Parshat Ki Tetze (Deuteronomy 21:10 – 25:19)
Rabbi Shlomo Riskin
Efrat, Israel – “An illegitimate person shall not enter into the congregation of the Lord; even his tenth generation shall not enter into the congregation of the Lord” (Deut. 23:3)
One of the most difficult biblical laws to understand is that of the mamzer, the product of an adulterous (or incestuous) sexual liaison, who may never enter into a marriage relationship with another Jew.
We can readily understand why the adulterers themselves are forbidden from marrying each other, even after they become divorced from their previous spouses; they, who showed such disdain and disregard for the exclusive and sacred marital relationship by betraying their marital partners, dare not enter together into matrimony, since God “has sanctified His nation Israel by means of the nuptial canopy and the marital ritual of kiddushin” (the initial blessing, along with the blessing over the wine, at a wedding ceremony). The glory of the Jewish people has always been the purity of our family life.
But why punish the innocent product born of such an adulterous act? He/she has done nothing wrong; he has certainly not controlled the nature of the act which led to his/her birth. Why forbid him/her to ever become married in Israel? In order to understand the meaning behind this law, I believe it is necessary to understand the difference between the Written Law (Bible), which the sacred Zohar calls “the harsh law” (dina de’takfa), and the Oral Law (Talmud and Responsa) which is called in turn “the soft and compassionate law” (dina de’rafiya). The interpretation I am now expositing in differentiating between these two corpora of legal doctrine is hinted at both in Maimonides’s Mishne Torah, Laws of Blows and Damages (1, 3) and Guide for the Perplexed (part 3, chapter 41).
Even a cursory glance at the Bible will reveal the many instances in which capital punishment is called for, the Bible declaring that the offender “must surely die, is certainly to be stoned to death” (mot tamut, sakel yisakel). The Oral Law, however, greatly limits these extreme punishments, insisting that a trial can take place only if two knowledgeable and objective witnesses give testimony that they saw the actual crime being perpetrated (circumstantial evidence not being admissible in a Jewish courtroom), and took the opportunity to give proper warning to the assailant, determining that he was aware of the action he was about to commit and its punitive consequences; hence R. Akiva and R. Tarfon both declare that if they had been on the Sanhedrin, no human being would ever have been tried for a capital crime. And our Sages declare that if a culprit was put to death once in 70 years, the court would be declared “a murderous court” (Mishna Makot 1;10 ).
The difference in punitive attitude becomes clear when we remember the different purposes guiding each legal code: The entire Pentateuch is heard each year by every Jew who attends Sabbath services, so that the goal of the biblical readings each week is to inform and inspire the consciences—first and foremost of the Jewish attendees—by inspiring them to understand the critical importance of ethical and moral actions.
The Oral Law, however, which sets down the actual punishments, must mediate the law with life, taking into account that if, God forbid, the wrong person is put to death for a crime he did not commit, there is no judicial recourse to bring him back to life. Hence the Oral Law softens and even sweetens the penalties, even bending over backwards to be lenient with the defendant.
For example, the Written Law warns “an eye for an eye,” since the only way an individual can understand the enormity of his crime of taking out a person’s eye is for him to have his eye removed; the Oral Law then explains that, since different people have different levels of eyesight and some professions require greater use of the eyes than do others, the actual penalty must be monetary remuneration rather than the removal of the eye.
The Bible, since it wished to inspire Israel to respect and protect the moral integrity of the marital union, teaches that if one degrades the marital fidelity, the product of such a liaison would never be able to enter a marital union, for all subsequent generations. However, the Oral Law made it virtually impossible to have a practical instance of mamzerut: not only would there have had to be two witnesses who gave warning to the transgressing couple prior to their act of adultery, which would have had to take place in front of those witnesses, but the halachic presumption is always that since the majority of sexual acts are between husband and wife, every child is presumed to be the child of that husband (and since paternity tests are not 100% accurate, they are not sufficient proof of adultery). When the case of a woman whose husband went overseas twelve months before she gave birth was brought before a religious court in talmudic times, the judges declared the child to be “kosher,” assuming that the fetus had gestated in the woman’s womb for 12 months! And in a similar incident they ruled that the husband had secretly returned for a night unbeknownst to anyone.
In more modern times, I do not know of a single case of mamzerut for which Hacham Ovadia Yosef or Rav Moshe Feinstein did not find a positive solution enabling the person in question to marry into the Jewish community. Unfortunately, the present religious establishment is not as bold as the decisors of previous generations.