Solution to illegitimacy problem
The Jewish sages succeeded in solving a wide range of serious moral problems arising out of Halacha but the problem of illegitimacy has remained. There are two possible solutions – but the question is who will take the initiative
Rivka Lubitch • Ynet
Illegitimacy is morally the most difficult and problematic moral issue in Judaism today. We have already resolved other difficult issues through various methods of interpretation: There is no Sanhedrin and therefore we don’t stone people who desecrate the Sabbath in public; Sancheriv mixed up the nations and therefore it is not possible to kill a person who might admit that he is from the nation of Amalek; there is no need to destroy the seven nations who inhabited the Land of Israel because anyway they no longer exist; we don’t need to kill a rebellious son because the case is only an allegory; and use of the bitter waters (to ascertain if a wife had committed adultery) fell into disuse because of the increase in men carrying on affairs. Great. Can we rest on our laurels? No. There are still mamzerim (people considered illegitimate).
Mamzerim are people who suffer indescribably throughout their entire lifetimes for something they didn’t do. They were born into a situation of shame, embarrassment, rejection and shunning. And they transmit this status on through the generations, until they assimilate (if it is even possible to assimilate, when the lists in the rabbinic courts are computerized). The reason that the public doesn’t know about this phenomenon is because their shame is so great that they hide their story so that no one knows that they exist. In this matter the rabbinic court cooperates beautifully with the mamzerim. Everyone keeps quiet. But believe me, they exist.
Everyone wants to permit mamzerim to marry. No one likes the idea that there are people who are “banished” and cannot enter into the community. But the rabbis prefer to deal with each case on its merits and not to create overall halachic solutions to the problem, because an overall solution would be a rebellion against one of the foundation stones of the Torah.
Another small step
In resolving the cases of mamzerim “one by one” there are several problems. Firstly, many cases do not reach the “right” halachic authorities who can solve the problem. Secondly, many cases are resolved only after many years of distress and suffering. And thirdly, there are many cases that just don’t get resolved.
So, since the rabbis and the great sages of the generation aren’t about to establish overall rules that would allow mamzerim to be part of the community, I humbly permit myself to propose directions for overall solutions of the issue.
The general acceptance of mamzerim could be based upon one of two ideas: Either “we are all mamzerim” or “in our times there are no mamzerim.” The idea of we are all mamzerim is quite simple. If the mamzer passes his status on to all of his descendants and his descendants continue to pass the status on, with no possibility to correct it, and in each generation there are many babies born as new mamzerim – then simple arithmetic is that the majority, if not all, of the Jewish people are presumed to be mamzerim. For this reason it may be declared once and for all that we are all mamzerim – and the matter is finished. The only ones who are not mamzerim would be converts who have newly joined the Jewish people. But, since a convert is anyway allowed to marry a mamzer (because converts are not considered part of the “congregation of Hashem”), the problem is resolved and mamzerim may marry anyone.
The idea of “in our times there are no mamzerim” is based upon the absolutely opposite thought. The sages made it so difficult to declare someone a mamzer to the point where it had to be said that there is no possibility to say that someone is a mamzer. If notwithstanding all of this, the rabbis still found no legal maneuvering by which it would be possible to remove a person’s status as illegitimate – then this stems solely from the failings of the rabbis and their lack of expertise in halacha. It can be surmised that if greater rabbis lived among us they would succeed in removing the status of mamzer from any given person.
In order to strengthen this idea, the rabbis must take another small step and say that they will not accept the testimony of a person who incriminates himself and makes himself illegitimate, in line with the dictum that “no one makes himself an evil person,” and that they don’t believe anyone else who testifies that such person is illegitimate. The deciders of halacha acted in this manner in other places, such as in the case in which a man is not interested in believing that his wife was unfaithful, so that he wouldn’t have to divorce her. In this case it is possible to rule that we don’t believe someone who tarnishes another’s reputation and wants to prove that someone is illegitimate.
I have only begun in this article to articulate the principles upon which mamzerim may be permitted – let others go and complete the work.
Rivkah Lubitch is a rabbinic court pleader who works at The Center for Women’s Justice , tel. 02-5664390.