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Who is a Jew – from the Bible to the Beit Din

November 16, 2010 – 2:07 pm18 Comments

A Karaite Jew in Jerusalem. Source: IllCallBaila.blogspot.com

By Simon Holloway

It was about two years ago now. I was having lunch with a friend and fellow contributor to Galus, when he asked me the big question: “What’s your background?” Well, my mother is from Hungary and she moved here with her family after the Hungarian Revolution, which followed swiftly on the heels of the Holocaust. ” And your father?” My father is a fourth or fifth-generation Australian. His parents were proud Anzacs and his ancestors were Poms. “Were they Jewish?” he asked me. At some point no, although we don’t know when that changed. One of his father’s forebears married a Jewish lady and, while he bequeathed his name, she bequeathed her religion. “Ah,” he tells me, having obviously misunderstood. “You’re half-Jewish.”

Now, I’m not sure which part of the story he didn’t understand, but it doesn’t really matter. Who is a Jew remains today a deeply complicated question, and an incredibly interesting one. What makes it especially fascinating is the fact that a significant portion of the world’s Jewish population don’t think it’s complicated at all. A Jew, quite simply, is somebody whose mother is Jewish, or who converted to Judaism. Simple. But here’s a question: how do you know that your mother is Jewish? Well, it’s a simple question and it has a simple answer. Somebody’s mother is Jewish if her mother is Jewish, or if she converted to Judaism. You can see where I’m going with this.

There’s an inane assumption, floating around and continually resurfacing in this context, that the terminus a quo of the whole business is Abraham. My mother is Jewish because her mother is Jewish, and she is Jewish because her mother is Jewish, and I have it on faith that this matrilineal progression goes all the way back to Abraham’s wife, Sarah, or to somebody who converted. I refer to this as an inane assumption because a literal reading of the story that I am referencing would lead me to brand half of this planet with the epithet “Jew”, and I think that we can all agree that would be missing the point.

On the contrary, while Jews do traditionally consider themselves to be descended of Abraham (both ideologically and genealogically), the starting point of this development is actually sixth century Judah. It is around this time, according to the literature that we have at our disposal, that being Judean started to mean being Jewish, and that Jewishness became Judaism. References to “Jews” in the books of Kings, Isaiah and Jeremiah (for example) are more properly references to Judeans. References to the same people in the books of Esther, Daniel, Ezra and Nehemiah are references to Jews. With their most defining feature being a focus on their own pedigree, early Judaism was a faith built less around living in Judah than it was around being descended of other Judeans. Jewishness, in its origin, was more ethnically than philosophically determined from the outset, which may have informed the current halakhic impossibility of departure from the faith.

If I wish, I can choose to embrace the belief that I am saved from biblical law by the grace of God, who affected my salvation through the sacrifice of his son, Jesus. And, with a quick and public bath, I am a Christian. But I am still a Jew. Alternatively, should I be so inclined, I can acknowledge, with almost tautological simplicity, that Allah is the only Allah, that Mohammad was a true prophet of his, and that the revelation that comprises the Qur’an is the final revelation. All I need do is accept this, declare it publically and in Arabic and, voila: I am a Muslim. But I am still a Jew.

Indeed, there is no philosophical system that I can embrace, nor creed that I can recite, that will erase the simple fact that I am descended of sixth century Judeans, or of somebody who converted into Judaism under rabbinic law. I can deny the truth claims of my literature, I can deliberately subvert or ignore the halakha, and I can reject a belief in any number of gods, but I have it on reliable tradition that my matrilineal ancestor either stood before three judges, whom she satisfied with her intention to join the Jewish people, or dwelt within one of the many Israelite towns in the southern kingdom of Judah. That is not something that I can change. As the Talmud states, “a Jew who sins is still a Jew” (bSan 44a).

Nonetheless, there is a significant number of people who have the same familial tradition that I have, but who are told that it doesn’t count. In 1983, in an attempt at reaching out to such people, the Central Conference of American Rabbis produced one of their most controversial decisions. Ruling that Jewishness can be conveyed through the father as well as through the mother, this remains almost thirty years later one of the most abrasive sources of tension between Orthodox and Progressive Jewish communities around the world. Does anybody know why?

In Tractate Kiddushin of the Mishna (3:12), we are presented with a series of four cases, each with distinct examples and distinct rulings. All that the four cases have in common is the fact that they are each concerned with the status of a child:

1. Whenever there is kiddushin (meaning, the possibility of an halakhic marriage) and the two partners are permitted to one another, the offspring assumes the status of the father. The example given is that of a priest, a levite or a regular Israelite who marries the daughter of a priest, a levite or a regular Israelite. Should the father be a priest, irrespective of whether or not he has married the daughter of a priest, his sons are priests and his daughters are entitled to various priestly privileges, like the consumption of consecrated food.

2. What happens when there is kiddushin but the two are not permitted to one another? The example given here is of a high priest who marries the daughter of a regular Israelite, or of a priest who marries a divorcee. In such an instance, rather than assuming the identity of a specific parent, the child is said to adopt the status of whichever parent is “lower” than the other. Should a high priest marry the daughter of an Israelite, his sons are not priests and his daughters obtain no priestly privilege.

What happens, however, when there is no kiddushin – no possibility of an halakhic union? Focusing specifically on women, the Mishna gives a further two examples:

3. Should she have the potential of an halakhic marriage with somebody else, just not with this man, the offspring is a mamzer: a Jew who is without certain basic rights, like the ability to contract kiddushin later in life, but a Jew nonetheless. An example of a union that could produce a mamzer would be the incestuous union of a Jewish man and his sister. She has the potential for kiddushin with another man, but she has chosen to marry a man with whom there is no possibility of an halakhic union at all.

4. Finally, what if she is somebody who has no potential for kiddushin with anybody? This is the Mishna’s fourth and final case, and the examples that are given of this are the non-Jewish woman and the female slave. While we know from biblical law that the children of slaves, born in captivity, are slaves (Exodus 21:4), the Mishna is here introducing something that we could not have deduced from the Bible alone. In the event that a non-Jewish woman, who cannot contract an halakhic marriage with anybody, should marry a Jewish man, the offspring is said to follow her in status and to not be Jewish. There are dissenting voices to this outside of the Mishna (in one case, even as late as the extra-canonical tractate of Avot deRebi Natan), but the halakha follows the opinion that I have detailed here.

As for the sociological basis of this particular halakha, which stands out in contrast against the various patrilineal laws of the Bible and other ancient Near Eastern literature, there are various theories. One particularly well-known (and possibly well-founded) hypothesis is that it lies in the fact that identification of one’s father proves more difficult, in several circumstances, than identification of one’s mother. In a world before DNA testing, the simplest solution is to deny admission to all children whose mothers are not of the Jewish community.

If this is so (and of course it may not be so) then we have another clear example of where the halakha becomes immutable, even in the face of innumerable reasons to reject it. I know many Jews, and have met a great many Jews, but have never once met one who did not know the identity of his or her father. If the essence of Judaism is simply to be descended of Judeans (or of those who converted), then should not a child born with certainty to a Jewish father be accepted? Is it not the same thing?

Of course, it is not the same thing, and for a very simple reason. Judaism is no longer just a culture. It is now also a religion. And, like all religions, Judaism professes immutable claims to truth, and inflexible parameters of faith. Should any item of law become unnecessary, the law remains standing, for it is no longer built upon practical exigency but upon the authority of its own antiquity. What happens when individual groups decry this?

On a strictly political level, the State of Israel deems Jewish for the purposes of aliyah anybody who suits the Nazi definition: one grandparent, either side. Yet even so relaxed a definition comes fraught with complications, as has been evident in the influx of Jews who know nothing of rabbinic Judaism (many Ethiopians being a case in point), or who reject it outright (many Egyptians being another). Indeed, the Egyptians are of particular interest. In rejecting rabbinic law, members of the Karaite community emphasise strictly patrilineal descent. After all, a Jewish sola scriptura would lead you to no other conclusion.

Tensions between rabbinic and non-rabbinic Jews have always been fraught (despite the fact that Karaites once comprised some 40% of the total Jewish population), which makes all the more surprising certain recent halakhic developments. In 1973, former Sephardi chief rabbi Ovadiah Yosef declared Karaites to be Jewish and, despite the objections of prominent Ashkenazi rabbis (notably the Tzitz Eliezer), even permitted marriages between Karaites and Orthodox Jews. While the Karaites might fall under a “grandfather clause” (or a great-grandfather clause, with “great” being to the power of ten), might this decision serve as the harbinger of more solid ties between Orthodox and Progressive Judaism in the future? Or is Progressive Judaism too young and too presumptuous for this to be envisaged?

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