Имян Отчествович Фамильев (nomen_nescio) wrote,
Имян Отчествович Фамильев
nomen_nescio

Мамзер

В последнее время многие уважаемые люди писали в ЖЖ о мамзерах и о связанных с ними проблемах. Высказывались разные позиции и приводились разные источники, но у всех этих записей есть одна общая черта - неизбежная неполнота. Каждый автор приводит те источники, которые милы его сердцу.
Давайте начнём заполнять эту неполноту. Вот статья "Mamzer" из Encyclopaedia Judaica (V.13, pp. 443-445).

MAMZER (Heb. מַמְזֵר ), usually translated as “bastard.”
Definition
“If she cannot contract a legally valid marriage to this man,
but can contract a legally valid marriage to others, her offspring
[from the former] is a mamzer. Such is the case when
a man has sexual relations with any of the ervot [“forbidden”;
see *Incest] in the Torah” (Kid. 3:12; cf. Yev. 4:13). Thus,
a mamzer is the issue of a couple whose sexual relationship is
forbidden according to the Torah and punishable by *karet or
death. Because of this a marriage between them is void (Sh.
Ar., EH 4:13), and thus, for example, the issue of a union between
brother and sister or between a man and a woman validly
married to another at the time is a mamzer (see *Adultery;
Yev. 45b; Maim., Yad, Issurei Bi’ah 15:1; Tur and Beit Yosef, EH
4; Sh. Ar., EH 4:13). On the other hand, in Jewish law – unlike
in other systems of law – the mere fact that a child is born
(or conceived) out of lawful wedlock does not make him a
mamzer and he is not an illegitimate child, i.e., one whose
status or rights are impaired. The parents of the mamzer are
indeed unmarried – either in fact or since they are so considered
in law because of an absolute legal bar to a marriage between
them – but unlike a man and a woman who, from the
legal point of view, can marry each other but do not want to,
the parents of the mamzer, owing to the said legal bar, cannot
marry each other even if they want to. If one parent is non-
Jewish this fact alone does not make the child a mamzer (see
*Marriage; Yev. 45b; Maim., Yad, Issurei Bi’ah 15:3; Tur, EH 4;
Sh. Ar., EH 4:19).
Consequences of the State of Mamzerut
These are twofold and relate to marriage and to personal status.
(1) Marriage. The Bible lays down: “A mamzer shall not
enter the congregation of the Lord” (Deut. 23:3), i.e., a marriage
between a mamzer (male or female) and a legitimate Jew
or Jewess is prohibited. If such a marriage is nevertheless contracted,
it is legally valid but must be dissolved by divorce (see
*Marriage, Prohibited). A marriage between two mamzerim is
permitted (Yev. 45b; Kid. 69a; 74a; Maim., Yad., Issurei Bi’ah
15:33; Sh. Ar., EH 4:24) and so also is a marriage between a
mamzer and a proselyte (Yev. 79b; Kid. 67a and Rashi thereto;
72b–73a; Maim., Yad, Issurei Bi’ah 15:7; Sh. Ar., EH 4:22).
(2) Personal status. The offspring of a mamzer (whether
male or female) and a legitimate Jew or Jewess are also
mamzerim, since “mamzerim… are forbidden and forbidden
for all time, whether they are males or females” (Yev. 8:3)
and the rule is that in the case of a prohibited union the offspring
follows the status of the “defective” parent (Kid. 3:12;
see *Yuḥasin). On the other hand, as the offspring of a union
between a Jew and a gentile takes the status of the mother, a
child born of a mamzer and a gentile mother will be gentile
and not a mamzer; thus after proper conversion to Judaism,
he will acquire the status of a legitimate proselyte and the fact
that his father was a mamzer will be wholly irrelevant (Kid.
67a, Rashi; Maim., Yad, Issurei Bi’ah 15:3; Tur and Beit Yosef,
EH 4; Sh. Ar., EH 4:20).
Except with regard to marriage, as stated above, the personal
status of a mamzer does not prejudice him in any way.
His rights of inheritance are equal to those of any other heir
(Yev. 22b; Maim., Yad, Naḥalot 1:7; Sh. Ar., ḥM 276:6). His
birth releases his father’s wife from the obligation of *levirate
marriage and ḥaliẓah. The mamzer is eligible to hold any
public office, the highest (i.e., that of a king), for he remains
“thy brother” and “from among thy brethren shalt thou set a
king over thee” (Deut. 17:15; Tos. to Yev. 45b). Furthermore,
according to the Mishnah, “a mamzer who is a scholar [talmid
ḥakham] takes precedence over a high priest who is an ignoramus
[am ha-areẓ]” (Hor. 3:8).
Asufi (“a Foundling”)
Sometimes a doubt may arise whether a child is legitimate
or not and therefore he has the status of “doubtful” mamzer.
One such case is that of a foundling, i.e., a child found abandoned
in a public place when the identity of neither parent
is known; in this case it is unknown whether the parents are
legitimate or mamzerim (Kid. 4:12; Maim., Issurei Bi’ah 15:13;
Tur, EH 4; Sh. Ar., EH 4:31). If such a child is found in or near
a place inhabited by both Jews and gentiles, so that it is impossible
to know even if he is of wholly Jewish parentage or not,
he is considered both a “doubtful” mamzer and a “doubtful”
gentile, so that if he later marries a Jewess and then afterward
she wants to marry another man, she will require a divorce
because of this latter doubt (Ket. 15b; Maim., ibid. 15:25; Tur,
EH 4; Sh. Ar., EH 4:33). If, however, such a child is found in or
near an exclusively Jewish place, he is assumed to be of wholly
Jewish parentage; but as the identity and hence the status of
such parents (whether mamzer or legitimate) is unknown, he
is considered a “doubtful” mamzer (Kid. 74a; Maim., Issurei
Bi’ah 15:21; Sh. Ar., EH 4:31–36). Thus, he cannot marry either
a legitimate Jewess (because he may be a mamzer) or a female
mamzer (because he may in fact be legitimate). However, the
suspicion of mamzerut only attaches to him if the circumstances
in which he was found were such as to cast doubt on
the status of legitimacy of his parents; for instance if it was
clear that they did not care for his survival. If there is any indication
at all that he was abandoned out of necessity, such as
hunger or in time of war, or if there are some signs of minimal
concern for his welfare and future, such as his being circumcised,
clothed, or abandoned in a place (like a synagogue)
where he is likely to be comparatively safe from danger or any
other place where people are more likely to find and take care
of him, then it is assumed that his parents are of unimpeachable
status and so is he. Therefore no suspicion of mamzerut
will be attached to him (Kid. 73b; Maim. Yad, Issurei Bi’ah
15:31; Tur, EH 4; Sh. Ar., EH 4:31).
Shetuki (lit. “Undisclosed”)
The other case where the status of “doubtful” mamzer may
arise is that of a child known to be born of an unmarried Jewish
mother who either refuses to disclose the identity of the
father or claims not to know it (Kid. 69a; Maim., Yad, Issurei
Bi’ah 15:12). Since the father’s status is unknown, the child is
likely to be considered a “doubtful” mamzer (Kid. 74a; Maim.,
ibid.; Arukh ha-Shulḥan, EH 4:47). However, if the majority of
the inhabitants of the district and of those who habitually visit
there are Jews of unimpeachable status, it will be presumed
that the father was also of such unimpeachable status and
therefore no suspicion of mamzerut will be cast on the child
(Tur, Beit Yosef, Bah EH 6 (at the end); Sh. Ar., EH 6:17–18; Beit
Shemu’el 6, n. 31; but cf. Maim., Issurei Bi’ah 18:13–15; Arukh
ha-Shulḥan, EH 4:34). The mother can always avert the suspicion
of mamzerut being cast on her child by declaring that
the father was a legitimate Jew or a gentile. In the latter case
the child takes its status from the mother (i.e., he is a Jew; Kid.
74a; Maim., Yad, Issurei Bi’ah 15:12, 14; Sh. Ar., EH 4:26; Arukh
ha-Shulḥan, EH 4:30, 31, 56).
Karaites
Halakhic problems concerning a “doubtful” mamzer have
arisen in connection with the *Karaites because, while their
form of kiddushin (kiddushei-kesef or kiddushei bi’ah) may be
valid according to Jewish law (see *Marriage) their method of
divorce does not accord with the halakhah, as their get (bill of
divorce) is not in the form prescribed by the sages. Accordingly,
a Karaite woman divorced by such a get is not properly
divorced and remains a married woman (eshet ish) so that
any child she bears to another man whom she marries on
the strength of such a get is a mamzer. Since it is impossible
to determine who, throughout the generations, remarried
on the strength of such invalid divorce, Jewish law casts the
suspicion of “doubtful” mamzer on all members of that community
(Beit Yosef, EH 4 – end; Darkhei Moshe, EH 4, n. 14;
Rema, EH 4:37; Turei Zahav, EH 4, n. 24; Ba’er Heitev, EH 4, n.
49). Some posekim, however, did permit marriages between
Karaites and Rabbanite Jews on varying halakhic grounds and
such marriages were particularly prevalent in the 11t and 12t
centuries. Especially noteworthy is the permission to contract
such a marriage granted by David b. Solomon ibn Abi Zimra
who based his decision on the grounds that the kiddushin of
the Karaites are also invalid according to halakhah, as they are
deemed to have taken place without witnesses, the witnesses of
the kiddushin being disqualified according to halakhah (Resp.
Radbaz, nos. 73 and 796). Thus, according to him, no stigma
of mamzerut is to be attached to a child of a woman who married,
was divorced, and then married another man, all in accordance
with Karaite rites only, since – in Jewish law – she is
regarded as never having been married at all. On the strength
of this argument and for some additional reasons arising out
of the specific circumstances of the case, in 1966 a rabbinical
court in the State of Israel permitted the marriage of a non-
Karaite Jewess to a Karaite man by whom she had become
pregnant (see also Oẓar ha-Posekim, EH 4, n. 175).
[Ben-Zion (Benno) Schereschewsky]
Rabbinic Efforts to Avoid Declaring Mamzer Status
The mamzer rule is intended to deter adults from violating the
severe prohibitions against proscribed sexual relationships.
The result, that the offspring of such illicit behavior bear the
punishment of their parents’ act, seems to contradict a major
principle of Jewish law which punishes only the sinner
(see *Punishment). The Midrash expounds on this problem
(Lev. R. 32, ed. Margolis, 32:8), in its comments on the verse,
“I further observed all the oppression that goes on under the
sun: lo, the tears of the oppressed, and there is none to comfort
them; their oppressors have power – and there is none to
comfort them” (Eccl. 4:1).
The Midrash elucidates the verse as follows: “‘I further
observed all the oppression’ – Hanina, the tailor, relates this
verse to mamzerim: ‘I further observed all the oppression’ –
These are the mamzerim. ‘Lo, the tears of the oppressed’ – [of]
their mothers. [Other versions: their fathers.] They transgressed,
and we banish these unfortunates? This person’s father
engaged in illicit sexual relations, but this person – what
has he done? Of what relevance is it to him? ‘There is none
to comfort them,’ but ‘their oppressors have power’ – this is
the Great Sanhedrin of Israel that comes upon them with the
power of the Torah and banishes them in the name of [the
verse], ‘no mamzer shall be admitted into the congregation of
the Lord’ (Deut. 23:3). ‘There is none to comfort them’ – the
Holy One, blessed be He, said: I must comfort them, for in this
world there is a defect in them, but in the world to come…
[they are] of pure gold.”
This Divine comfort in the world to come does nothing
to alleviate the mamzer’s present condition. Thus, to reduce
this injustice, the Sages developed a series of rules and
presumptions so that even when there is only a remote possibility
that a person is not a mamzer, they could legitimate
him and avoid the stigma of mamzerut with its dire implications.
Thus, a married woman, even if “it is rumored that she
has been unfaithful to her husband, and everyone’s tongue
is wagging about her – her children are not suspected of being
mamzerim.” The explanation is the legal presumption
that “most of her [the married woman’s] acts of intercourse
are with her husband” (Sot. 27a; Yad, Issurei Bi’ah 15:20; Sh.
Ar, EH 4:15).
The Sages established an additional presumption, that
a fetus could spend up to 12 months in the uterus, to enable
the attribution of a child’s paternity to its mother’s husband.
Thus, if a wife has cohabited with her husband at any time
within the 12-month period prior to her child’s birth, paternity
is ascribed to him (Yev. 80b; Yad, ibid., 15:19; Sh. Ar., EH
4:14).
Even when the mother explicitly declares that she was
impregnated by someone other than her husband, her declaration
is inadmissible (Sh. Ar., EH 4:29). Admittedly, in relation
to a father’s declaration that he is not the father of a child,
the rule according to most authorities is that his declaration is
valid. This claim is called “yakir” – based on the verb in Deut.
21:17, “He shall acknowledge [yakir] the first-born, the son of
the hated, by giving him a double portion,” i.e., the father recognizes
that son as his firstborn. However, R. Simeon Kayyara
of the geonic period in his Halakhot Gedolot limits the father’s
authority to grant “recognition” to determination of birthright,
so that in any other case, a father’s testimony rendering his
son a mamzer is invalid: “Even if his wife is most licentious,
most acts of intercourse are ascribed to the husband” (end of
section 29, Hilkhot Arayot).
In addition, the Mishnah cites a tradition that “Eliyahu
will not come [in the future] to declare the pure, impure –
nor to declare the impure, pure; nor to distance those who
are near or to draw near those who were distanced, but only
to distance those drawn near by force and to draw near those
distanced by force” (Eduyyot 8:7). R. Obadiah of Bertinoro
interprets the citation as meaning that Eliyahu will only distance
those who are publicly known to be tainted but were
forcibly intermingled among the Jewish People, “but where
there is a tainted individual in a particular family, but this is
not publicly known, owing to the family having intermingled
[into the Jewish community], Eliyahu will let it remain so and
let the family retain its presumption of legitimacy.” This was
the basis for the Rema’s ruling (Sh. Ar., EH 2:5) that if a person learns that one of the progenitors of a particular family is
tainted by mamzerut, he may not reveal this, “but rather he
should allow the presumption of their legitimacy to remain
intact, for all the families that have become assimilated into
Israel are legitimate in the future.”
TISSUE TYPING AND THE ESTABLISHMENT OF PATERNITY.
The Talmud (BB 58a) records a case where a man learns
that nine of his children are mamzerim and only one is his
real child. Before his death, the man bequeathed his property
to his real child, but he did not know who the real child was.
When the case was brought before R. Bena’ah, he ordered a
test to determine which son, according to his characteristics,
was the legitimate heir. Sefer Ḥasidim (section 232) discusses
a method, considered scientific by the standards of the time
for determining paternity. Rabbi Samuel Strashun (Haggahot
ha-Rashash) comments on the talmudic source that R. Bena’ah
refrained from employing the “scientific” test mentioned in
Sefer Ḥasidim because by doing so he would have revealed
that the other sons were mamzerim.
With the development of scientific means for identifying
family relations by genetic testing of tissues, these principles
have become more significant. Rabbinical courts have considered
the validity of a scientific test that produces results that
contradict juridical presumptions of Jewish law, such as the
one mentioned above, that “most acts of intercourse are attributed
to the husband.” Rabbi Shlomo Dikhovsky (File 866/41
PDR 13, 51) rules that one must accept tissue typing intended
to establish paternity for purposes of ruling on child support
payments (see *Maintenance), but for establishing mamzerut
one may disqualify reliance on tissue typing because it is not
infallible (p. 60). The Rabbinical Court of Appeals has ruled
in a number of cases that even for determining maintenance
payments, tissue typing to establish paternity may not be used
as an absolute criterion, and there is also a need for supporting
evidence.
This question was brought before the Israeli Supreme
Court (CA 548/78, Sharon v. Levi, 35 (1) PD 736 per Justice
Menahem Elon), that ruled that in Israeli courts tissue typing
for establishing paternity should be admitted as evidence.
The court emphasized, though, “that tissue-typing would
not, in every case, establish paternity.” Moreover, in certain
instances the court may decide not to make use of this test,
when the test is liable to label a minor as “tainted,” e.g., when
a married woman claims that while she was married she became
pregnant by someone other than her husband, and that
the person by whom she became pregnant is the father of her
child. If true, this statement of the married woman would result
in the minor being stigmatized as a mamzer. In this or
in similar cases involving the establishment of status, “proof
provided by tissue typing is insufficient to establish paternity”
(p. 748 of decision). Thus, in such cases, paternity shall
be established based on the juridical presumption assumption
that “most acts of intercourse are ascribed to the husband.”
This ruling is based on Jewish law’s sensitivity to a
person being stigmatized and branded by mamzer status and
the halakhic principles of making various legal presumptions
to avoid such stigmatization. Further on its ruling, the court
cites some of the Jewish law sources cited above upon which
it based its ruling.
In another ruling (CA 1354/92, Attorney General v. Anon.,
PD 48(1) 711, per Justice Menahem Elon), based on these considerations,
the court ruled that even when both parents give
their consent to tissue typing for establishing the parenthood
of a minor, such a test should not be conducted if there is risk
involving the minor’s best interests, inter alia raising doubts
about his legitimacy, and these interests supersede the interest
in investigating the truth.
The court added (pp. 739–40) that although the rabbinical
courts have no reason to suspect that such testing would
determine an individual’s status as a mamzer, since only rabbinical
courts have the authority to declare someone a mamzer,
there are two reasons for discouraging such testing.
First, acceptance of such findings in a civil court might
socially brand the minor, sufficient reason for prohibiting
the testing. Secondly, there is no certainty that the rabbinical
court will not change its stance and decide to recognize such
results as sufficient to supersede the juridical presumptions
assumptions cited above: “Since no one can assure us that if
indeed the test is performed and if it indicates that the mother’s
husband is not the father of the minor, a rabbinic court
would not consider the results and rule accordingly. As we
have seen, the halakhah relies on various presumptions assumptions
and fictions to preclude the tainting of a child as a
mamzer, by reason of his married mother having been impregnated
by someone other than her husband. But as we noted,
according to halakhah as well, when it is clear that the child
cannot be the offspring of the mother’s husband, such as a case
in which it has been proved that for 12 months there were no
relations between the husband and wife, even the halakhah,
for lack of alternative, declares the offspring a mamzer. Thus,
several rabbinical courts have ruled against relying on tissue
typing for proving paternity” (p. 740).
[Menahem Elon (2nd ed.)]
Bibliography: ET, 1 (19513), 202; 2 (1949), 71–74; Ha-Ma’or, 12
(1961), issue 9, p. 28 (English numbering of the same: 11 (1961), issue
7); S.M. Pasmaneck, in: HUCA, 37 (1966), 121–45; B. Schereschewsky,
Dinei Mishpaḥah (4t ed., 1993), 352–66; M. Elon, Ḥakikah Datit…
(1968), 178–81. Add. Bibliography: M. Elon, Ha-Mishpat ha-Ivri
(1988), 1:297, 303, 352, 432, 463, 519, 543, 636, 670, 814; 2:873; 3:1405,
1464; idem, Jewish Law (1994), 1:352, 353, 361, 424; 2:527, 565, 631, 660,
788, 828, 997; 3:1065; 4:1674, 1739; idem, Jewish Law (Cases and Materials)
(1999), 353–61, 549–55; idem, Maʿmad ha-Ishah (2005), 306,
338, 342; M. Elon and B. Lifshitz, Mafte’aḥ ha-She’elot ve-ha-Teshuvot
shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 1 (1986), 167; B.
Lifshitz and E. Shochetman, Mafte’aḥ ha-She’elot ve-ha-Teshuvot shel
Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1977), 108–9; D.
Frimer, “Kevi’at Avhut al yedei Bedikat Dam be-Mishpat ha-Ivri u-ve-
Mishpat ha-Yisra’eli,” in: Shenaton ha-Mishpat ha-Ivri, 5 (1978), 219;
A. Steinberg, Enẓiklopediyah Hilkhatit Refu’it, 1 (1994), 1–6; D. Helek,
Hokhaḥat Abahut (1987).
Tags: ѓалаха
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