cites Maimonides saying that “if a convert married a Jewish-born woman, or a Jew married a female convert, the child is a Jew in every respect and is forbidden to a mamzeret,” and sees the return of the prohibition when there is “a father or mother from Israel” as an indication that the permission for a convert is not the product of essential lineage. He cites Ran’s difficulty—“and I do not know from where he derives this”—and his question why the child should not follow his father and be judged like a convert, who is permitted to a mamzer, and says that the difficulty strengthens the suspicion that the law is not “essentialist.”
Possible mamzer, Ran, and Rabbi Elchanan Wasserman: a prohibition dependent on knowledge
The speaker presents the rule that a possible mamzer is permitted by Torah law, and that only “an extra stringency they made regarding lineage” prohibits it rabbinically, and he notes that the exposition “the Merciful One said a definite mamzer, not a doubtful mamzer” sounds strange. He describes the dispute of Maimonides against Rashba and Ran regarding “in a Torah-level doubt one rules stringently,” and notes that Maimonides uses this exposition as a source for the idea that Torah-level doubts are ruled leniently and only rabbinically are they treated stringently. He cites Ran’s innovation regarding doubtful orlah outside the Land of Israel, according to which it is permitted to serve definite orlah to a person who does not know, because from his perspective it is a permitted doubt, and he mentions a quotation he heard from Rabbi Tzvi Schechter in the name of an article by Rabbi Elchanan Wasserman in Merbitz Torah that extends this even to a definite mamzer with respect to someone who does not know. He explains that doubt is a subjective state of the person and not a status in the object, and therefore prohibitions in which “their doubt is treated leniently” are defined as prohibitions whose definition depends on knowledge, so that without awareness “there is no prohibition at all,” and not merely an exemption for an unintentional sinner.
“A family that became assimilated, became assimilated” and assimilation as a key to understanding mamzerut
The speaker cites the Talmudic law “a family that became assimilated, became assimilated” as further proof that the prohibition in mamzerut is tied to public knowledge and not to objective reality like pork. He argues that even if information can be uncovered in archives, as long as there is no public knowledge and no known status of mamzerut, there is no room to dig and recreate the status, because the prohibition concerns knowingly marrying a mamzer, not the mere fact of such a marriage.
Implications for understanding the permission for a convert to marry a mamzeret and its dependence on social status
The speaker suggests that the subjective nature of the prohibition in mamzerut helps explain why a convert is permitted to marry a mamzeret, while in a case where “his mother is from Israel or his father is from Israel” they again require the standard of “a Jew in every respect,” and the prohibition returns. He raises the possibility that the gap is connected to the level of social status and the meaning of “compromise” in matchmaking and of granting legitimacy, and notes that the move is not fully resolved for him and he remains uncertain how to formulate precisely why the convert lacks this subjective prohibition. He raises a possible practical implication: if society became “corrected” and the status of converts were completely equal, perhaps even an actual convert would be forbidden to a mamzeret, because the social experience and the status meaning of the marriage would change.
Igrot Moshe: appointing a convert to Torah positions and “you shall love the convert”
The speaker quotes Igrot Moshe regarding appointing a convert as a schoolteacher, lecturer, supervisor, or rosh yeshiva, and the attempted proof from Shemaya and Avtalyon that “descendants of Sennacherib taught Torah publicly,” alongside the rejection of that proof because perhaps “their mother was from Israel” or because it was “an emergency ruling.” He suggests that according to his approach there is no need for an emergency ruling, because when it is clear that people will accept the authority of “the great sages of the generation,” there is no social concern and therefore no obstacle. He cites Rabbi Moshe’s ruling that the commandment “you shall love the convert” obligates us to draw converts close and be lenient in these matters, and Rabbi Moshe’s claim that in many yeshiva roles this is not “an act of authority” at all but is more like a homeowner over his workers, and he emphasizes that Rabbi Moshe recognizes the tension between love of the convert and the halakhic discriminations and instructs that in case of doubt one should choose leniency by force of the commandment.
Summary of the convert example as a case of Torah-level change within midrashic conservatism
The speaker concludes that the issue of the convert was meant to demonstrate concretely how “midrashic conservatism” can ground change even in Torah-level laws through a conservative midrash supported by reasoning and by sources. He says that in this case the midrash can be proven from sources, and therefore it is less radical than other proposals such as validating women for testimony, and he ends by saying that he stops here after finishing the matter of converts.
Full Transcript
[Rabbi Michael Abraham] Up to this point I’ve basically focused on this tension between the eternity of Jewish law and Torah on the one hand, and adaptation to circumstances—value-based circumstances, factual circumstances, and so on—on the other. Or really, one way or another, I mainly addressed the question of changes in Jewish law: how far that is possible within the halakhic framework. The distinctions—Reform, not Reform, simple conservative, midrashic conservative—all these discussions in the end revolved around the question of change. What I want to do in the meetings we still have left—we’re already getting close to the end—in the meetings remaining in this series, is to offer a few comments about tradition not necessarily connected specifically to changes. What can one expect from tradition, and what not? Are there what we might call changes in tradition that are not really changes in Jewish law? That’s what I want to talk about a bit today. But before I get to that topic, I still want to finish a point I didn’t get to from the discussion about the status of the convert. Let me just briefly remind you. I brought the discussion about the status of the convert as an example of midrashic conservatism, which, as I said at the end, in this case the midrash I brought to support the claim of change was actually a well-founded midrash. Meaning, I had proofs for this midrash from various sources, Talmudic passages, Maimonides, and so on. In that sense, this is a change—let’s call it a less radical one—than the midrashic conservatism I defined in previous sessions. Because in those previous sessions I argued that even if, on the basis of reasoning, I see a certain conservative midrash—we spoke, for example, about validating women for testimony—and I suggested a conservative midrash saying that women were disqualified because they were not educated or not involved in the labor market, and today they are, and therefore today their status, their legal status, should change—that was a proposal for a conservative midrash. There my claim was: I have no proofs for that conservative midrash. Maybe it’s the correct explanation, but maybe not; I can’t bring proofs for it. And then I argued that even if I don’t have proofs, as long as that midrash sounds reasonable to me—more reasonable than any other option—it can still be used in order to change Jewish law. And that isn’t Reform; it’s a change—call it legitimate, Orthodox, whatever term you like—within the framework of Jewish law. And why? Because you always have to set it against the alternative. Is the alternative to leave the disqualification of women from testimony exactly as it has been until now? If my midrash is correct, then I’m actually doing something that is not correct according to Jewish law. I’m disqualifying women even though they are valid witnesses, and of course that also leads to money not being returned to its rightful owners, criminals not receiving the punishment they deserve, and so on. But if I do implement the change, then in the end I’m observing Jewish law as it ought to be observed under present circumstances. Therefore, even if I have no proofs for the conservative midrash, I also have no proofs that it’s false. So now I only need to decide which of the two alternatives is more plausible. And since the reasoning seems to me to be that this is the basis for disqualifying women—especially if the alternative is some mysterious hidden defect that nobody knows how to identify or explain—then why abandon something that has logic behind it because of the concern that maybe there is some other explanation we haven’t thought of? A doubt cannot override a certainty. And so when I compare these two alternatives, the conservative midrash—even if I have no proofs for it—the reasoning itself, common sense saying that this midrash is correct, is enough to make use of it. So midrashic conservatism can propose conservative midrashim without bringing proofs, contrary to the built-in halakhic instinct not to accept change unless you bring proof. I think that when I have reasoning, I don’t need proof. Once I have reasoning, the proofs are needed in order to say that the reasoning is wrong. If they bring proofs, then of course I should give it up, but the burden of proof shifts to the one attacking the reasoning. But here, regarding the convert, I brought four or five proofs, I think, for the conservative midrash I proposed. So here it’s not only that the midrash makes sense—which by itself would have been enough to use it—but there were also proofs. And in that sense it seems to me that the move I proposed last time ought already to be acceptable maybe even to simple conservatives. The simple conservatives ultimately say: we stick to the sources as is. I also stick to the sources as is. And I showed that within the sources, what disqualified the convert was his social status. That’s what the sources say. So I’m also sticking to the sources. I’m not changing it because circumstances changed. I’m sticking to the sources as they are. At least when I have proofs for the midrash, it seems to me this could even be accepted by simple conservatives, to the extent that there really are such people. I said that in practice there really aren’t. So that’s the example I brought regarding the status of the convert, and I mentioned here the midrash I constructed and said that there were a few points that still require explanation. On the one hand, Jewish law—the Torah and Jewish law—expect us to equalize, to treat the convert equally, like a Jew, to equate his status with the status of a Jew. It is forbidden to mention his past, and so on; it is forbidden to harm him; the Torah is very strict regarding the honor of converts and the treatment we are supposed to give them. And on the other hand, or together with that, there are several points in Jewish law where it does discriminate against converts in comparison to Jews by birth, and even against the children of converts, who are already Jews by birth—against them too. And this comes down mainly to three things. One is appointing a convert to positions of authority, from king all the way down to water distributors or charity collectors or things like that. Another is the permission for a convert to marry a mamzeret or a female convert to marry a mamzer. And the third is the prohibition on a kohen marrying a female convert. Meaning, a convert marrying a woman from a priestly family is permitted, but a kohen marrying a female convert is forbidden. So those are the three points that seemingly need explanation. The Torah tells us to treat the convert like a newborn child—so to speak—and from our standpoint he is like a Jew by birth; he is born now. Fine. So how is it that his problematic past is perpetuated through these three discriminatory laws? “Discriminatory” is not always a stringency, right? Permission regarding a mamzer is a leniency, not a stringency. But still there is a sense here that they are treating the convert as second-class; that’s why he is allowed to marry a mamzeret, unlike a Jew who is forbidden. True, we are being lenient with him in the practical sense, but there’s something here that treats him as if he has lower status or something like that. So regarding appointment to positions of authority, that’s what I said last time. I think the whole disqualification of appointing a convert to authority stems from this—from a defect in Jewish society, that Jewish society relates to converts not as it should. I brought examples, right? They remind them of their ancestors, and in conflicts they always remind him that he’s a convert, and so on. Therefore Jewish law says: don’t appoint him to authority, because he won’t be able to function properly. People won’t listen to him, they’ll fight with him, they won’t accept his authority, and so they said: don’t appoint him to authority. If I’m right about this, then of course in a corrected society that gives proper treatment to converts there is no obstacle at all to appointing converts to authority. And I brought various proofs for this. For example, what the Talmud says—or really Tosafot says—that a convert can judge other converts like himself, even though he cannot judge Jews. If he is invalid as a judge, then he’s invalid as a judge—the converts are Jews too. How can he adjudicate between converts? But if I understand that it is only a question of proper or improper treatment of a convert, then I say: once it’s among converts, there’s no problem. They don’t look down on him because he is a convert; they too are converts. So there the problem for which the convert is disqualified doesn’t exist. I explained in the same way why if his father is from Israel or his mother is from Israel, once again it is permitted to appoint him to authority. And seemingly, at least if his father is from Israel, in every case where there is no transgression, lineage follows the male; where there is a transgression, it follows the blemished one. That’s the rule in lineage. So here there is no transgression; a convert is permitted to marry a Jewish-born woman, and yet the child should follow the father. But if the father is Jewish and the mother is a female convert, then the son should be Jewish and not a convert, because lineage follows the male. But no—the child now is a convert in terms of… sorry, the other way around. If the father is a convert and the mother is a Jewish-born woman, then the child should have the lineage of a convert, because lineage follows the male. But if the mother is Jewish, then in practice one may appoint him to authority—the legal authorities write that in fact one may appoint him to authority. If one may appoint him to authority, why? In terms of lineage he is a convert. You see that this is not a matter of lineage; it’s not a question of genetics. It’s a question of how we treat him, not of what he is. Therefore if his parents are already what you might call a mixed marriage—meaning a convert with a Jewish woman or a female convert with a Jewish man—that means that already in the previous generation they accepted the convert father or the female convert mother as part of society. The fact is that Jews married them. Therefore the child no longer has this social stain of being second-class, and so he may be appointed to positions of authority. And so on—I brought a few more proofs. The very fact that they disqualify for positions of authority—what does that even mean? There is nowhere else in Jewish law where there are rules of bodily disqualification that mean someone cannot be appointed to be a water distributor. What’s that got to do with anything? There are bodily disqualifications in testimony and in judging; there are bodily disqualifications in statuses that have halakhic standing, so Jewish law says who may be appointed and who may not. But in distributing water, or being a public clerk, or whatever, where do we find bodily disqualifications for appointments to roles that aren’t founded in Jewish law and are not defined by Jewish law? So all of this shows that we are not really dealing here with an essential defect but with a result of improper treatment of converts, and the implication is that if there is a society that does give proper treatment, these disqualifications lapse or do not exist in it.
[Speaker B] Can I ask something? Yes. What is the source of these laws in the first place? About positions of authority and about marrying… what do you mean, what’s the source?
[Rabbi Michael Abraham] The Talmud brings it; it starts with the king.
[Speaker B] Right, “from among…”
[Rabbi Michael Abraham] “your brethren.”
[Speaker B] So that’s the king, and that’s clear, but how do you get from there to positions of authority?
[Rabbi Michael Abraham] The Talmud continues; the Talmud says that just as with the king, so too with every position of authority. No separate source is brought for other positions of authority; it’s an extension of the law said about the king, because the reasoning is this: why can a king not be a convert? Because of the authority given to him. If so, then every authority position, even one lower in the hierarchy, should not be given to converts. In any case, the source is from the Talmud. And what about the marriages?
[Speaker B] What? And the marriages—the whole marriage issue?
[Rabbi Michael Abraham] What do you mean, the marriage issue?
[Speaker B] That a convert can marry a mamzeret—okay, marriage disqualifications for Jews that a convert can avoid. This whole issue of marriage, where does it come from? What’s the source?
[Rabbi Michael Abraham] That too, that too—it’s Talmudic passages. Everything, everything, yes. It’s not something that developed over the generations. It’s in the Talmud. At the moment I don’t remember exactly which verse they bring on this point, but these are things—I’m almost certain it’s anchored in verses too. In other words, it’s clear that this is primary law; it’s a clear thing. Now up to this point we’ve talked about appointment to positions of authority. But what really happens with the other two laws? The permission regarding mamzer or mamzeret, and the prohibition concerning a kohen. Here, seemingly, that route is not open to us, because the prohibition on marriage into the priesthood is, on the face of it… it looks like a lineage disqualification. Meaning, there are various people disqualified from marrying into the priesthood, and the convert is one of them. This isn’t like appointment to authority, where I said that in appointment to authority we don’t find disqualifications or bodily disqualifications at all, so it is plausible that when the convert is disqualified there, it’s not because of a bodily defect, because there is no essential defect in him, but because of social attitude. But the prohibitions on marrying a kohen are, on the face of it, lineage prohibitions. Therefore here the disqualification of the convert… the prohibition on a female convert marrying a kohen ought indeed to be connected to lineage, to a bodily defect and not a social disqualification. So on the face of it, it seems that this is because of lineage disqualification—meaning that yes, this does seem tied to intrinsic status rather than social attitude. But it turns out that here too it’s not so simple. And I’ll start maybe with Maimonides, in the laws of forbidden sexual relations. Look here: converts and freed slaves who married each other—this is from an article of mine—and had a daughter, even after several generations, since no seed of Israel became mixed among them, that daughter is forbidden to a kohen. “Married each other” here means a male convert and a female convert, okay? Or a convert with a freed slave woman, or something of that kind. So since there was no Jewish-born seed mixed in here, it’s all seed of converts, that daughter is forbidden to a kohen. But already here there is a surprise. And if she married, she does not leave him, since her conception and birth were in holiness. Meaning, a female convert herself who marries a kohen—if she married, she must leave. But the daughter of a female convert and a convert, it is forbidden for her to marry a kohen, yet there if she already married, she does not leave. That already raises a question mark. There is a prohibition—so why, if she married, does she not leave? What do you mean? There is a prohibition here. And I’m speaking, say, of a divorcée and a kohen; I’m not talking about kiddushin that don’t take effect, as in forbidden sexual unions. Where kiddushin don’t take effect, of course she doesn’t need to leave—the kiddushin never took effect. I’m talking about kiddushin effected through a prohibition that nevertheless do take effect, as in prohibitions carrying only a negative commandment, like a kohen and a divorcée. In such a situation, the kiddushin certainly take effect, but obviously he still has to send such a woman away, because he is forbidden to remain married to her. So once they say it is forbidden, obviously even after the fact, once it has already happened, they need to separate. Here, in the case of the daughter of converts, there is a prohibition, but if she married, she does not leave. That itself already tells you there is something tentative about this prohibition—some kind of prohibition, I don’t know, not the standard prohibition like a divorcée and a kohen, for example. Since her conception and birth were in holiness. But if a convert or a freed slave married a Jewish-born woman—that is, what you’d call a mixed marriage—or a Jew married a female convert or a freed slave woman, his daughter is fit for the priesthood from the outset. Here it’s no longer that she is forbidden but if she married she need not leave; from the outset she can marry. Now again I return to the same question I asked in the earlier case about appointment to authority. If I look now at a convert who married a Jewish-born woman—a convert who married a Jewish-born woman—his daughter follows the male, right? If there is no transgression, everything follows the male; if there is a transgression, it follows the blemished one. So in that case, the daughter of a convert and a Jewish-born woman, in her lineage, is a convert. Now if she is a convert, then why is she permitted to marry a kohen from the outset? If she has a Jewish-born mother, it is permitted. Fine, in the case of a female convert and a Jewish man, the daughter is considered Jewish because it follows the male. But in the case of a convert and a Jewish-born woman, here the male is the convert, so the daughter too, in terms of lineage, is a convert. So how can we understand that she is permitted to a kohen? Again, this is another hint that apparently here too we are not dealing with a lineage defect, and maybe that also explains the first part of Maimonides, where he says that if she married she does not leave—even the daughter of two converts, if she married she does not leave. In other words, once again we see there is some sort of prohibition here that is not essential. Ideally, don’t do it; if you did it, it’s not such a big deal. What is the meaning of this? So actually…
[Speaker C] Rabbi, Rabbi, couldn’t one maybe explain that priesthood is basically a role? It’s an office, and a high office, with lineage and lots of privileges, so to speak. So joining that guild is also a kind of authority, even apart from the simple lineage sense of the word. However we explain what we said about authority, when you join the guild of priesthood you are joining some kind of appointment, and the reasons the Rabbi gave—or that I suggested—could also apply there.
[Rabbi Michael Abraham] Very good, that’s exactly where I’m headed. That’s what I’m trying to show here. I’m trying to show that on the face of it, the prohibition on marrying into the priesthood doesn’t look like appointment to authority, because here it seems simply to be a lineage defect. But from the two laws I brought here, it would seem not so. Because if it were a lineage defect, then if she married she would have to leave, and the daughter of a convert and a Jewish-born woman should not be permitted to a kohen. From the fact that they do permit it, at least after the fact and even from the outset, it really does seem that this is not a lineage defect. Rather here too there is something—let’s call it—not an issue in the object itself but in the person; there is some hint of that here.
[Speaker E] Again—
[Speaker D] once—
[Rabbi Michael Abraham] So there is some kind of disqualification here that is not, not a lineage defect. The truth is that the Talmud in Kiddushin 77 says there—at least according to Rabbi Yose—that the prohibition regarding the daughter of converts is only an embellishment practiced by the kohanim; it is not a real prohibition. Now what does that mean, “an embellishment practiced by the kohanim”? If it’s just an embellishment practiced by the kohanim, then there isn’t really any prohibition here. But if so, how can that be? After all, in her lineage, the daughter of converts is a convert. So what do you mean, an embellishment? If a female convert is forbidden to a kohen, then she is forbidden. Already there you see that apparently there is no truly essential prohibition here. In other words, the definitions of convert regarding marriage disqualifications, exactly like the disqualifications regarding appointment, are social definitions and not lineage in the essentialist sense. What about the permission for a convert with a mamzeret? That is even more interesting—or a female convert with a mamzer. There Maimonides writes as follows, again in the laws of forbidden sexual relations: a mamzer is permitted to marry a female convert, and likewise a mamzeret is permitted to a convert. And the children from both are mamzerim, because the child follows the blemished one, as it says “the community of the Lord,” and the community of converts is not called the community of the Lord. This is itself an interesting phenomenon. It’s permitted; there is no prohibition. So if there is no prohibition, then it should follow the male, not the blemished one. In other words, there is something here that says: okay, this is different; this is an exceptional case. The medieval authorities, the legal decisors, the commentators on Maimonides and the decisors discuss why it is exceptional, but already here you see that there is something unusual. But in halakhah 9 there Maimonides writes as follows: if a convert married a Jewish-born woman, or a Jew married a female convert, the child is a Jew in every respect and is forbidden to a mamzeret. Again, for the third time we discover this: if there is a mixed marriage, if the mother or father is Jewish by birth and not a convert, then the prohibition regarding a mamzer or mamzeret returns. Meaning, the permission regarding a mamzer or mamzeret is cancelled; he goes back to being a Jew in every respect. And once again that means that even in the case of mamzerut, the prohibition related to mamzerut is also apparently not some kind of lineage prohibition. Look at Ran, for example. Ran asks here: “And I do not know from where he derives this.” He is challenging Maimonides, yes: “And I do not know from where he derives this. For although if a non-Jew had relations with a daughter of Israel, the child is a complete Jew and is forbidden to a mamzer, what is the reason there? Because it is impossible for him to trace his lineage after his father, since ‘according to their families, according to their fathers’ houses’ is written only regarding Israel.” Meaning, if a non-Jew has relations with a Jewish woman, the child is Jewish, and their son is forbidden to a mamzeret because he is Jewish in every respect. Now that is the son of a non-Jew. So ostensibly that should be worse than the son of a convert. But no, says Ran, it’s not worse. Because once a non-Jew had relations with a Jewish woman, then the child is only her child. “According to their fathers’ houses” was not said about non-Jews. So he is completely Jewish. And if he is completely Jewish, he is forbidden to a mamzeret. But the child of converts—not a non-Jew, but a convert—who had relations with a Jewish-born woman, since his father is not a complete Israelite, why should he not follow his father and be judged as a convert who is permitted to a mamzer? And after all there is kiddushin here and no transgression, and the child should follow the male—and this requires investigation. He doesn’t understand why Maimonides says, in this matter too, of prohibition or permission regarding a mamzer or mamzeret, that if there is a father or mother from Israel then this permission is cancelled. They revert to being Jews. Fine, there are strained answers, also in Beit Shmuel here, as I brought you, but never mind. The difficulty is a real one, and once again it tells us—serves as some kind of indication—that apparently the permission regarding a mamzer also is not a permission that comes from lineage. It is not an essential matter. And here I want to suggest a proposal that is really somewhat far-reaching, but broader. A broader proposal to understand the whole issue of mamzerut, or of the prohibition involving a mamzer.
[Speaker C] Because maybe with mamzerut too the defect is not essential and not genetic, but rather some kind of… there was a reason to prohibit the mamzer in order to preserve family purity. But there is also this great injustice being done here, and the Torah placed the key here too for dismantling this—
[Rabbi Michael Abraham] this minefield, and Maimonides too.
[Speaker C] So basically even the prohibition of mamzer—the pure case, right, the straightforward Torah prohibition—is also not a real genetic problem or some racial issue. There is a social reason here, and social reasons that are kind of the opposite.
[Rabbi Michael Abraham] Wait, that’s not a prohibition, that’s a permission. You’re talking about the permission regarding a mamzer.
[Speaker C] The prohibition regarding a mamzer—the prohibition against marrying a mamzer who is a complete, pure Jew—is not because… right, because I’m saying there is also a desire here to be lenient with mamzerim, and in some way to plant in our consciousness that there is no real problem with a mamzer. After all, a convert can marry one even though he is a complete Jew.
[Rabbi Michael Abraham] Wait, wait, what? If you want to be lenient with mamzerim, fine, then tell him to marry somebody six feet tall and up. Why a convert? What does a convert have to do with it?
[Speaker C] You can think of explanations. It’s also a persecuted and suffering group, I don’t know, the Rabbi knows.
[Rabbi Michael Abraham] Even worse! If you want to be lenient with mamzerim, you push them into a group that is persecuted anyway? The opposite—put them in the elite group.
[Speaker C] It starts that way, and in the end you get to a situation like today where for some reason there are almost no mamzerim.
[Rabbi Michael Abraham] No, those explanations don’t convince me. But the point really is that unlike the previous two cases—say, the disqualifications for appointment—I think the reasoning there is pretty strong, and it also has proofs, as we saw earlier. Regarding the prohibition for a kohen, that too can be explained. The prohibition for a kohen—like you said before—marrying into the priesthood is some kind of high status. We want to preserve the status of the kohen, “and you shall sanctify him”; there are certain halakhic obligations to preserve and not damage the status of the kohen. Therefore we also are not willing for a kohen to marry someone who is considered blemished in the eyes of the public, because that will lower his status, damage the kohen’s status.
[Speaker C] The Rabbi remembers that about that too, I said that in my opinion it’s simply to avoid making people hate the convert. Once you place him as a man of authority, then we hate people in authority, and then we’ll mark him, label him as a convert, as belonging to that group.
[Rabbi Michael Abraham] I’m not going into alternative explanations right now. It’s possible, fine, could be. But in any case, those explanations, which aren’t essentialist, can also be understood regarding the marriage of a female convert to a kohen. Since there too we’re really talking about granting a certain status to a convert that could detract from the kohen, and therefore they tell him not to marry. And if that’s so, then a convert who is already considered to have the status of a regular Jew, because his parents already married a Jewish man or a Jewish woman, then maybe he can marry into the priesthood. That’s already a bigger novelty than appointment to office, but you can hear it. But with a mamzer, what does that have to do with anything? You permit a convert to marry a mamzer, so that means there’s no issue here of trying to ensure that the convert’s status remains low? To specifically harm the convert? That sounds strange. So how can we explain this matter of permitting a convert to marry a female mamzer, or a female convert to a mamzer, also in a non-essentialist sense, but rather in terms of social attitude or something more subjective? So here I want to make a point. I’m unsure about it, but I think it’s not far-fetched. I once heard, when I was in the yeshiva in Yeruham, Rabbi Tzvi Schechter came there—he’s a rosh yeshiva at Yeshiva University—and he gave a lecture there, and in the lecture he mentioned an article by Rabbi Elchanan Wasserman in Merbitei Torah, the journal that Rabbi Elchanan Wasserman edited. I haven’t found that article since, but I remember that he quoted it, and I want to build on the principle written there in order to explain our topic. The rule that appears in the Talmud and is also ruled as Jewish law by the decisors is that a doubtful mamzer is not a mamzer. Right? Meaning, if there is someone I don’t know whether he is a mamzer or not—he is doubtful in my eyes—then by strict law it is permitted to marry him. Only a definite mamzer is forbidden to marry. “A definite mamzer the Merciful One said, and not a doubtful mamzer”—that is how the Talmud expounds it. And the fact that they forbid marrying a doubtful mamzer is only an added stringency they made in matters of lineage; it’s only a rabbinic prohibition. But by strict law, a doubtful mamzer is fit; he is not a mamzer. Now in truth, that exposition in the Talmud is really a strange exposition. What does it mean, “A definite mamzer the Merciful One said, and not a doubtful mamzer”? You could say that about every Jewish legal category—that the category applies only in certainty, definitely, and not in doubt. What is special about mamzer? There is no hint in the verse that tells me that the term appearing there is a term of certainty and not of doubt. So this exposition is a strange and difficult one. It’s a strange exposition, and as is known, around this exposition there is also the discussion of the dispute between Maimonides and Rashba and other medieval authorities (Rishonim), Ran, regarding whether a Torah-level doubt is treated stringently or leniently. A Torah-level doubt is treated stringently; a rabbinic-level doubt is treated leniently. But the rule that a Torah-level doubt is treated stringently is itself, according to Maimonides, only a rabbinic rule, and according to Rashba and Ran it is a Torah-level rule. Now one of the difficulties raised against Maimonides comes from this Talmudic passage, because the Talmud says, “A definite mamzer the Merciful One said, and not a doubtful mamzer.” You see that a special exposition is needed in order to permit the doubtful case, so it sounds as though without that exposition doubt would have been forbidden by Torah law. So this is difficult for Maimonides, because you see here that doubtful cases are forbidden by Torah law; you need a verse to permit the prohibition in a doubtful case. But there are already famous remarks—Maimonides has a responsum in which not only does he notice this difficulty, he actually brings this exposition as a source for his own approach. Not only is it not difficult for him, it is his source. He says: why? The Talmud said, “A definite mamzer the Merciful One said, and not a doubtful mamzer,” and from here this is a paradigm—here we learn the principle that Torah-level doubts are treated leniently; only rabbinically did they say to be stringent, but by strict Torah law in doubtful cases one may be lenient. And if that’s so, then the exposition itself is no longer difficult: “A definite mamzer the Merciful One said, and not a doubtful mamzer” is true of all terms in the Torah. All the Torah’s categories apply only in certainty and not in doubt; in doubt one can be lenient. And that is basically the claim. But for our purposes I want to continue and say something further, and here I come to the article by Rabbi Elchanan Wasserman. Ran at the end of tractate Kiddushin writes a very, very far-reaching novelty. There are quite a few laws where in a doubtful case we can be lenient even though they are Torah laws. We can be lenient. And the Talmud refers to several things: a doubtful slave is treated leniently, a doubtful firstborn is treated leniently, tithes are treated leniently, doubtful orlah outside the Land of Israel, doubtful impurity in the public domain—there is a whole collection of doubtful cases where the rule is that one may be lenient even though these are Torah laws. One of those doubtful cases is doubtful orlah outside the Land of Israel. Doubtful orlah in the Land of Israel is forbidden; orlah also applies outside the Land of Israel by a law given to Moses at Sinai, and doubtful orlah outside the Land of Israel is permitted. The law was not said about the doubtful case but only about the definite one. Now Ran says an astonishing novelty. The Shema‘ateta, as is known, discusses this at length in the first section. He says: suppose I’m outside the Land of Israel and I have a fruit that is definitely orlah. Now someone comes to visit me and I serve him that fruit and say, “Enjoy your meal.” I’m allowed to do that, says Ran. Why? Because the person eating the fruit is in a state of doubt, and therefore he is not committing a prohibition, because doubtful orlah outside the Land of Israel is permitted; and therefore I too am not violating the prohibition of causing someone to stumble in sin. So I am allowed to take definite orlah outside the Land of Israel and serve it to someone who doesn’t know, and nothing problematic has happened. He is allowed to eat it; I have not violated the prohibition of causing sin; everything is fine. That is Ran’s claim. You need to understand that the simple perception is not like that. Meaning, even if I say that doubtful orlah outside the Land of Israel is permitted, that does not mean I’m allowed to cause someone to stumble on definite orlah. It’s true that for him it is doubtful, but for me it is not doubtful. I know that it is definitely orlah, and definite orlah is forbidden. So I am causing him to sin. The fact that he doesn’t know, and therefore for him it would be permitted, fine—but I am in effect causing him to commit a prohibition. Ran goes one step further than the statement that doubtful orlah outside the Land of Israel is permitted. He says it is even permitted to cause someone to eat definite orlah, by the same principle—an extension of that same principle. Now Rabbi Elchanan Wasserman in that obscure article claims that this would be the law in all areas where the doubtful case is treated leniently. In other words, if I know a person with certainty—I know he is a full-fledged mamzer with certainty, all right? Better yet, I’m his father, I know it not second-hand but with certainty. Now I arrange a match between him and a proper, modest Jewish woman who knows nothing about him; she is sure he is a fit Jew. That is permitted, says Rabbi Elchanan Wasserman, for the same reason that it is permitted to give someone doubtful orlah outside the Land of Israel—in fact to give definite orlah to someone who doesn’t know it is orlah. For the same reason, or by the same mechanism, it is permitted to arrange a marriage between a definite mamzer and a Jewish woman, because she doesn’t know he’s a mamzer, so from her perspective it is doubtful, and a doubtful mamzer is permitted. And therefore I am allowed to arrange for her to marry this definite mamzer. All right? Now again, rabbinically they still forbade even a doubtful mamzer and so on. But I’m saying, by strict Torah law, I would have been allowed to make the match and dance at the wedding and sincerely wish them mazal tov. And the same goes for all prohibitions where the doubtful case is treated leniently. That is Rabbi Elchanan Wasserman’s claim. What is the proof? There is…
[Speaker F] Right. No, I don’t understand the reason. What? I don’t understand what permits the person who knows that it’s definite.
[Rabbi Michael Abraham] The woman being matched doesn’t know that he’s a mamzer. What difference does that make? Wait—if she doesn’t know he’s a mamzer, then for her it’s doubtful, right? She can’t know he’s a mamzer; she doesn’t know it. If she doesn’t know it, then she is not violating any prohibition by marrying him, because a doubtful mamzer is permitted. So what if I know? So what if I know? The prohibition is on her; I didn’t marry him. She married him, and she doesn’t know.
[Speaker F] But he is creating the situation. He knows he is creating—granted—a state of doubt, but from his standpoint he is basically deceiving, because he knows it is definite. What is this story? I don’t get it. He knows it is definite, meaning objectively…
[Rabbi Michael Abraham] Again, I’ll sharpen it.
[Speaker F] Because objectively that’s the reality—he is now dictating a false reality.
[Rabbi Michael Abraham] So what? Fine, maybe he violates some prohibition of falsehood. But is there here a prohibition of marriage with a female mamzer?
[Speaker F] But I’m going one step before that. You say he is permitted to do this; I’m talking about that permission to do it.
[Rabbi Michael Abraham] I don’t understand the permission? What is the problem? He’s not violating… what prohibition is there here? “Do not place a stumbling block before the blind”?
[Speaker F] No. There is a prohibition of…
[Rabbi Michael Abraham] “Do not place a stumbling block before the blind” means causing someone to sin. He didn’t cause anyone to sin.
[Speaker F] There is a prohibition of deception in reality. He’s falsifying reality. Where is it written…? He knows the reality is that he is definitely a mamzer. What?
[Rabbi Michael Abraham] Where is it written that it is forbidden to deceive—what prohibition is that?
[Speaker F] Deceive? The Torah is full, full of things on the subject, that it is forbidden to deceive and lie.
[Rabbi Michael Abraham] Simply speaking, there is no prohibition on lying. There is a prohibition only on lying in religious court. Now Rabbeinu Yonah in Sha‘arei Teshuvah argues that there is, and he counts all kinds of things, but straightforwardly, when you read the Talmudic passages and the sources plainly, there is no prohibition on lying outside a religious court.
[Speaker F] Fine, I…
[Speaker C] Didn’t the Holy One, blessed be He, Himself alter the truth—“and I have become old”?
[Rabbi Michael Abraham] Fine, that’s something else, but one may alter the truth for the sake of peace and things like that.
[Speaker F] But no, no, this direction is not good.
[Rabbi Michael Abraham] What is not good?
[Speaker F] It’s not good. What… lying is permitted, only in court it’s forbidden. That’s not… you can’t create a life like that.
[Rabbi Michael Abraham] You’re mixing planes. It may be that a person is doing something immoral because he is lying. On the other hand, you know, he is doing something very moral because this couple fell in love, and if he tells them the truth they won’t be able to marry, and this way he enables them to marry. So there is also a positive side to it. So on the moral level one can argue, but on the halakhic level there is no prohibition here. And even if you say there is a halakhic prohibition here, the prohibition would be a prohibition of falsehood, but there is no prohibition here of forbidden marriage.
[Speaker F] I’m asking: if the person knows this is definitely a mamzer, okay? The objective reality is that this is definitely a mamzer. In such a case, shouldn’t we say that we are effectively witnesses that this is the situation? I don’t care now whether she is in doubt or not. The objective reality now is that he is a mamzer. Her subjective reality loses relevance now.
[Rabbi Michael Abraham] I’ll explain it. Look, that is the simple understanding were it not for Ran. But I’ll explain the logic behind Ran’s words, and in my opinion it is sound logic. After all, the whole state of doubt is by definition a subjective state. What is doubt? Doubt is lack of knowledge, right? If I have a piece of meat in front of me and there is doubt whether it is pork or kosher meat—the piece… when I say this piece is doubtful, what does that mean? The piece itself is not doubtful in any way. There is nothing in the piece itself that generates doubt. The doubt is because of my lack of information, right? Meaning, the concept of doubt is by definition a subjective concept. It speaks about the person, not the thing. Now if that is so—yes, there are doubts that are in the thing itself, we once talked about this, Rabbi Shimon Shkop discusses it. For example, I go to a father and give him a coin and say, “One of your two daughters is betrothed to me,” and I don’t define which one. That is a doubt that is not a lack of information on my part; it is a doubt in reality itself—even the Holy One, blessed be He, does not know which one is betrothed to me. But if I send an agent to betroth one of two women, he chose one and then died, and now I don’t know which one he betrothed—that is a doubt not in reality itself. In reality, one of them was betrothed. I just don’t know which one. The Holy One, blessed be He, for example, does know. And here, doubts in Jewish law generally—doubts in reality in general, apart from quantum theory—all doubts are doubts in the person. They are doubts as a state of the individual. Doubt is not a state in reality itself; doubt is always a person’s lack of information about reality. That is the definition of doubt. In your question, you treated the concept of a doubtful mamzer as if it were a different type of person. There is a person who is definitely a mamzer and a person who is a doubtful mamzer. Then you say: but wait, I know he is a person of the first type, not the second type, because he is definitely a mamzer. So how can I arrange for him to marry someone who is forbidden to marry him? But that is a mistake, because a doubtful mamzer is not a different kind of person; it is a different kind of situation for me, because I don’t have the information about this person. The person himself either is a mamzer or is not a mamzer. There is no state of doubt in the person himself. The doubt is always my lack of information about who this person is. Now if you understand it that way, then Ran’s words are almost demanded, or Rabbi Elchanan Wasserman’s extension. Why? Because when I arrange for this definite mamzer to marry a woman, from her standpoint this mamzer is in fact a doubtful mamzer. True, I know he is definitely a mamzer, but his definition as a doubtful mamzer is not a definition of his body, of what he is—whether he belongs to the category “doubtful mamzer” or “definite mamzer.” He himself obviously either is a mamzer or is not a mamzer; there is no intermediate status. The definition of doubt is always in the question of the person perceiving the reality. That person lacks information, and therefore is in doubt. Now his prospective spouse does not have the information that this man is a mamzer. So from her perspective there is not even doubt—he is basically not a mamzer at all. So she truly is not violating any prohibition; I haven’t created any real problem here. She doesn’t violate a prohibition because she is in the subjective state of doubt; she does not know, she lacks that information. The fact that I know he is a mamzer—she doesn’t know that. Let’s just say that in reality he is a mamzer and nobody knows, all right? Someone comes before me; we have a doubt whether he is a mamzer or not. The rule is that one may marry him, right? Nobody knows. But in reality itself there is a fifty percent chance he is definitely a mamzer. The Holy One, blessed be He, knows what is going on there. So it may be that he is definitely a mamzer and may be that he is not. How can it be permitted to marry such a person? That’s the point. The point is that when I permit a doubtful mamzer, that permission is based on my subjective state, not on the state of the person himself. To say that he is a doubtful mamzer is not a statement about him; it is a statement about me, that I am in doubt, that I don’t know whether he is a mamzer or not. A doubtful mamzer is not a category that exists in the person.
[Speaker C] Rabbi, doesn’t that prove that there is no inherent prohibition in a mamzer at all? After all, if it were something poisonous—if as a doctor I gave someone something poisonous—
[Rabbi Michael Abraham] Then if it’s doubtful… you always say my next sentence before I do, I’m already getting there, that’s exactly where I’m heading. So the claim is basically this, and that’s how Rabbi Tzvi Schechter explained it there in the following way. All the prohibitions with regard to which we hold that their doubtful case is treated leniently—Torah prohibitions whose doubtful cases are treated leniently—what characterizes them? Why in fact are doubtful cases treated leniently there and not in all other cases? Because in all those prohibitions, the prohibition is subjective, even in the definite case, not only in the doubtful case. Meaning, when I come to marry a mamzer, the prohibition is not because he is a mamzer; the prohibition is because I know he is a mamzer. That is in the case of a definite mamzer. Now if he is a doubtful mamzer, then I don’t know. If I don’t know, there is no prohibition. Meaning, everything starts from the definition of the definite prohibition, not from the definition of the doubtful prohibition. All the prohibitions in which in a doubtful case we go leniently are prohibitions that are special in their definite form. Meaning, when they are definite, they are defined differently from ordinary Torah prohibitions. The ordinary prohibition—it is forbidden to eat pork not because I know it is pork. If I don’t know, I still eat it, but then I transgressed under duress. But clearly I transgressed, because the question whether it is pork or not pork is a question in reality. If it is pork, then it is pork; it doesn’t matter whether I know it or not. It matters regarding how blameworthy I am, but it does not matter regarding the very existence of the prohibition. I definitely transgressed; afterward we can discuss whether I was culpable. Okay? Those are basically the ordinary Torah prohibitions. But mamzer, firstborn, tithes, and all these doubtful cases where we go leniently, orlah outside the Land of Israel and impurity in the public domain and the like—all these prohibitions where we go leniently are prohibitions founded on my knowledge of reality, not on reality itself being forbidden. What is forbidden is for me to experience the reality—to make use of that reality—but the prohibition is on the conscious experience of that use, not on the use itself. And therefore, if the conscious experience of the reality is absent, then there is no prohibition either. When I eat orlah outside the Land of Israel, the prohibition is on orlah outside the Land of Israel. The mere eating of the orlah is not the prohibition; the prohibition is the experience that I understand that I am now eating orlah—that is the prohibition. And therefore if that experience is absent because I don’t know I’m eating orlah, then it is permitted, then there is no prohibition. Again, not that I am exempt because I was under duress. No—there is no prohibition; there is no need to exempt me. There is no prohibition. Meaning, everywhere else if I don’t know then I am under duress or act inadvertently. Here, if I don’t know, there is no prohibition at all—not that I am under duress. The knowledge defines the prohibition; it does not exempt me, it does not exempt me from punishment, right? According to Rabbi Elchanan, there is no category of inadvertence in these prohibitions, exactly.
[Speaker F] If afterward they come and tell him, after he got married, then nothing happened.
[Rabbi Michael Abraham] Nothing happened. That’s exactly the difference. In regular doubtful prohibitions where I have to be stringent, if afterward they come and tell me that I transgressed, then obviously I transgressed—I need to repent, whatever; there are consequences. Sometimes I need to bring an offering; if it was a provisional guilt-offering, it becomes a sin-offering. But here, in this case, even if they reveal it to him afterward, after the person already ate the forbidden thing, you can tell him what he ate—it changes nothing. In marriage don’t tell him, because then he’ll have to separate, if it’s a female mamzer. But in eating or something like that, something already over, you can tell him even afterward, because at the moment he ate he committed no prohibition at all, there is no problem. Therefore the claim, as Rabbi Schechter explains there—Rabbi Elchanan, and Ran—the final picture is this: all the prohibitions whose doubtful cases are treated leniently are really prohibitions whose definite cases are subjective prohibitions and not objective ones. The prohibition is not on the forbidden act but on the awareness accompanying the act. Once I am aware that this is the object with which I am making use, I have transgressed. The awareness defines the prohibition; it is not merely a condition for punishment, as usually happens, because otherwise I would just be acting inadvertently. No—here, if there is no awareness, it’s not that I acted inadvertently; I didn’t transgress at all. So that is the claim. Now if that really is so, then it means that the prohibition regarding mamzer—and by the way, there are some opinions, not many but there are opinions, that want to claim that all marital-status prohibitions, all lineage prohibitions, have doubtful cases treated leniently. All lineage prohibitions, not only in the case of mamzer. And that is very far-reaching, because it means that basically all lineage prohibitions are subjective. But there there is a dispute. In any case, regarding mamzer this is certain; it’s explicit in the Talmud. So the claim is that at least regarding mamzer the prohibition is a subjective prohibition. Meaning, if I know I am marrying a female mamzer, then I transgressed; if I don’t know, then nothing happened. Now this is not exactly the same as what I said in earlier moves, namely that there is some social relation or something like that. But it does mean that in the mamzer prohibition there is something with a subjective dimension. It is not the body of the mamzer that is forbidden in marriage; rather there is something in the experience accompanying this thing, in the knowledge accompanying this thing, that is the problematic element. So if that is so, again, we still need to think how exactly to define the explanation, but it becomes much easier to understand why this would be permitted for a convert, but for—not a doubtful convert—for a convert who is the child of a Jewish man and a female convert, or a Jewish woman and a male convert, it would be forbidden. Because in the end, this prohibition of marrying a female mamzer is a subjective prohibition, not an objective prohibition in the body of the convert or in the body of the mamzer. In that objective framework, it really wouldn’t be clear why there should be any distinction between a convert and the child of a Jewish woman and a convert, or the daughter of a Jewish woman and a convert. Okay? So here I haven’t completed the move, because I still—fine, it’s a subjective prohibition, but still, why is this subjective prohibition permitted to a convert, and why, if his mother is Jewish or his father is Jewish, do we go back and forbid it? I haven’t explained that; it’s not entirely clear to me how to define it. But the big difficulty that was there—the difficulty that says there is some object here that is itself an object of prohibition, that the mamzer is an object of prohibition—then how can you decide either that for a convert it is permitted or that for a convert it is forbidden? Why should it matter whether his mother is Jewish or his father is Jewish? So once the whole thing is subjective, then we need to understand: this experience is forbidden to a Jew, but for certain particular people—even if they have this experience—who says the problem is created? The whole matter is subjective, not objective. And therefore in this case, if you want, say that marrying a mamzer is some kind of, perhaps, decline or human inferiority or something like that. Or granting a certain legitimacy to forbidden acts or to a problematic status or something like that. Then I say: fine, but if you are a convert, then for you it is not considered degrading to marry a female mamzer. But if your mother is Jewish, then you are already in the social status of a Jew, so once again they demand of you not to compromise in matchmaking—not to marry someone who is in some low status, ostracized, or whatever it may be, with all the difficulty in relating to these unfortunate people, who did nothing, nothing wrong, as ostracized. But the fact is that Jewish law sees them that way, the mamzerim. So therefore I say, assuming that really is their definition, then it is easier to understand why it is permitted for a convert and why for a convert who is the child of a mixed couple it can nevertheless be forbidden. So that is a somewhat far-reaching suggestion, although I think in terms of logic it is definitely reasonable. And of course if we still need to add some further little argument, saying that even if it is subjective we still need to explain it—fine, it’s subjective, and there in the previous examples I explained it. I said that the social attitude will not allow the person to function as a holder of office. So there is logic in disqualifying him from positions of authority. But here, even if this thing is subjective, it still needs an explanation. Okay, it’s subjective, but why does the convert not have this subjective prohibition with a mamzer? Well, it may be, as I said earlier, that their statuses are equal or something like that, and therefore there is no—perhaps this does not amount to giving certain recognition to the couple that gave birth to the mamzer, giving legitimacy to that couple by marrying their son or daughter. And perhaps that is the issue. Therefore when a convert marries such a person, it does not so much give legitimacy. By the way, according to the formulation I just gave, the same practical difference would emerge as I said earlier. Suppose today, when in a proper society the status of converts is completely equal to that of Jews by birth—then it really could be that even a convert would be forbidden to marry a female mamzer. Not only the child of a convert and a Jewish woman, or vice versa, but even an actual convert, or the child of two converts, would be forbidden to marry a female mamzer. Why? Because if we relate to him as a Jew, then when he marries a female mamzer he once again gives recognition, a stamp of approval, legitimacy, to the parents who committed that act, by marrying their son or daughter. And if he has the same social status as a regular Jew—and that is the case in a proper society—then seemingly this should be forbidden for him too, just as it is for an ordinary Jew.
[Speaker G] May I ask? And why wouldn’t we say the same thing about a mamzer—that in a proper society his status also ought to look different?
[Rabbi Michael Abraham] Because I think that with a mamzer it’s not a question of a proper or improper society. A mamzer is the result of a forbidden act. A convert is the result of an elevated act, worthy of appreciation—he converted from being a non-Jew, so why in the world would we impose sanctions on him? So I say, fine, maybe it’s really only a response to an improper social situation. But with a mamzer, the Torah itself says that because his parents committed a sin, did something that should not be done, the child becomes a mamzer. True, one can ask why the child bears the iniquity of his fathers or of his parents, but that question was valid then too, not only today. In that sense it has nothing to do with a proper or improper society. That’s the situation.
[Speaker G] According to this, is it permitted for the system to hide that someone is a mamzer so that he will be only a doubtful mamzer with respect to everyone else?
[Rabbi Michael Abraham] That’s the claim, yes. According to Rabbi Elchanan and Ran, yes, the answer is yes. Now again, if you ask me practically as Jewish law, I don’t know. Maybe yes, maybe no. Clearly, the overwhelming majority of halakhic decisors you ask will tell you it’s forbidden. But this is Ran’s novelty regarding doubtful orlah outside the Land of Israel, and Rabbi Elchanan Wasserman’s novelty extending it to all things whose doubtful cases are treated leniently. But not everyone accepts either of those two novelties—not Ran’s and not Rabbi Elchanan Wasserman’s extension. But the reasoning in itself is reasonable. I think it has room. Let’s say that if I were in a situation of severe distress, I would rely on it to permit. Okay, so that’s about that; with that I’ve finished the matter of the convert’s status. I just want to conclude perhaps with an aside: with mamzerim too, assimilation into the public also helps. Right? A family that has become assimilated remains assimilated. Meaning, once people no longer know. Even if he married converts, in the end the son is still a mamzer, because lineage follows the flawed side, we saw that. So in fact you can’t purify the seed of mamzerim; they remain mamzerim forever. Okay, there is one way to purify mamzerim—actually there are two ways. One way is simply once we lose track and no longer know that this person is a mamzer. But the Talmud says: a family that has become assimilated remains assimilated. Meaning, this is not just a law of doubt; once the family has become assimilated, it is permitted from the outset to marry into it. We don’t start searching and digging and seeing what to investigate and worrying perhaps there is doubtful mamzer status. No, there isn’t. Once the family has become assimilated, it is permitted. So again you see here, once more—and this is in the Talmud itself—you already see this conception in the Talmud too, that the prohibition concerning a mamzer is a prohibition on knowing that I am marrying a mamzer, not on the bare fact that I am marrying a mamzer. Because the proof is that if he became assimilated, he became assimilated. About pork nobody would say, “Since it became assimilated, it remains assimilated.” It may be that if I didn’t know it was pork and I ate it, then I was under duress or acting inadvertently, but nobody would say that I didn’t transgress. If the pork got mixed among other pieces—not in a mixture where it is nullified, but I lost track and now I no longer know which piece is the piece of pork—nobody would say, “Since it became assimilated, it remains assimilated,” okay? Rather, maybe if I ate and didn’t know, then I am inadvertent or under duress, so there are leniencies in terms of punishment. But the sin itself is a function of whether I ate pork or not. In the case of mamzer, you already see in the Talmud itself that once the family has become assimilated, that’s it. No need to start digging there and searching. Once—and I want to claim that even if there is information and I can search in lineage records and dig through archives and discover whether these people are mamzerim or not, my claim is that there is no need to do that. So “a family that has become assimilated” means the public no longer knows they are mamzerim. It is written down; it can be discovered; but among the public they no longer have some known status as mamzerim. Once that is so, they are not mamzerim. And this fits very well with the conception we saw earlier from Rabbi Elchanan: that if I do not know I am marrying a mamzer, then there is no prohibition. I also don’t need to check; if I don’t know, there is no prohibition. Okay? I just wanted to bring you a passage from Rabbi Moshe Feinstein in Igrot Moshe. Rabbi Moshe Feinstein discusses there—it would take a long time, and I’m barely going to have time so I won’t manage to begin the next part—in Igrot Moshe he discusses the appointment of a convert to be a mashgiach or a rosh yeshiva, as a Torah position. Okay? Seemingly it is forbidden. Seemingly it is forbidden because it is authority like any other authority. On the contrary, being a rabbi in Israel is an even more honored role than some ordinary water-distributor or something like that. Certainly one must honor him and so on; if he were a convert, they wouldn’t honor him. My whole approach basically says it is wrong to appoint him. And Rabbi Moshe struggles with this and says as follows: “And the case that your honored Torah queried me about was regarding appointing a convert to teach, or to deliver a lecture, or to be a mashgiach, or even a rosh yeshiva; and your honored Torah wanted to prove from Shemaya and Avtalyon”—for the Talmud in Gittin, in Sanhedrin, says: “The descendants of Sennacherib’s descendants taught Torah publicly. Who were they? Shemaya and Avtalyon.” So you see that descendants of converts can be roshei yeshiva. Not only roshei yeshiva—Shemaya and Avtalyon were one of the pairs, and they were the Nasi of the Sanhedrin and the head of the court, which is the authority above all authorities, not just a rosh yeshiva like today, okay? “Now aside from the fact that their lineage is not entirely clear to us, whether their mother was not from Israel”—perhaps they were descendants of Sennacherib but their mother was Jewish, and we saw that if the mother is Jewish there is no problem appointing them to positions of authority, and therefore there is no proof from Shemaya and Avtalyon. And therefore you cannot prove from there that if I have a convert who is the son of a male convert and a female convert, I can appoint him as a rabbi or rosh yeshiva or something like that, because Shemaya and Avtalyon may have had a Jewish mother. “It is not relevant legally to prove from them, for they were the very greatest of their generation and part of the chain of tradition, and who knows whether this was not a temporary emergency ruling, similar to Deborah the prophetess who judged, even though women are disqualified from judging. And see Tosafot in Bava Kamma, who says that Deborah was accepted by them because of the Divine Presence,” and so on, “and Tosafot in Yevamot.” What does “temporary emergency ruling” mean? Was there a prophet who announced—God said…? What does “temporary emergency ruling” mean? After all there was no longer prophecy then; this was already the Second Temple period, the end of the period of the pairs. An emergency ruling by the sages? Meaning, an emergency ruling against Torah law to appoint them? Why? On what basis? How can you actively violate a Torah prohibition? I don’t understand this concept here of an emergency ruling. Usually “temporary emergency ruling” is one of those explanations for strange things we find in Scripture, or in the Prophets: you say, it was a temporary emergency ruling, God told the prophet there, a special case. Jacob our forefather married two sisters. One of Nachmanides’ explanations there is that it was a temporary emergency ruling by divine instruction, fine. But in a place where there is no prophecy and nothing, and the sages decided to appoint Shemaya and Avtalyon as head of the court and Nasi—on what basis? This is a Torah prohibition. According to my approach, it’s simple. If indeed these were the great sages of the generation—and Shemaya and Avtalyon were, the Talmud says—they were the great sages of the generation. Then clearly there is no concern that if they appoint them, they won’t be able to function as authorities, that they won’t have authority. There is no one who doesn’t recognize their greatness; they are the great sages of the generation. Therefore there is no impediment to appointing them. By the way, a small comment—now I remember that Rabbi Akiva was the son of converts, and he was not in the Sanhedrin. Rabbi Akiva was not in the Sanhedrin; after all the Talmud says that Rabbi Akiva intercalated years outside the Land of Israel and he was not in the Sanhedrin, at the end of Makkot there, at the end of the first chapter. Rabbi Akiva and Rabbi Tarfon say, “If we had been in the Sanhedrin, no person would ever have been executed.” Meaning, they were not in the Sanhedrin. Rabbi Akiva was not in the Sanhedrin even though he was the greatest sage of the generation, because he was the son of converts. True, one of his parents apparently was from Israel, so why couldn’t he be in the Sanhedrin? I don’t know. In any case, Rabbi Akiva was not. Now Rabbi Akiva too was the greatest sage of the generation. According to my approach, I don’t see why there would have been any impediment to appointing him there. It may be that Rabbi Akiva also had this background of having been a shepherd, and his biography itself was somewhat problematic, and therefore there was still concern that they would not accept his authority—I don’t know exactly. But with regard to Shemaya and Avtalyon, who were descendants of Sennacherib, but they themselves were raised from the outset as Jews and Torah scholars—there, since there was no concern that people would relate to them improperly, they could be appointed to positions of authority. Then there is no need to get squeezed into “temporary emergency ruling” or anything of the sort. In a place where there is no concern that people will fail to relate to them properly, there is no prohibition on appointing them. Even in the improper society of that time—but at that level of people, even in an improper society no one would cast doubt on them. All right? Maybe—
[Speaker G] Excuse me, maybe in addition to what you’re saying, in the Talmud in Berakhot too, where it says they didn’t appoint Rabbi Akiva in place of Rabban Gamliel in that whole Rabban Gamliel story and so on, I think it says there that he had no ancestral merit; it doesn’t say that he was the son of converts or anything like that.
[Rabbi Michael Abraham] So maybe—sorry—according to what you’re saying, yes, that really is just a clean expression to say he was the son of converts.
[Speaker G] No.
[Rabbi Michael Abraham] You don’t remind a person of his origins, so you say he has no ancestral merit.
[Speaker G] Or the Talmud agrees with you. Could be, could be.
[Rabbi Michael Abraham] In any case, that’s regarding Shemaya and Avtalyon. And now he says: “But in practice it must be known that the commandment, ‘You shall love the convert,’ obligates us to draw them near and to be lenient in all such matters. Therefore, after much consideration, it appears that we should not regard these positions in our time as a matter of actual authority, for the principal role of a yeshiva is to teach students when they wish. And whatever power the administrators and roshei yeshiva have over students—to expel them, or not to accept them in the first place, and the like—that is only like the authority of a homeowner over his workers, which is not a true appointment to public authority at all.” Right? No one would say that you can’t work for a convert, that the convert can’t be the employer I work for, right? “Accordingly, these positions are merely the fulfilling of a role and a kind of occupation.” Of course that is very forced. Very forced. It’s no different from distributing water. Fine, part of your role includes authority; in water distribution too part of your role includes authority. It’s very hard to accept that. But according to what I’m saying now, you don’t need to get there. The claim is that if it really depends on people—if their attitude toward him really was like toward any ordinary Jew, and nobody would cast doubt on his authority and his rulings—then there is no problem at all appointing him. Incidentally, Rabbi Moshe writes there that “the commandment, ‘You shall love the convert,’ obligates us to draw them near and be lenient in all such matters.” Meaning, he feels the difficulty from which I launched this whole series of classes. The claim that on the one hand you want to draw converts near, and on the other hand there are laws there—how do those two things fit together? So Rabbi Moshe doesn’t resolve those two things, but he does say that this obligation to draw converts near means that if we have a doubt, if we have some option, a doubt in the law—whether yes, we can do something for a convert, or no, we cannot—then we should go leniently, not because of the laws of doubt, but because of the obligation to love the convert. The obligation to love the convert instructs us to choose the lenient option in halakhic ruling. So he does not go with the move I made, but he does feel the tension or difficulty between these two things: on the one hand “You shall love the convert,” the status of the convert as the status of a regular Jew, and one may not remind him of his ancestry, and he is like a newborn child, and so on; and on the other hand, there are discriminations. Now Rabbi Moshe has no resolution, and therefore we saw that he too gets pushed earlier into difficult answers. But he still says you have to understand that this tension has significance. So because of the obligation to love the convert, in every doubt we should go leniently on this issue. Where one can give him equal treatment, one should give him equal treatment because of “You shall love the convert,” not because of the laws of doubt. I claim that everywhere there is a proper community, what Rabbi Moshe says is also true—say, in a place where the community is not proper, but I still have a doubt whether this is authority or not authority, and therefore the question is whether I can appoint a convert or not—because of the commandment “You shall love the convert” I should appoint him. There Rabbi Moshe is right. I only claim that in a proper society you don’t even need to get there, because in a proper society they actually fulfill “You shall love the convert,” and once they fulfill “You shall love the convert,” then there is also no problem appointing him to positions of authority, as I said earlier. Maybe also letting him marry into the priesthood, or letting her marry a kohen, or maybe also forbidding him to a female mamzer. Okay, there’s no point in the minute that remains to begin the next topic, but I have finished this issue of converts. And if I sum up, then this topic really is an example—an example I gave more in order to provide a concrete example, to stop talking generally and abstractly and show concretely how one makes such a move of conservative midrash, with a conservative interpretation that grounds change in Jewish law, change even in Torah law. As I said at the beginning, this interpretation is one that can be proven from sources, so in that sense it is easier to rely on it. The fact is that it got through the Asif editorial system, as I told you in the previous lecture. Through Techumin maybe not—also not for that reason—but through Asif, yes. I’m not sure a move to validate women’s testimony would get through there, because there there is no proof for the conservative interpretation. Okay, I’ll stop here. Does anyone want to comment or ask? Fine. So have a good night, goodbye.
[Speaker E] Good night, thank you very much.