SHIUR BEKIYUT #5: Mishna 69a: R. Tarfon Omer
1. The previous mishna laid down a rule (no. 2) that implied that mamzerut is always hereditary. R. Tarfon suggests a way to use the fourth rule of the mishna to avoid the implications of the second rule. If a mamzer marries a shifcha, the child has the status of the mother, that is, he is an eved (or shifcha). This status can be ameliorated; the child can be emancipated, in which case he becomes a yisrael kasher (a "charuri," to use the term of the first mishna in the next perek, which is the equivalent of a ger, a convert). The mamzerut of the father is not sustained by the eved, and consequently does not carry over to the freed eved either. R. Eliezer maintains that the child is an eved like his mother, but is also a mamzer like his father, so nothing is accomplished.
R. Tarfon's position is based on the principle explained last week, whereby the child of a shifcha is like her not only in terms of avdut, but for all matters. He has no relationship with his natural father at all. Hence he doesn't inherit mamzerut from him, since the mamzer "is not his father."
The Tosafot we learnt last week (68b, s.v. Vlada) stated that R. Eliezer also agrees with the principle that the son of a shifcha is not the son of his natural father, at least in terms of the four ramifications Tosafot mention. What is the difference between inheritance (estate), yibum, and tum'a, where he is not a son, and mamzerut, where this is the disagreement between R. Tarfon and R. Eliezer?
[Take five minutes to formulate your answer to that question, I'm in no rush.]
The uncontested point is that the two individuals, the yisrael father and the eved son, are not related to each other. The points mentioned by Tosafot depend on family relationship. Does the man HAVE a son? If yes, the latter inherits him, performs yibum for his brother's wife, removes the need for his father's wife to undergo yibum, and may become tamei for his father or brother. Since the answer is no - none of these things hold. However, mamzerut is not the result of the relationship between the father and the son, but of the fact of birth. For instance, suppose it were possible for a man to renounce his son - sort of like a reverse adoption. It would follow that he would no longer inherit, perform yibum etc. He has been expelled from the family. Would he stop being a mamzer? Of course not! Mamzerut is not an expression of family ties, which have been annulled, but of the cause of your conception. R. Eliezer holds that if the male cause in conception was a mamzer, the child is a mamzer, even if that cause does not subsequently bear the name "father."
R. Tarfon holds an extremely strong version of the aforementioned principle. In a yisrael-shifcha relationship, the father does not exist. "Ha-isha ve-yeladeha" means that the child forms a unit with the mother, to the exclusion of any other relationship. The gemara uses an extremely vivid expression for this: "the embryo in the womb of a shifcha is like an embryo in the womb of an animal."
This expression seems to reflect the derivation mentioned on 68a, "am ha-domeh le-chamor." This derivation and the explicit comparison to an animal are found in the gemara only in regards to eved but not in regards to nokhri. Does that mean that a child of a mamzer-nokhrit would be a mamzer, together with his being a nokhri, even according to R. Tarfon?
The answer is that mamzerut can only apply to a Jew. A slave is a kind of Jew, at least partially. Hence, R. Eliezer thinks he can be a mamzer as well. Mamzerut is a taint on kedushat yisrael. However, being non-Jewish simply excludes the possibility of being a mamzer. (This resembles R. Chaim's claim two weeks ago that only a kohen can be a challal.)
A possible result of this distinction could involve "pru u-revu." R. Yochanan (Yevamot 62a) states that a ger who has had children before his conversion is not obligated to have more afterwards, even though the children are not Jewish and are not related to him by the principle of "ger she-nitgayer ke-tinok she-nolad dami" (a convert is like a new-born child). Obviously, R. Yochanan maintains that the obligation of pru u-revu depends on the FACT that you had children, not on a halakhic relationship between you. However, an eved who is freed is obligated to have children, even though he fathered children when he was an eved (ibid.). Accordingly, it is possible that a Jew who fathered a child by a nokhrit would fulfill pru u-revu; whereas if he had them with a shifcha, he would not. (The comparison between a nokhri who subsequently converts and a Jew who marries a nokhrit is debatable - think about it.)
[It follows from what I said above that in some respects an eved has a lower status than a nokhri. This reflects the ambivalent attitude of Chazal to slaves and slavery. On the one hand, the slave is an at least partial Jew, obligated in some mitzvot and possessing a degree of kedushat yisrael. On the other hand, he has achieved this status not in his own right but by negating his independent status altogether and becoming the property of a Jew. He hasn't risen to a higher status, he has actually descended, having so small a degree of independent worth that he is able to "absorb" partially the status of his owner. The comparison of an eved and a "beheima," an animal, reflects that Chazal felt that a negation of freedom is a negation of human dignity and worth. In terms of yichus, of family ties and relations, this lack of freedom is equivalent to a deficiency in his humanity. An eved has no family, because family ties depend on a degree of human dignity he doesn't possess.]
You might ask - if R. Tarfon's suggestion is based on the assertion that the child is not legally the mamzer's son, and it is as though he didn't bear him, what's the point of the entire suggestion? A mamzer can not really have a son who is not mamzer, since the only way he won't be a mamzer is if he isn't, halakhically speaking, his son. This is especially true if my assertion in the previous paragraph - that the father (mamzer, in this case) has not fulfilled pru u-revu, is correct. The simple answer is that R. Tarfon is addressing the human problem of the mamzer and the halakhic relationship between the child and father does not exhaust the totality of this relationship. He has produced a son; it is possible that the halakha does not recognize this fact, but R. Tarfon recognizes that this solves, at least partially, a very real problem of the mamzer. This is beyond the scope of this shiur, as it touches on the relationship of halakhic reality and empirical reality, a question of halakhic philosophy rather than of Talmud.
2. Mamzer-shifcha. The conclusion of the gemara is that a mamzer is permitted to marry a shifcha, even though a kasher Jew may not. The fact that a mamzer may marry a mamzeret is not relevant to this conclusion. The prohibition of mamzer is "lo yavo mamzer BI-KEHAL HASHEM." Only those who are members of the kehal Hashem are prohibited. By definition, it appears, one who is prohibited to enter kehal Hashem is not a member of kehal Hashem. Hence, a mamzer is not a member of kehal Hashem, so he is permitted to marry a mamzeret. For that reason, it is also clear that the shifcha is permitted, from her point of view, to marry the mamzer. She is not a member of kehal Hashem, so mamzerut is not prohibited to her. But why is avdut - the state of the shifcha - permitted to the mamzer. Avdut isn't prohibited to kehal Hashem, but to Jews - and the mamzer is fully Jewish.
The Rashba here strengthens this question by noting that a mamzer is of course forbidden to marry a nokhrit. He then compares mamzer to ger. A ger (according to R. Yehuda - 67a) is permitted to marry a mamzerut, as he is not a member of kehal Hashem. Nonetheless, he is forbidden to marry both a shifcha and a nokhrit. The reason obviously is that the latter issurim are not kahal issurim but simply Jewish issurim. So why is a mamzer, who despite not being a member of kahal is nonetheless forbidden to marry a nokhrit for the same reason as a ger is forbidden, permitted to marry a shifcha.
The Rashba cites Rabbeinu Tam as answering:
"A mamzer is obligated by every ordinary prohibition. Shifcha, however, is different. The Torah did not write, 'Do not marry a shifcha,' but rather expressed this prohibition with the term 'kadeshut' - 'lo yehei kadesh' (There shall not be a kadesh from among the people of Israel). This excludes a mamzer, who is himself a 'kadesh' as he is a product of 'kadeshut' and his conception is in sin."
There is no explicit prohibition on shifcha in the Torah. The Rambam here is referring to the verse in Devarim (23:18) 'Lo yehi kadesh mi-benei Yisrael.' The word kadesh (the root means holy) is not a common one. (In Bereishit 38:21, kedeisha means a prostitute). Onkelos translates this verse as "A Jewish man shall not marry a slavegirl." Notice - the shifcha is not called a kadesh, the Jewish man who marries her is called a kadesh. What Rabbeinu Tam is pointing out is that this prohibition is unlike any other. It isn't the status of the shifcha that is the problem, it is the status of her mate (kadesh apparently means 'wanton'), as a result of the union with her that is the problem. A man degrades himself by having a relationship with a slave (see the Ramban on the verse for a fuller explanation). Hence, Rabbeinu Tam claims, a mamzer, who is already degraded because he was conceived in sin, cannot degrade himself more and the prohibition does not apply to him. In other words, an "ordinary prohibition," i.e., a prohibition to perform a given act, applies to a mamzer. Here it is not the act which is prohibited (Do not marry a shifcha) but the effect (Do not become a kadesh by marrying a shifcha). One who is already in a state of kadesh is therefore not included in the prohibition. Rabbeinu Tam is advancing two points.
1) A particular understanding of issur shifcha, based on Targum Onkelos.
2) The claim that a mamzer is "himself a kadesh," because his conception arises from a sexual prohibition.
The Rambam (Issurei Bi'a 12:11) apparently holds that issur shifcha is in fact only mi-derabanan. Although his language in chapter 12 is equivocal, later (15:4) he states explicitly that a mamzer may marry a shifcha because the Sages decide to suspend the prohibition in order to allow him to take advantage of R. Tarfon's suggestion. All Rishonim disagree with the Rambam on this point.
Chapter 12 in the Rambam deals exclusively with the prohibitions of nokhri. The Rambam introduces shifcha by writing: "Slaves ... have left the category of goyim but have not entered the category of yisrael. Therefore, a shifcha is prohibited ..."
It is clear that according to the Rambam, shifcha is a type of nokhrit and that is the general category to which this prohibition belongs. Since a mamzer is prohibited to marry a nokhrit, it follows that he should be prohibited to marry a shifcha. The Rambam's answer is that the Sages have excepted this case from what is, technically, only a rabbinic prohibition, in order to allow the mamzer to take advantage of the only option he has to bear legitimate children.
Summary: According to the Rambam, shifcha is a rabbinic extension of nokhri (though, as the Rambam adds in halakha 13, a particularly serious extension).
According to Rabbeinu Tam, shifcha is prohibited since relations with her result in the man being classified as a 'kadesh.'
3. See the Rashba s.v. De-minsav. The gemara states that R. Tarfon would not have actually suggested a course of action to a mamzer if it involved the commission of a transgression. From this, we wish to conclude that a mamzer may marry a shifcha. The gemara suggests an alternative - that the mamzer steal, and then he will be sold as an eved ivri, who is surely permitted to marry a shifcha. The Rashba asks: How could R. Tarfon suggest that the mamzer steal, which is also a transgression? After two technical answers which basically agree that R. Tarfon could not suggest this alternative, the Rashba writes: "It is possible that under these circumstances it is permissible in order to legitimize his descendants." The Tosafot Rid adds that the suggestion includes the necessity that he return whatever he steals. The Rashba is here suggesting that if he steals (and presumably repays), although this is technically a transgression, it would be permitted for the purpose of legitimizing the descendants of the mamzer. Stealing is first of all an injury to another. By paying it back, this aspect of the crime is ameliorated. But stealing is also a technical transgression (see Rambam, Hilkhot Geneiva 1:2: "It is forbidden to steal as a joke, or with the intent to return the object, or to pay for it - all is forbidden, that he not habituate himself in these things"). The Rashba is suggesting that without the aspect of injury, stealing is permitted for a greater good.
4. Next mishna. Netinim. The Netinim are the descendants of the Gideonites. They are prohibited rabbinically (beit din of King David) to marry Jews. From the fact that a mamzer may marry a Natin, the Rashba (s.v. Giri) derives that it is not an extension of the issur nokhri. He explains that the issur nokhri can apply only to a real non-Jew, because of "ki yassir et binkha mei-acharai" - the children are lost to idolatry or an idolatrous culture. Even eved is similar, since he is not fully Jewish and not obligated in all mitzvot (i.e., idolatry doesn't mean the worship of idols necessarily, but a lesser degree of kedushat yisrael). A Natin, however, is a ger, fully Jewish. If he is prohibited, it is a "psul," like mamzer, and all psulim are permitted to marry each other. According to the Rashba, although Netinim were servants of the Temple, they weren't actually slaves, but only had a psul. (See the Rambam, Issurei Bi'a 12:22-24).
This week should be used to learn the aggadic section (up until the end of 72b). There is no necessity to finish it all in one week; however, next week, we shall begin from the sugya that starts at the bottom of 72b ("Tanu Rabbanan..."). For next week's shiur, if I am able to write it, I will have a few general comments on some of the statements of the aggada. In advance, let me just draw your attention to the section beginning on 70b ("Ko ha-nosei isha le-shum mammon...") - 71a ("mishpacha she-nitme'a nitme'a"), which is about the importance of yuchsin, including the Tosafot (70b; s.v. Kashim). Daf 70b-72a is mostly concerned with local Babylonian society and geography. The last page (72b, second half) returns to the general discussion of yuchsin.
Finally, aside from the serious issues raised in these gemarot, I hope you notice the humor of the story of R. Yehuda and R. Nachman (and his wife, Yalta) on 70a-70b. Chazal intended you to enjoy it.