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There is no Problem of Descent

Originally published in Judaism 34.1 (Winter 1985), 55-59.

From the historical evidence marshalled by Professor Cohen it would appear that the change from the patrilineal to the matrilineal principle for the offspring of mixed unions of Jew and gentile took place in the early Tannaitic period. The central problem is why the change was introduced only here while the older principle was retained with regard to status, kinship and succession where both parents were Jews.

Historians, following their natural bent, have sought to discover the reason for the change in historical circumstances. Cohen is surely correct in his criticism of the theories advanced by earlier historians and, considering these theories to be implausible, he advances two new theories of his own: either the Tannaim were influenced by the Roman legal system or there took place an internal development on the analogy of animal crossbreeding in connection with the laws of kilaim. With regard to the first theory, Cohen himself admits the paucity of evidence for Roman influence.

Boaz Cohen (Jewish and Roman Law, New York, 1966, pp. 133-145) noted the resemblances between Roman law in this matter and the law of the Mishnah but circumspectly refers only to "some interesting parallels." Moreover, even if the Rabbis were familiar with the Roman law, they might have reacted to it by preserving the patrilineal principle, holding fast to their own system. It has been suggested, for instance, that the absence of legal adoption in Rabbinic law despite Biblical precedents and the high value placed on one who rears an orphan as his own child, is in conscious reaction to the Roman system. This, too, is far from certain but it is unlikely in our case that the Rabbis would have allowed the influence of Roman law to effect a change of so far-reaching a nature.

Cohen's kilaim theory is novel and ingenious but borders on the pilpulistic. Whether a mule is a horse, a donkey, or a separate species is a quasi-biological question, i.e., what is the legal definition of such a hybrid. It has nothing whatsoever to do with patrilineal or matrilineal descent any more than does the similar discussion (Babylonian Talmud Yoma 74a-b) of whether a koy is a hayyah or a behemah or a separate species. The legal definition depends on whether the mule is a horse or a donkey, not whether its descent from a horse or a donkey is determinative of its status. If it is decided, for example, that the mule is a horse this is hardly because it has the status of its father, if the father is a horse. It is, rather, that the mule has the degree of "horsiness," as it were, to be legally defined as a horse. When, on the other hand, the question is being considered of whether a child of a mixed union has the status of its father or its mother this has nothing to do with biology, with the genes, as we now say, as if the law were concerned to determine whether or not there are sufficient Jewish genes for the child to qualify as Jewish. The Rabbis were interested in mixtures, as Cohen remarks, but they did not mix their categories and their interest was not in mixtures per se but in the subtle questions of legal definition to which mixtures give rise.

Whenever Rabbinic law has developed differently from Biblical or pre-Rabbinic law (though, generally, in these instances the Rabbis did not formally acknowledge that there had been any development), historians seek to discover the causes and are usually successful in suggesting plausible reasons for the development. Only the fundamentalist who, as Cohen says, dogmatically rejects the whole notion of development will refuse to tread this road paved with the massive stones provided by Zunz, Krochmal, Frankel, Rapoport and their successors.

Cohen, for instance, argues very convincingly that a development did take place from the patrilineal to the matrilineal principle. But this should not lead to the conclusion that development is always due to adaptation in response to external stimuli. Rabbinic law, after all, does possess an inner logic of its own. To be sure, historians have demonstrated that, frequently, the formal logic of the law is only a facade and that the real causes at work were external to it. Nevertheless, it is a mistake to conclude that changes in the law never occurred in obedience to pure logical theory by means of which the law receives elaboration and qualification. Where the law is patently at variance with its own logic, historians do well to try to uncover the motivations - conscious or unconscious - of the Rabbis in effecting the changes. Far greater caution needs to be exercised if the law and its development is perfectly intelligible according to its own inner processes. It seems to me that on the question of patrilineal versus matrilineal descent there is no need at all to look for "reasons" (in any event, the reasons given are very unconvincing). No "reason" is required, since the non-application of the patrilineal principle in cases of mixed parentage presents no problem and is reasonable in itself. As the Brisker school often puts it, the best solution to a problem shows that there was no problem in the first place.

There is, in fact, no problem at all why the Rabbis (or, if the change took place in the pre-Rabbinic period, their predecessors) should have been driven by sheer logic to conclude that the patrilineal principle must be limited to internal relationships. The key verse in this connection is by their families, by their fathers' houses (Numbers 1:2). But it seemed eminently logical to limit this principle to those unions which take place within the "families" of Israel, within the Israelite "clan." A child born of a Jewish father and a gentile mother cannot be given the status of the father since the patrilineal principle is stated only with regard to unions within the clan. How can the father who steps out of the clan bestow a clan status on the child whom he sires?

Moreover, incidentally, the patrilineal principle is not limited to Jews. Gentiles, too, have a pedigree, or, at least, that is stated without dissenting voice and with Scriptural support in the Babylonian Talmud (Yevamot 62a; Bava Kama 15a). But there is no such concept in Rabbinic thought as matrilineal descent (cf. Bava Batra 109b, quoted by Cohen, "the family of the father is regarded as the family; the family of the mother is not regarded as the family"). The child of a Jewish father and a gentile mother is not a gentile because of the application of any matrilineal principle. There is no such thing (and the term used in our discussion is, consequently, very imprecise and can be used only because it provides an adequate shorthand). He is a child without Jewish parentage since the patrilineal principle cannot operate for a union carried out beyond the limits of the clan. The child is not a gentile because his mother is a gentile but because the only way a child can be born as a Jew is for him to have the Jewishness of his father transmitted to him and this cannot happen where the union is outside of the clan limits. Thus, for the Rabbis there is no switch here from a patrilineal to a matrilineal principle. The patrilineal principle still stands, only it cannot operate in this instance.

Conversely, the child of a gentile father and a Jewish mother cannot have applied to him the patrilineal principle as operating for gentiles since, in siring the child, the gentile father has stepped outside of his clan. The child is not a Jew because his mother is a Jew (since there is no matrilineal principle). Logic must seem to demand that such a child should be neither a Jew nor a gentile. He should not be a Jew because there is no matrilineal descent and he should not be a gentile because the gentile patrilineal principle cannot operate. But since there is no such category the child cannot be left in limbo.

Jewish law has to have something to say regarding the status of every human being. A new status has to be found for him, which, according to the Mishnah, is that of a mamzer, a status already found in the law, into which he can be slotted, as it were, despite the difference between him and the mamzer. But the law of mamzerut applies only to Jews and, hence, he is given the status of a Jew. The final ruling, contrary to that of the Mishnah, is that he is not a mamzer. Why, then, is he a Jew? The answer seems to be that, since he must be given one status or the other and he has been born to a Jewish mother, he is given the status of a Jew. But he is not a Jew because he has been conceived by a Jewish mother (as he would have been if matrilineal descent really came into operation) but simply because he emerged from a Jewish womb.

If the reason why the child of a Jewish mother and a gentile father is Jewish is because of the matrilineal principle, why should the Mishnah have suggested that he is a mamzer? If the matrilineal principle operates, the child is a Jew like any other Jew. But if, as we have suggested, in this instance there is a child who cannot conveniently be fitted into any status and for whom, nonetheless, some status has to be found, the nearest status is that of mamzer. The Jerusalem Talmud (Qiddushin 3:14, 64d) records an opinion that the child is neither kasher nor pasul but mezoham ("tainted," which is not a legal category at all). He cannot be declared completely kasher, on this view, since he does have a gentile father, physically if not in law. Nor can he be declared pasul since he is not, in fact, a mamzer.

If this analysis is followed it all fits beautifully together and there is no reason to seek causes, mysterious or otherwise, for alleged mysterious effects. Occam's razor is a useful tool for historians as well as philosophers. What happened was not a change from a patrilineal to a matrilineal principle but a limitation imposed by logic on the former. The question why the patrilineal principle does not operate for unions outside the clan while it does operate for those within the clan is meaningless. Precisely because it is a clan principle it cannot operate for unions outside of the clan. Within each clan, Jewish and gentile, it does operate.

Once the law had been developed in this way the attempt is made to discover it in the Scriptural verse (Deuteronomy 7:3-4) quoted for the purpose in both the Bavli and Yerushalmi, an attempted derivation that is, as Cohen says, "not entirely clear." Leaving aside the complicated question of which came first, generally, the derashah or the law "derived" from it (see the summary in I. Heinemann: Darkhey ha-Aggadah, Jerusalem, 1974, Introduction, pp. 1-14), here it would certainly seem to be the case that the derashah is for the purpose of discovering in Scripture that which had long been attained by logical reasoning.

Cohen, in his concluding remarks, argues that history and Halakhah are autonomous disciplines so that his findings as a historian have no consequences for the practical issue of whether a modification of the law can, or should be, introduced. However, at the beginning of his essay, he informs us that the Reform movement has recently decided to adopt a "non-lineal" principle, according to which a child of a non-Jewish mother would be considered a Jew if raised as a Jew. Whether or not the matrilineal principle should be retained, Cohen leaves for others to determine.

This approach of non-involvement in practical decision-making has long been typical of historians of the Halakhah, either because they fear that involvement may compromise their scholarly objectivity or because they modestly aver that no scholar can be expected to have skill and competence in more than one field. In other legal systems, too, legal historians are rarely acknowledged jurists. Yet, while one can go along with the idea that the law has a life of its own, following its own precedents, and that history should not have the determinative voice in halakhic decisions, it is hard to see why it should be denied any voice. To put it bluntly, if the researches of the historians have made it seem extremely plausible that certain laws were not given directly by God to Moses at Sinai but have developed gradually over the ages - the stages in the development having been traced - why should this fact not be used as an encouragement for further development where such is needed? This was the topic discussed in the Gordis paper in the Summer 1979 issue of Judaism and continued in the symposium on Jewish Law in the Winter 1980 issue.

It is a reasonable principle that a well-established law, accepted unanimously and universally for almost two thousand years and that is at the heart of Jewish self-definition, should be changed only if there are the weightiest religious and ethical reasons in favor. I cannot claim an awareness of all the arguments for change in the matter of matrilineal descent but those that I have seen have little weight. Why is the change advocated and what particular change is contemplated? I hope it is not impertinent, for someone writing thousands of miles distant from the great country in which the women's liberation movement has made such rapid strides, to express astonishment that the clamor to change an ancient law which makes Jewish status depend on the mother should have originated in that very country.

Is it being advocated that a child should be considered Jewish when either of its parents is Jewish on the grounds of fair-play? In that event, why should parenthood come into the question at all? Is there not a largely undetected move towards a Christian-type conversion by a profession of faith vastly different from the theology of Jewish peoplehood? And would those who advocate this type of approach also argue that the halakhic principle (itself the result of a long development of the law), "once a Jew always a Jew," be abandoned so that, just as a gentile becomes a Jew by declaring that he is such, so a Jew who declares that he is no longer a Jew ceases to be one? There are theological questions of greater moment than those of pure halakhah and the implications are frightening. We should not be scared of the consequences if our aim is to redress a great wrong, but can it seriously be held that the application of the matrilineal principle has been responsible for the perpetration of a great wrong now to be redressed by valiant iconoclasts?

To sum up. Cohen has made his case. There has been a development of the law in these instances from Biblical and pre-Rabbinic times. The attempt to find reasons for the change, however, has proved to be elusive and is quite unnecessary since it can be explained entirely economically by the logic of the law itself and is typical of Rabbinic thinking in general. But the development in the law had already taken place before the redaction of the Mishnah at the very latest. With the exception of the Rabbi in the Jerusalem Talmud (Qiddushin, 3:12) who permitted the child of a gentile mother and Jewish father to be circumcised on the Sabbath and whose opinion was vehemently rejected, the law is accepted unanimously in both Talmuds. It is recorded as the law in all the Codes without dissenting voice and has been the universal norm in all Jewish communities. For such a law to be changed, only the weightiest religious and ethical advantages will suffice and it is difficult indeed to discover any such in the change in this particular instance. To change this particular law would strike at the heart of the whole halakhic process and would involve a theological as well as an halakhic upheaval. And for what? The potential loss is great. The gains, if any, are few and the price is far too high.

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