SHIUR BEKIYUT #7: 72b - 73a
R. Yehuda and R. Yosi disagree whether a ger is permitted to marry a mamzeret. A mamzer is forbidden "lavo be-kahal." The disagreement is whether a ger is considered to be part of the "kahal;" R. Yosi says not and R. Yehuda says he is.
Previously, we saw that those prohibited from entering kahal were not themselves part of the kahal. Therefore, "mamzer nosei mamzeret" - a mamzer can marry a mamzeret, or any other psul kahal. Here we find the first - and only - case of someone who is himself permitted to enter kahal but, according to R. Yosi, is not himself a member of kahal.
The derivation depends on the number of times the word kahal appears in the "yuchsin" sections of the Torah. As R. Yehuda's response makes clear, this depends on a prior decision that ger, kohen, levi and yisrael form distinct groups, and for each a separate source must exist to include them in kahal. There seems to be an assumption here that "kahal Hashem" is not synonymous with "am yisrael," including the theoretical possibility that only kohanim, or only the tribe of Levi, would constitute kahal Hashem.
The Torah, of course, is very insistent that we not discriminate against gerim. The gemara (Bava Metzia 59b) claims that this prohibition is reiterated thirty-six times in the Torah. Nevertheless, there are certain areas from which gerim are excluded. Aside from "yuchsin," a ger is disqualified for kingship, for example. This indicates, as we saw last week, that there is a tribal core to knesset yisrael which, in a second stage, others can join. In our context, R. Yosi maintains that the core is called "kahal yisrael." The Torah is protecting the integrity of that core in the laws of yuchsin. A Jew per se is not prohibited from marrying a mamzer (and a ger is a fully-qualified Jew); rather the core-group of Jewish identity must be protected. As it turns out, 90% of all Jews fall in the core category, but the idea that only kohanim would constitute this group indicates that it is not congruous at all with the extent of kedushat yisrael. R. Yehuda, on the other hand, maintains that through conversion the ger becomes a member of the core group as well; in other words, that full kedushat yisrael is the only criterion for membership in kahal yisrael.
1. There are two yuchsin ramifications of being a ger. Here we are discussing the exclusion from kahal. The mishna on 77a discusses the prohibition for a female convert (giyoret) to marry a kohen. Since, as we shall see below, the two laws do not necessarily have the same definition, we shall mainly discuss only the prior one.
A ger is permitted to marry a mamzeret. Although this is a license, it is clear that it results from a disqualification, the exclusion from kahal, a kind of "psul" which results not in issur but heter. Our gemara recounts how R. Zeira gave a lecture in Mechoza before an audience including many gerim, where he stated that a ger may marry a mamzeret. The audience responded by pelting him with their etrogim. Rava, in a similar situation, tried to get them to see it in a more positive light. This merely gives the ger a greater degree of freedom, he argued, with no penalties. The gerim, quite correctly, didn't see it that way. Even if the only result is greater freedom, in the context of halakha this is not exactly an honor.
The question is: what kind of psul is this? For that, we must examine if and how it is transmitted to the next generation.
2. The Rambam (Hilkhot Issurei Bi'a 16:9-11) states that the child of a ger-giyoret is permitted to marry a mamzeret; however, if one of the parents is yisrael (meaning, racially Jewish) the child is prohibited to marry a mamzer. The Maggid Mishna explains: The marriage of the parents is one of "yesh kiddushin ve-ein aveira," hence, by the rules of the mishna (66b) the child should follow the father. So if it is a case of yisrael-giyoret, the child is yisrael. If the marriage is ger-yisraelit, the child SHOULD have had the status of ger. However, states the Maggid Mishna, this is no worse than the case of nokhri-yisraelit, where the child is a fully kasher Jew, following the mother. Hence, here too, the child is yisrael, meaning a member of kahal, and prohibited from marrying a mamzeret.
The Ran (ad loc. - page 30b on the Rif) rejects the comparison with nokhri. In the latter case, the child bears no relation with the non-Jewish father; hence, he can only be Jewish, like his mother. However, a ger is a full-fledged Jew, and of course the child has a filial relationship with him. Hence, in ger-yisraelit, the rule of "le-mishpechotam le-veit avotam" should be followed - a child belongs to his father's family, and the child should have the status "ger." (Notice that the Ran has explicitly adopted one of the possibilities advanced three weeks ago to explain matrilineal determination of Jewish identity).
Both the Ran and the Rambam, agree that the child of yisrael-giyoret is a yisrael; they disagree concerning the child of ger-yisraelit.
3. Text: Many commentators have pointed out that this question appears to be that of R. Yochanan (Yevamot 57a), with the correct answer depending on two interpretations of Rashi.
"R. Yochanan asked R. Oshaya: If a kohen patzua-daka (one who has an injury to his external genitalia, which results in his being prohibited to enter kahal) marries the daughter of gerim, can she eat teruma? (Note: If a giyoret can marry a mamzer, she can marry a patzua-daka as well, as both are psulei kahal.) ... [The question is asked according to] R. Elazar b. Yaakov who says that the daughter of gerim is prohibited to a kohen until she has a yisraelit mother. The question is: KASHRUT is added to her, and she may eat; or KEDUSHA is added to her, and she may not eat."
This enigmatic passage is explained by Rashi in two ways:
a) the case refers to a bat gerim, a daughter of a ger, whose mother was yisraelit. Even according to R. Elazar b. Yaakov, she may marry a kohen. Is this because the presence of a yisraelit mother has added "kashrut" - eligibility for kehuna - but not "kedusha" - membership in kahal, hence she is permitted to marry the kohen patzua-daka and eats teruma as his wife; or has the yisraelit mother conferred "kedusha" - kahal membership - on her, so she is prohibited to marry a patzua-daka? The conclusion: kashrut is added but not kedusha; i.e., the daughter of ger-yisraelit is not included in kahal and is permitted to patzua-daka (and mamzer). This corresponds to the opinion of the Ran.
b) The second interpretation of Rashi assumes that the daughter of ger-yisraelit is prohibited from marrying a patzua-daka (and mamzer); the question is only whether the daughter of ger-giyoret is also prohibited and the conclusion is that the latter is permitted. This accords with the opinion of the Rambam.
4. Logic: Let us return to the logical arguments. The Ran argues that the status of ger should follow the father, according to the first rule of the mishna (66b) and the principle of "le-mishpechotam le-veit avotam." How does the Rambam deal with this?
Rav Chaim (ad loc.) answers that kahal membership (or lack of kahal membership) is not a "family" matter, unlike kehuna. The Rambam maintains that it is a personal aspect of the kedushat yisrael of the individual. Hence, either parent can grant the missing aspect of kedusha. The rule that family is determined by the father simply means that family identity depends on the father. Personal traits can be inherited from either parent.
Inherent in Rav Chaim's explanation is that the special status of a ger is not a positive trait. Mamzerut, for instance, is inherited from either parent; in our case, full kedushat yisrael and kahal membership is inherited from either parent. Being a ger, being excluded from kahal yisrael is not a psul, but an absence of an aspect of kedushat yisrael. Hence, one positive parent completes the picture.
The corresponding explanation of the Ran would be that he holds that kahal membership is a family matter (see last week's shiur again, for the aggadic explanation which corresponds to this). Certain families are included in kahal (as is indicated by the possibility that only kohanim - surely a family identity - are included in kahal). A ger family - as defined by the father - is not included in kahal.
If this is true, then in a case of nokhri-yisraelit, where the child is included in kahal, this is because there is no father at all, as the Ran states. (This was ONE of the possibilities advanced in the shiur on nokhri-yisraelit; namely that the negation of fatherhood is the cause of the child's status). However, this also implies that in the absence of a father, the mother's family is considered to be family. Having defined kahal membership as a family member, the child of a nokhri-yisraelit can only be considered kahal if he is a member of his mother's family. In other words, a child belongs first of all to his father's family, but if there is no father, he belongs to his mother's.
[Rav Chaim rejects this last point, and claims that there is no such thing as a mother's family. His proof is from inheritance, where the principle of father's family is used to categorically deny the possibility of a mother inheriting her son, even if there is no father. (Bava Batra ) As a result, Rav Chaim is forced to claim that the Ran does not maintain that kahal is a family-determined status. Instead, he advances the theory that according to the Ran, membership in the father's family (where, for instance, the father is a ger) prevents the status of the mother from being granted to the child, even though the status is not a family-dependent one. This position is, frankly, not clear to me.]
5. An alternative explanation for the Rambam is suggested by the Avnei Miluim (4:16). The principle "le-mishpechotam le-veit avotam" applies only to yisrael, not to gerim. (This echoes the comparison made by the Maggid Mishna between ger-yisraelit and nokhri-yisraelit. The Ran rejected the comparison, because the Ran maintains that the reason that the nokhri's family is not that of the child is because he is not the child's father, which does not apply to a ger. However, in our shiur three weeks ago, we suggested an alternative explanation, whereby national identity is determined by the mother, unlike family identity which is determined by the father. This can be the opinion of the Maggid Mishna and the Rambam.) The textual basis for this assertion is that the verse "le-mishpechotam le-veit avotam" is found only in regard to the tribes of Israel. But what is the logical basis of this assertion?
In my opinion, the explanation is as follows. The natural connection is between a mother and a son. This is the reason that Jewish national identity is matrilineal. There is a special halakhic unit of mishpacha, of family, that the Torah uses to build kedushat yisrael and which constitutes kahal. However, a ger, who lacks family-determined kedushat yisrael himself, and who is Jewish only by personal individual choice, cannot grant family identity. In other words, mishpacha is not, for these purposes, a natural entity, but is an internal unit of Jewish lineage. Hence, a ger lacks mishpacha in this sense. The entire principle of le-mishpechotam le-veit avotam then cannot apply to him.
Correspondingly, the Ran simply denies this. Mishpacha is a natural entity, applying to Jews, gerim, and nokhrim. The reason it doesn't determine Jewish identity is because the non-Jewish father is not considered to be the father at all. In other words, intermarriage excludes family. However, a ger-yisraelit marriage is a natural halakhic family, and the children belong to the family unit called "ger."
[In regard to the psul kehuna of ger, there is a tannaic disagreement concerning its transmission. When we discuss this - on 77a - we shall have to explain why it differs from the kahal exclusion of ger.]
B. Shtuki (73a)
The gemara explains that a shtuki - a doubtful mamzer (safek mamzer) - is permitted mi-de'oraita to marry a yisraelit and also to marry a mamzeret. There are two different textual derivations for these two conclusions:
a) A safek mamzer is not prohibited (to kahal);
b) A safek mamzer is not kahal (and hence is permitted to marry a mamzeret).
The Rashba states that this gemara is the source of the Rambam's position that ALL cases of doubt are permitted mi-de'oraita. The principle "safek mi-de'oraita le-chumra" (a doubtful case of a biblical law is resolved strictly; i.e., is prohibited) is itself only a rabbinic law. Mi-de'oraita, "safek de-oraita le-kula." This opinion of the Rambam is found in four places: Issurei Bi'a 18:17; Kil'ayim 10:27; Tum'at Met 9:12; Avot Ha-tum'ot 16:1. The Rambam himself does not state explicitly that his source is our gemara. The Rashba argues that in fact the opposite is true. Our gemara presents mamzer as an EXCEPTION to the rule. This is apparent from (1) the need for a special derivation here; (2) the fact that two derivations are necessary for the two sides of the permissibility of shtuki; and (3) the question, "what is the reason that they (Chazal) said a shtuki is prohibited?," with the answer, "it is a ma'ala of yuchsin," which implies that generally there is no rabbinic decree to go le-chumra in doubtful cases. Hence, the Rashba concludes that in all cases other than mamzerut, the Torah mandates that "safek de-oraita le-chumra."
There is a huge literature devoted to this question. (Cf. Shev Shemaita, part 1). Today, I would like only to clarify one aspect of it - the concept of "assur mi-safek," as exemplified by the Maharit's explanation of the Rambam.
The Maharit (cited by the Shev Shemaita 1:1) claims that shtuki is not a typical safek according to the Rambam, by virtue of the derivations cited in the gemara. What need is there for a special heter for shtuki, if every safek is permitted by the Torah? The Maharit answers that the principle of "safek le-kula" means that something is permitted "be-torat safek." Shtuki, by virtue of a special gezeirat ha-katuv, is permitted "be-torat vadai," categorically. The difference is that according to the principle of "safek le-kula," the shtuki could not marry both a yisraelit and a mamzeret; according to the law as explained in our gemara, he may marry them both, even simultaneously.
Let us first examine "safek le-chumra." Pig is prohibited. Suppose we have a piece of meat, of doubtful origin. It is forbidden to eat it. Why? Because it is considered halakhically to be pig? No. Rather, the chance that it may be pig is sufficient to cause us to beware, to be "choshesh." We are forbidden to take a chance, lest it might be pig. There is a simple nafka mina. If someone eats pig, he receives malkot. If someone eats safek chazir, he doesn't, since it is not certain that he has transgresses a Torah prohibition. In other words, the prohibition to eat pig is "be-torat vadai," the prohibition to eat safek pig, EVEN IF IT IS PROHIBITED MI-DE'ORAITA, as the Rashba holds, is "be-torat safek." It isn't a 614th prohibition of the Torah - Do not eat doubtful things. It is a principle of wariness in regard to the 613 mitzvot of the Torah. There is no distinct category called "safek," which has a distinct prohibition of its own.
The Maharit is explaining the same thing in regard to safek le-kula. According to the Rambam, the Torah permits one to eat safek pig, not because there is no issur present, but because, in the real world, one is PERMITTED to take chances. It isn't permitted to eat safek pig per se; rather, it is permitted to eat cow and we may rely on the chance that this piece of meat is cow. Hence, the Maharit claims, according to the principle of safek le-kula, if a shtuki wishes to marry two women, a yisraelit and a mamzeret, it is forbidden, as he is definitely transgressing something, in at least one of the cases. If it is permitted only mi-torat safek, then in this case there is no longer a safek. However, since the Torah explicitly permitted safek mamzer, this is permissibility mi-torat vadai - there is no issur, or even possibility of issur. Consequently, he may marry both women. In effect, there are three types of people: kahal, mamzer and safek mamzer, where the last, although not existing in an ideal world, is a real distinct category in our world.
Whether this explanation is sufficient to explain the Rambam vis-a-vis our gemara will not be discussed here (see the continuation of the Shev Shemaita). The basic point, however, is a very important distinction and must be understood in order to comprehend properly any sugya dealing with sfeikot.
Incidentally, I stated above that ger is the only case of someone who is permitted to enter kahal, but isn't a member of kahal. Technically, this is not true, as shtuki is also permitted to enter kahal, but is not kahal himself. In principle though, the reason that a shtuki is not kahal is because of the safek mamzerut; i.e., the reason for kahal exclusion is kahal prohibition. Ger is excluded, according to R. Yosi, for a different reason altogether.
Gemara 73b - 74a (until the mishna). The gemara is fairly straightforward, though it involves some technical realia which may slow you down.
We shall first complete our discussion of the disagreement of the Rambam and the Rashba concerning "safek de-oraita." The most concentrated discussion of this question is found in the Shev Shemaita 1:1-7 (cf. especially ch. 1-2). Next we shall return to safek mamzer.
Rashba 73b s.v. Kol
Ran ad loc. (30b on the Rif) s.v. Matnitin (the entire section)
[Shev Shemaita 2:16]
Rambam Issurei Bi'a 16:1-2
And now, a simple question. Why isn't every assufi, even one well-cared for (and hence mutar), a shtuki. For a collection of answers (after you wrack your own brain) see Pitchei Teshuva EH 4:41.