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Mamzer

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 11th and 12th 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).

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 (4th 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).