(2016/5776)
It seems so unfair. Just because one’s parents engaged in illicit relations[1], why should the child suffer to the extent that he or she is forbidden to marry most members of the Jewish community? Even the Midrash presents the Mamzeir as legitimately complaining to Hashem about his status, which was brought about due to no sin of his own.
This striking Midrash (VaYikra Rabbah 32:8) sees a reference to the anguish of the Mamzeir in a Pasuk in Kohelet (4:1) which describes the tears of the oppressed. Interestingly, the Midrash sees the Sanhedrin as the ‘oppressors,’ because they follow the Torah’s commandment of “Lo Yavo Mamzeir BiKehal Hashem” (Devarim 23:3). The Midrash continues, ‘What is this person’s sin and why should his father’s actions concern him? And yet the Mamzeir has no one to comfort him.’ God proclaims: ‘I will comfort him. It is only in this world that he is disqualified. In the world of truth, it will be different. I am with him in his suffering here and I will be with him then as well.’”
Unlike other areas of Halachah, where the Gemara (Sanhedrin 71a) records opinions that were never followed in practice[2], it is clear that there were and continue to be people assigned the status of a Mamzeir. For example, the Mishnah (Yevamot 4:13) records Rabi Shimon ben Azai as testifying, “I discovered the genealogy lists (Megillat Yuchasin) of Jerusalem which record ‘so and so is a Mamzeir from a married woman [who had a child from another man].’”
This issue is not merely of theoretical concern to this author. As an active Dayan on the Beth Din of Elizabeth, I have dealt with a number of cases of potential Mamzeirut, working with Rav Gedalia Schwartz (Av Beit Din, chief justice, of the Beth Din of America and Chicago Rabbinical Council) for potential resolutions. Moreover, I have worked tirelessly (with Hashem’s help) and invested great efforts since 1992, as do many other Get administrators throughout the world, to avoid having Mamzeirut issues arise by facilitating Gittin for all Jewish couples who are divorcing.
In this chapter, we will first present the issue using the philosophical framework set forth by Rav Dr. Walter Wurzburger. Then we shall present samples of how Chazal dealt with Mamzeirut in practice and how Rav Moshe Feinstein, Rav Ovadia Yosef, Rav Gedalia Schwartz, Rav Shlomo Amar and Rav Asher Weiss have dealt with Mamzeirut challenges in practice.
Morality and Halachah – Rav Dr. Wurzberger’s Ethics of Responsibility
For anyone who is interested or troubled by the role of ethics in the Halachic process, Rav Wurzburger’s Ethics of Responsibility is a must read. This relatively brief, but very important, book is authored by a Rav who is eminently qualified to grapple with this awesome issue. Rav Wurzburger was a fine Talmid Chacham who was a close Talmid of Rav Soloveitchik and served as Rav of Congregation Shaaray Tefila in Lawrence, New York, for many years. He also earned a doctorate in philosophy at Harvard University, served as a professor of philosophy at Yeshiva University for decades, and for many years edited “Tradition,” the prestigious journal of Modern Orthodox thought. An insightful and thorough review of this work authored by Dr. David Shatz appears in Tradition (Spring 1996 pp. 74-95)[3].
Hashem Always Acts Morally
Rav Wurzburger echoes the celebrated contention associated with Plato that an action is not right because God commands it, but rather God commands it because it is right. This Platonic idea is undoubtedly congruent with Torah thought, as evidenced by the verse recited thrice daily by Jews, “Tzadik Hashem BeChol Derachav,” “Hashem is righteous in all His ways” (Tehillim 145:17). A Tzadik is one who chooses to act properly and fairly. Categorizing Hashem as a Tzadik means that He chooses to act only in fair ways. Hashem can act in any manner, but He chooses to act in the fairest way possible.
Devarim 32:4 proves Rav Wurzburger’s point as well: “HaTzur Tamim Pa’olo, Ki Chol Derachav Mishpat, Keil Emunah VeEin Avel, Tzadik VeYashar Hu,” The Rock, His work is perfect; for all His ways are justice; a God of faithfulness and without iniquity, just and right is He.” Finally, Avraham Avinu supports his argument to Hashem to spare Sedom, provided it contains righteous people, by asking “HaShofeit Kol HaAretz Lo Ya’aseh Mishpat,” “shall not the Judge of all the earth do justly” (BeReishit 18:25 ).
Our Obligation to Intuit the “Right and the Good in the Eyes of Hashem”
The central thesis of Ethics of Responsibility, though, is best expressed in a comment that Rav Wurzburger presents from Rav Soloveitchik: "Halachah is not a ceiling, but a floor" (p. 32). Rav Wurzburger writes:
Jewish piety involves more than meticulous adherence to the various rues and norms of religious law; it also demands the cultivation of an ethical personality. . . . We are commanded to engage in a never-ending quest for moral perfection, which transcends the requirements of an “ethics of obedience”.[The] halakhic system serves merely as the foundation of Jewish piety (page 3).
Rav Wurzburger marshals a wide variety of classic authorities who articulate the need for moral intuition, including Rav Nissim Gaon (in his introduction to the Talmud Bavli), Ramban (Devarim 6:18), Maggid Mishneh (commentary to Rambam’s Hilchot Shecheinim 14:5), Rav Yosef Albo (3:23), Maharal (Netivot Olam volume 2), Netziv (introduction to Sefer BeReishit and Shemot 19:6), Meshech Chochmah (Devarim 13:4) and Rav Kook (Orot HaKodesh 1:1-35).
Ramban (Devarim 6:18) most famously explains the Torah’s command “To do the right and the good in the eyes of Hashem”:
The intention of this verse is to teach that while we must keep God’s specific laws, we must also institute what is “the good and straight” in those areas for which God did not issue any specific rules. This is a great matter because it is impossible for the Torah to regulate every area of human behavior on both an individual level and a communal level. After the Torah presents a number of general ethical commands, such as not to gossip and not to take revenge, it commands us to do good and right in all areas.
Chazal assign great value to moral intuitions. The Gemara (Bava Metzia 30b) stresses the importance of a Beit Din ruling Lifnim MiShurat HaDin (beyond the letter of the law), suggesting that Jerusalem was destroyed because its courts ruled according only to strict justice and not Lifnim MiShurat HaDin[4]. In fact, the Gemara (Berachot 7a) states that God prays that He should act Lifnim MiShurat HaDin[5]. Similarly, the Mishnah (Shevi’it 10:9) lauds those who act beyond the letter of the law, as “Ruach Chachamim Nocheh Heimenu,” “the spirit of the rabbis is pleased with him.”
Conclusion
In next week’s issue, we will continue our discussion of inherent morality and set forth a framework of how to reconcile differences between our perceived notion of morality and the morality projected by the Torah, specifically in Mamzeirut cases.
[1] Halachah considers a child a Mamzeir only if he is the result of a relationship that is punishable by Kareit (Mishnah, Yevamot 4:13). An exception to this rule is a child born from a woman with the status of a Niddah. Unlike other law systems, LeHavdil, the Halachah does not consider a child born from an unmarried man and unmarried woman as illegitimate, so long as the relationship was not incestuous or adulterous. Questions arise regarding Mamzeirut in our times most frequently regarding children of a woman’s second marriage who remarried without obtaining a valid Get (Halachic divorce) from her previous husband.
[2] Such as Bein Soreir UMoreh and Ir HaNidachat.
[3] Dr. Shatz’ review is available at http://traditionarchive.org/news/originals/Volume%2030/No.%202/Beyond%20Obedience.pdf
[4] The Semak (Mitzvah 49) even includes the Mitzvah to act Lifnim MiShurat HaDin in his list of 613 Mitzvot.
[5] The Gemara (Bava Metzia 83a) records a classic application of Lifnim Mishurat HaDin:
Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah bar bar Channah. He seized their garments [as a form of payment], so they went and complained to Rav. Rav told [Rabbah bar bar Channah], “Return their garments.” [Rabbah] asked, “Is that the law?” Rav replied, “Yes, [as it says in Mishlei 2:20], ‘You shall walk in the way of good people.’” So [Rabbah] returned their garments. They further claimed [to Rav], “We are poor men, have worked all day, and are hungry. Are we to get nothing?” Rav ordered [Rabbah], “Go and pay them.” He asked, “Is that the law?” [Rav] responded, “Yes, [as the same verse continues], ‘And keep the path of the righteous.’”