Untangling the Issue of Mamzer

In Halacha, there are two types of Mitzvot; Mishpatim and chukot. While Mishpatim are logical at first glance, chukot are mysterious and their reasoning is usually unclear¹. One of the more difficult chukot to contend with is the status of Mamzer; a child of sexual relations that are chayav karet, with the exception of Nida.² 

The chok states that a Mamzer cannot marry within the Kahal of Bnei Yisrael. Rather, they can only marry another Mamzer for ten generations. There are a few ways to break the cycle for male Mamzerim, they can either have a child with a non-Jew³ or a slave and if/when that child converts/is freed, the child is not considered a Mamzer⁴. However, the child will not be considered the father’s halachically in connection to the mitzvah of Peru U’revu. Due to all the complications, some say it is preferable for a Mamzer to not procreate to break the cycle⁵. 

Between the fact that the essence of the sugiya is that the children are punished for generations based on the actions of the parents, the mitzvah of Peru U’revu is considered to be secondary to keeping Mamzerim out of the congregation and the unfortunately rising issue of agunot, it is not surprising that Mamzer is a chok. There is no doubt that it is a difficult chok to swallow. 

In Mishlei it says “Her ways are the ways of pleasantness and all her paths are peace.”⁶ This is obvious, by keeping the Halachot of the Torah as Hashem commanded one will lead a pleasant and peaceful life. But the verse has a deeper meaning. The Rambam explains that the Torah is meant for people to live by, that built into the structure of the Torah and Halacha is compassion⁷. The Ralbag explains further and says that the Torah is not meant to be a burden on people⁸. The Metzudat David says that this means there should be no stumbling blocks in the way of keeping the Torah because the Torah is compassionate⁹. 

Due to the compassion of the Torah, finding leniencies (Heterim) is a common Halachic precedent and built into the halachic framework. Yet, leniencies are usually less prominent in the case of a chok, a law that we are not supposed to think we understand but trust that Hashem has His reasons. Nevertheless, it is and has been encouraged for Batei Din to find leniencies. This is also the case when it comes Mamzer, Batei Din are at times encouraged to find leniencies to prevent declaring children Mamzerim. 

But if halacha is from Hashem and therefore how we should strive to live, then why would Hashem write the halachot in a way that in some cases Batei Din would investigate every angle to find leniencies as opposed to following the straightforward Halacha exactly a it is written? In order to answer this question, we must first understand the change that occurred in man’s understanding of Hashem’s ways and world upon eating from the Eitz HaDat Tov V’Ra. 

The Rambam tells how he was once asked why Adam was punished for obtaining what we consider to be one of our best traits as humans, what sets us above the animals; our intellect. The Rambam explains that intellect was given to man upon creation, when God blew into man a part of His spirit. Rather, by eating of the Eitz HaDat Tov V’ra man’s way of thinking changed. Before eating from the tree, man was similar to the angels in that Hashem’s will and absolute truths were known and therefore there was nothing that man thought of in the lens of “good” or “bad” but simply true (morally as well as in all aspects) and false. However, after eating from the tree, Adam and Chava’s ‘eyes were opened’. Now their eyes were open to subjective good and bad and not only to objective moral truth, such as their own nakedness. Therefore, they turned towards their desires, things they deemed to be good, which in their case were the things that were forbidden and therefore they had to be exiled¹⁰. 

The Beit Yaakov digs deeper and points out that in the pesukim, it first says that the Eitz HaChaim was at the center of the garden and then Hashem says to not eat from the Eitz HaDat Tov v’ra. Then when speaking to the snake Chava says that they are not to eat of the Eitz HaDat Tov v’ra that is in the center of the garden. From here, the Beit Yaakov concludes that there was only one tree in the center of the garden but it was different depending on how one viewed it. Whether they viewed it through the lens of the aspect of Hashem (compassion) or Elokim (harsh judgment). If one only looked through the lenses of Elokim, then one would only see the rule of law made from the human moral framework of good and bad, and see how they are flawed and surely to be punished by the harsh judgment of Elokim. But when one looks through the lens of the compassionate side, Hashem, then one doesn’t worry about flaws that can lead to punishment but understands that there is compassion for those flaws built in and where there is compassion, there is clearly life. Their inability to see compassion, life and pleasantness in the ways of Hashem is why they needed to be exiled from the place that was at its core (literally) represented the pleasant and peaceful life that following in the ways of Hashem can bring¹¹.

After eating from the Eitz HaDat Tov V’Ra, Adam and Chava could no longer intuitively understand the difference between true and false. Rather they began to see the world through as good and bad and the justifications that blur the lines between the two. Once mankind had set out on a path of seeing the world in shades of good and bad, the Torah and Halacha had to be created and formulated with compassion for human flaws built in, which is where leniencies come in. 

Halacha can be the general rigid, objectively moral right action in most situations. However, the Torah is being practiced by the people, and since Adam and Chava ate from the tree, people are governed by their desires, by what they feel is “good”, which often is not always what is right.

One of the famous Mamzer cases in which the Israeli Beit Din investigated and found leniencies was a case that was presented before the late Rav Ovadya Yosef. A couple had gotten married according to Halacha, but upon divorce the husband, for reasons unknown, only gave the wife a civil divorce. Once divorced, the husband married a non-Jewish woman and after many years the wife remarried a Jewish man. When it came time for her two children from her second marriage to get married, a problem arose. After an investigation Rav Ovadya Yosef declared the children to not be Mamzerim on three accounts:

1. According to Halacha only a man testifying that the children are not his determine that they are mamzerim, a woman may deny that her children are not a particular man’s children but her testimony in this matter does not qualify for proof of Mamzerut. 

2. The Beit Din was not able to obtain a testimony of whether he fathered the children or not, from the first husband.

3. The wife testified that sometimes her ex-husband would come to her new home with her second husband when she was home alone to drop off child support checks and would sometimes flirt with her. Therefore, Rav Ovadya declared there is a possibility the first husband is the father. 

Rav Ovadya declared that there was too much safek to declare the children Mamzerim and they were permitted to marry within the congregation of Israel.¹²

Halacha can be the general rigid, objectively moral right action in most situations. However, the Torah is being practiced by the people, and since Adam and Chava ate from the tree, people are governed by their desires, by what they feel is “good”, which often is not always what is right. Like all Mitzvot, Mamzer is the objective moral truth of Elokim, and makes it clear that immoral action cannot go without consequence. Nevertheless, at the same time, also like all mitzvot, within the framework of Hilchot Mamzer is space for compassion because Hashem is compassionate. 

1.  https://outorah.org/p/37639/ ↩︎
2. משנה יבמות ד׳:י״ג ↩︎
3. While the Even HaEzer mentions this as an option, it not a solution that is practiced as that would mean marrying a non-Jew and going against that prohibition.  ↩︎
4. אבן העזר ד׳:א׳-כ״ב ↩︎
5. Peneinei halacha, Chapter 6,  https://ph.yhb.org.il/en/14-06-06/ ↩︎
6. משלי ג’:י”ז ↩︎
7. רמבם, הלכות מלכים י:יב ↩︎
8. רלב״ג על מ”ג משלי ג יז ↩︎
9. מצודת דוד על מ”ג משלי ג יז ↩︎
10. רמב”ם: מורה נבוכים, חלק א’ ב׳
    https://www.sefaria.org.il/sheets/218982?lang=he&vside=Guide_for_the_Perplexed,_English_Translation,_Friedlander_(1903)%7Cen&with=Translation%20Open ↩︎
11. בית יעקב, בראשית, אות נ”ט ↩︎
12. https://www.sefaria.org.il/sheets/21492.1?lang=he&vside=William_Davidson_Edition_-_English|en&with=Translation%20Open&lang2=he
    ↩︎