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Q&A: A Mamzer as Only a Cognitive Prohibition

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A Mamzer as Only a Cognitive Prohibition

Question

At the beginning of tractate Makkot, the Mishnah states that witnesses who testified that someone was the son of a divorced woman, and were then shown to be plotting witnesses, receive lashes. Tosafot asks why the Mishnah discusses the specific case of the son of a divorced woman rather than the more general case of a mamzer. Rabbi Akiva Eiger answers Tosafot’s question and says that if the Mishnah had spoken about a case of a mamzer, it would have been obvious that the witnesses do not themselves become mamzerim, and the Gemara would not have needed to derive this from “to him, but not to his offspring,” because that would be more than “as he plotted”: after all, they would have permitted the accused to marry mamzerim, whereas mamzer status would not be permitted to them, since they are not actually mamzerim. So their punishment would be greater than what they plotted for the accused.

Rabbi Chaim objects to Rabbi Akiva Eiger: what is different about a mamzer from the son of a divorced woman? After all, even in the case of the son of a divorced woman, you would not permit the witnesses to marry divorced women, whereas the accused would have been permitted to marry divorced women, so this too is more than “as he plotted.” In his usual fashion, Rabbi Chaim answers that there are two distinct laws regarding a mamzer, but I will not go into his answer.
In the Rabbi’s lecture series on conceptual analysis, the Rabbi mentioned Rabbi Elchanan, who argues that orlah outside the Land is only a cognitive prohibition, and there are explicit Talmudic passages where amoraim gave one another orlah produce outside the Land. Likewise regarding a mamzer, the Torah taught that in a case of doubt he is permitted, and the Rabbi wanted to suggest as a possibility that perhaps a mamzer too is only a cognitive prohibition. That is, the problem is that the holy and exalted people of Israel, in their consciousness, should not marry a mamzer.
According to this, if there are two people who think they are fully valid Jews, or two people who think they are mamzerim, even though only one of them is actually a mamzer, there is no problem.
Accordingly, Rabbi Akiva Eiger is resolved: the son of a divorced woman is an essential status in the object itself, and when witnesses testify about the accused that he is the son of a divorced woman, they have not permitted him to marry divorced women, because he himself is forbidden; they only misled the religious court into thinking he was permitted. Therefore they too are forbidden, and this is not more than “as he plotted.” But in the case of a mamzer, when they testified about him that he is a mamzer, they really did permit him to marry mamzerim, because in his own consciousness he is a mamzer. Whereas them, you would not permit to marry mamzerim, since they know that they are not really mamzerim, and so this is more than “as he plotted.” 

Answer

Very nice.

Discussion on Answer

Jonathan Sasson (2024-10-23)

The problem is that there is an explicit Talmudic passage, in an aggadic context, where Rabbi Yehuda publicized that someone was a mamzer, and the mamzer cried. Rabbi Yehuda said to him that he was giving him life, because if he had caused the Jewish people to stumble through mamzer status, he would have died.
True, this is aggadah, but it teaches that a mamzer is a prohibition in the object itself.

Michi (2024-10-23)

Not necessarily. It could be that there is no prohibition here, but it is still a case of causing others to stumble. Certainly if you assume that marrying a mamzer damages the soul or something like that.

Jonathan Sasson (2024-10-23)

With orlah outside the Land, the amoraim would feed it to one another. The whole reasoning I heard from you about a mamzer is to compare the two, since in both cases the Torah permitted a doubt. This is a source showing that they are not the same, because in the mamzer himself there is a disqualifying defect. Fine, but I can’t elaborate now.

mikyab123 (2024-10-23)

What does that prove? So the amoraim regarding orlah didn’t insist on anything beyond the halakhic prohibition, while with a mamzer they did. Are you comparing one person to another?! Besides, it could be that with a mamzer there is a defect and with orlah there isn’t. In doubtful orlah there is no rabbinic prohibition, while in doubtful mamzer status they were especially stringent about lineage.
Actually, now I understand that none of this is needed, because in doubtful mamzer status there is a rabbinic prohibition, and that’s why they said one should not cause stumbling in it.

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