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The Origins of the Matrilineal Principle in Rabbinic Law

  • Shaye J. D. Cohen (a1)

Extract

According to rabbinic law, from the second century to the present, the offspring of a gentile mother and a Jewish father is a gentile, while the offspring of a Jewish mother and a gentile father is a Jew (albeit, according to the Mishnah, a mamzer, a Jew of impaired status). Each of these two rulings has its own history, as I shall show below, but it is convenient to group them together under the general heading of the “matrilineal principle.” Anthropologists and sociologists use the term matrilineal to describe societies in which kinship is determined through the females and not the males. Such societies once existed in ancient Egypt and Mesopotamia, and can still be found in parts of Africa, India, and Polynesia. Although rabbinic society and family law have not yet been studied in the light of modern anthropological and sociological theories, it seems clear that the kinship patterns which characterize matrilineal societies are thoroughly foreign to rabbinic society. With only a few exceptions, rabbinic family law is patrilineal. Status, kinship, and succession are determined through the father. (“The family of the father is considered family, the family of the mother is not considered family,” B. Bava Batra 109b.) Why, then, did the rabbis adopt a matrilineal principle for the determination of the status of the offspring of mixed marriages?

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Research on this paper was supported by a generous grant from the Nisson Touroff Fund of the Jewish Theological Seminary. References to the Mishnah, Tosefta, Babylonian Talmud, and Palestinian Talmud are indicated respectively by M., T, B., and P. followed by the name of the tractate. Unless otherwise noted, all translations in this essay are mine. This paper has benefited from the suggestions and advice of Mr. David Cherry, Mr. Leonard Gordon, and Professor Sarah Pomeroy. A capsule version of this essay has appeared in Judaism 34, 1 (Winter 1985): 5–13.

1. A mamzer is a male or female Jew (the feminine form of the noun is mamzeret) who, because of the circumstances of his or her birth, may not marry a native-born Jew; if he or she does, the children are mamzerim. I leave mamzer untranslated because the English terms “illegitimate” and “bastard” derive from a completely different legal system and do not accurately reflect the meaning of the Hebrew.

2. Koschaker, Paul, “Fratriarchat, Hausgemeinschaft und Mutterrecht in Keilschriftrechten,” Zeitschrift für Assyrologie 41 n.s. 7 (1933): 189;Schneider, David M., Matrilineal Kinship (Berkeley: University of California Press, 1961); in general see Goody, Jack, ed., Kinship: Selected Readings (Baltimore: Penguin, 1971) and Goody, Jack, Comparative Studies in Kinship (Stanford: Stanford University Press, 1969), chap. 3. For recent kinship studies seeOden, Robert A., Jr., “Jacob as Father, Husband, and Nephew: Kinship Studies and the Patriarchal Narratives,” Journal of Biblical Literature 102 (1983): 189205.

3. This article is the fourth in a series about conversion and intermarriage in antiquity; see also “Conversion to Judaism in Historical Perspective: From Biblical Israel to Postbiblical Judaism,” Conservative Judaism 36, no. 4 (Summer 1983): 3145; “From the Bible to the Talmud: the Prohibition of Intermarriage,” Hebrew Annual Review 7(1983): 23–39; “Was Timothy Jewish (Acts 16:1–3)? Patristic Exegesis, Matrilineal Descent, and Rabbinic Law,” Journal of Biblical Literature (in press). The most important scholarly contributions to the study of the matrilineal principle are: Aptowitzer, Victor, “Spuren des Matriarchats im juedischen Schrifttum,” Hebrew Union College Annual 4 (1925): 207240 and 5 (1926): 261–297;Epstein, Louis M., Marriage Laws in the Bible and the Talmud (Cambridge, Mass.: Harvard University Press, 1942), esp. pp. 174 and 194–197; Boaz Cohen, “Some Remarks on the Law of Persons in Jewish and Roman Jurisprudence,” Proceedings of the American Academy for Jewish Research 16 (1946–47): 1–37, esp. 12–24; and Lawrence Schiffman, “At the Crossroads: Tannaitic Perspectives on the Jewish-Christian Schism,” in Jewish and Christian Self-Definition, vol. 2, Aspects of Judaism in the Greco-Roman Period, ed. E. P. Sanders et al. (Philadelphia: Fortress Press, 1981), pp. 115–156, esp. 117–122. The abundant literature spawned by the debate in the State of Israel on the question “Who is a Jew?” (see, e.g., Baruch Litvin and Sidney Hoenig, eds., Jewish Identity: Modern Responsa and Opinions[New York: Feldheim, 1965], a book brought to my attention by Rabbi Wolfe Kelman) is important for the student of contemporary Jewry but not for the historian of antiquity. The same judgment applies to the recent pronouncements of the Reform movement justifying a patrilineal or nonlineal system (see the Winter 1983 issue of the Journal of Reform Judaism).

4. A convenient collection of the material is Patai, Raphael, Sex and Family in the Bible(New York: Doubleday, 1959), pp. 3135. It was first collected in modern times by Löw, Leopold, “Eherechtliche Studien,” Gesammelte Schriften III, ed. Löw, Immanuel (Szegedin, 1893; reprint ed., Hildesheim: Olms, 1979), pp. 112143.

5. Most legal systems of antiquity shared this attitude. See, e.g., Bickerman, Elias, “La conception du mariage à Athènes,” Bulletino dell' Istituto di Diritto Romano 78, n.s. 17 (1975): 128.

6. See, e.g., Gen. 21:10, 22:20–24, and 25:5–6; Judg. 9:1–5 and 11:1–2; cf. Exod. 21:4. There are many parallels in other legal systems of antiquity; see Driver, G. R. and Miles, John, The Babylonian Laws, 2 vols. (Oxford: Clarendon Press, 1952), 1:350–353. A notable exception is Egyptian law, according to which the offspring of a slave mother and a free father is legitimate (Diodorus of Sicily 1.80.3).

7. On Deut. 7:4 see below.

8. The Bible seldom notices idolatrous acts by Israelite women: see 2 Kings 23:7; Jer. 7:18 (the whole family); and Ezek. 8:14.

9. On Periclean Athens see below. Matroxenoi, “those born of foreign mothers,” is an attested Greek word (Pollux, Onomasticon 3.21 [E. Bethe ed., vol. 1, p. 161]; see the passages listed in Bethe's note, especially the scholion to Euripides, Alceslis 989); patroxenoi, “those born of foreign fathers,” is unattested. The Digest gives the Roman version of the matrilineal principle but omits the Lex Minicia (see below). (Mr. David Cherry suggests that it was omitted because the Constitutio Antoniniana of 212 C.E., which conferred Roman citizenship on virtually all inhabitants of the empire, effectively rendered it obsolete.)

10. On matrilocal marriage in general, see Westermarck, Edward, The History of Human Marriage, 3 vols. (New York: Allerton, 1922), 1:296297. On matrilocal marriage in the ancient Near East, see Koschaker, “Fratriarchat, Hausgemeinschaft und Mutterrecht,” pp. 84–85; Driver, G. R. and Miles, John C., The Assyrian Laws (Oxford: Clarendon Press, 1935), pp. 134142; Neufeld, E., Ancient Hebrew Marriage Laws (London and New York: Longmans, Green, 1944), pp. 5667; idem, The Hittite Laws (London: Luzac, 1951), pp. 126, 140–141, and 151–153;Plautz, Werner, “Zur Frage des Mutterrechts im alten Testament,” Zeitschrift für die alttestamentliche Wissenschaft 74 (1962): 930, esp. 18–26; Patai, Sex and Family in the Bible, pp. 52–53.

11. For the legitimation of the offspring of a slave father and a free mother, Driver, cf. and Miles, Babylonian Laws, 1:353–356.

12. The verse carefully contrasts the “son of an Israelite woman” with the “Israelite,” thereby implying that the former was marked by a social stigma.

13. 1 Kings 7:13–14, cf. 2 Chron. 2:12–13.

14. On the citizenship law of Pericles, see Lacey, W. K., The Family in Classical Greece (Ithaca, N.Y.: Cornell University Press, 1968), pp. 100103;Hannick, Jean-Marie, “Droit de cité et mariages mixtes dans la Grèce classique,” L'antiquité classique 45 (1976): 133148;Davies, John K., “Athenian Citizenship: The Descent Group and the Alternatives,” Classical Journal 73 (1977): 105121;Patterson, Cynthia, Pericles' Citizenship Law of 451–50 B.C. (New York: Arno, 1981). The parallel between Pericles and Ezra was observed by George Foot Moore, Judaism in the First Centuries, 3 vols. (Cambridge: Harvard University Press, 1927), 1:20, and byZeitlin, Solomon, The Rise and Fall of the Judean State, 3 vols. (Philadelphia: Jewish Publication Society, 1968–1978), 1:17.

15. He briefly mentions these marriages in his penitential prayer (Ezra 9:12) but otherwise ignores them. So too his contemporary Malachi (2:11–16).

16. Tchernowitz, Chaim, History of Hebrew Law [Hebrew], 4 vols. (New York: no publisher, 1943–1944), 3:108111;Belkin, Samuel, “The Problem of Paul's Background,” Journal of Biblical Literature 54 (1935): 4748; Zeitlin, Judean State, 1:27, referring to Zeitlin, Solomon, “The Offspring of Intermarriage,” Jewish Quarterly Review 51 (1960): 135140; Schiffman, “At the Crossroads,” p. 121. The amora R. Haggai also deduces the matrilineal principle from the Ezra story (see below).

17. Ezra 7:25, reading ammak or ammeh instead of amma. See Ginsberg, H. L., The Israelian Heritage of Judaism (New York: Jewish Theological Seminary, 1982), p. 17, n. 18.

18. Christophilopoulos, Anastasios, Dikaion kai Historia (Athens: no publisher, 1973), p. 69 (part of his article “Marriage with a Foreign Woman According to Ancient Hellenic and Hellenistic Law” [Greek]);Vatin, C., Récherches sur le mariage et la condition de la femme mariée à l'eépoque hellénistique (Paris, 1970), pp. 120122; and the studies listed in note 14 above. Isaeus, Orations 8.43 summarizes the Periclean law as follows, “If our mother was not a citizen, we are not citizens” (quoted by Lacey, Family in Classical Greece, p. 282, n. 14).

19. This was sensed by Thomas de Vio Caietan (1469–1534) in his commentary on Ezra 10:5, 11, and 44; see his Opera Omnia quotquot in Sacrae Scripturae Expositionem Reperiuntur,5 vols. (Lyons: Jacobus et Petrus Prost, 1639), 2:370–371. Similarly, according to some Karaite exegetes Ezra did not even attempt to expel the children; see below. Some modern Jewish apologists explain that Ezra did not regard the women and their children as gentiles; he was merely purifying the lineage of the aristocracy from admixture with Jews of poor pedigree. See Heinrich Graetz, Geschichte der Juden, 2d ed. (Leipzig: O. Leiner, 1902), II, 2, pp. 130–136 (with the critique of Yehezkel Kaufmann, History of the Religion of Israel, vol. 4, From the Babylonian Captivity to the End of Prophecy, trans. C. W. Efroymson [New York: Ktav, 1977], pp. 340–342);Rosenthal, F., Monatschrift für die Geschichte und Wissenschaft des Judentums 30 s(1881): 120122; and Lewi Freund, “Über Genealogien und Familienreinheit in biblischer und talmudischer Zeit,” in Festschrift Adolf Schwarz, ed. Victor Aptowitzer and Samuel Krauss (Berlin and Vienna: R. Löwit, 1917), pp. 168–169.

20. Of course, one could argue that this fact is merely further testimony to Ezra's relative lack of success; see, e.g., Smith, Morton, Palestinian Parties and Politics That Shaped the Old Testament (New York: Columbia University Press, 1971), pp. 121122. The documents of Elephantine describe several cases of intermarriage, but the matrilineal principle is nowhere in evidence. SeePorten, Bezalel, Archives from Elephantine (Berkeley: University of California Press, 1968), pp. 148149, 203–213, and 252–258.

21. Urbach, E. E., The Sages, trans. I. Abrahams, 2 vols. (Jerusalem: Magnes Press, 1979), 1:335336.

22. Ginzberg, L., Legends of the Jews, 7 vols, reprint ed. (Philadelphia: Jewish Publication Society, 1967–1968), index, s.v. “conversion” and “proselytes”;Aptowitzer, Victor, “Asenath, the Wife of Joseph,” Hebrew Union College Annual 1 (1924): 239306; and Bamberger, Bernard, Proselytism in the Talmudic Period (1939; reprint ed., New York: Ktav, 1968), pp. 174–217.1 hope to study these techniques elsewhere.

23. Charles, R. H., Apocrypha and Pseudepigrapha of the Old Testament, vol. 2, Pseudepigrapha(Oxford: Clarendon Press, 1913), note ad loc.

24. In some midrashim, notably Targum Jonathan on Gen. 38:6, she is the daughter of Shem. (Her loyalty to God is indicated in Targum Jonathan and Fragment Targum to Gen. 38:25.) See Johnson, Marshall, The Purpose of the Biblical Genealogies (Cambridge: At the University Press, 1969), pp. 156, 159–162, and 270–272 (who omits Ps.-Philo, Biblical Antiquities9.5). For Philo (On the Virtues 40. 220–222) Tamar plays the same role as Asenath in Joseph and Asenath: she is the perfect archetype of the female proselyte, just as Abraham is of the male. See Marc Philonenko, Joseph et Aséneth (Leiden: Brill, 1968), p. 55.

25. See Aptowitzer, “Asenath.”

26. Rajak, Tessa, “Moses in Ethiopia: Legend and Literature,” Journal of Jewish Studies 29 (1978): 111122, and Shinan, Avigdor, “Moses and the Ethiopian Woman,” in Studies in Hebrew Narrative Art, Scripta Hierosolymitana, vol. 27 (Jerusalem: Magnes Press, 1978), pp. 6678.

27. Akiva, R. in Sifrei Deut. 213 (Finkelstein ed., p. 246); Temple Scroll, col. 63.

28. M. Megillah 4:9 and the statement of R. Ishmael in B. Megillah 25a; see S. Cohen, “Prohibition of Intermarriage.”

29. The translation is the Revised Standard Version.

30. Cohen, S., “Was Timothy Jewish?”;Daube, cf. David, Ancient Jewish Law (Leiden: Brill, 1981), pp. 2526.

31. Israelite mother and gentile father: On the Life of Moses 2.36 § 193 (referring to Lev. 24:10). Israelite father and gentile (or slave) mother: On the Virtues 40 § 224, and cf. Allegorical Interpretation 2.24 § 94 (referring to the offspring of Bilhah and Zilpah); On the Life of Moses1.27 § 147 (referring to the mixed multitude, the offspring of Egyptian women and Hebrew men). In some Greek cities the offspring of a citizen mother and a noncitizen father was a nothos (see Demosthenes, 23 [Against Aristocrates] § 213, referring to Oreus in Euboea), but I think that Philo is using the term in a nontechnical sense: “of impure lineage” or “a product of mixed breeding.” This usage is well attested. Samuel Belkin argues that Philo knew the rabbinic matrilineal principle, but the merits of his argument need not be considered (and they are few) because he mistakenly believes that Philo restricts the term nothos to the offspring of Israelite fathers and gentile mothers. See his Philo and the Oral Law (Cambridge: Harvard University Press, 1940), pp. 233–235. The mistake originates with Heinemann, Isaac, Philons griechische und judische Bildung (Breslau: Marcus, 1932), pp. 313314, but Heinemann, at least, realized that Philo's usage is not compatible with rabbinic law. See too B. Cohen, “Law of Persons,” p. 24, n. 71.

32. Jewish Antiquities 3.12.2 § 276, 13.10.5 § 292, 13.13.5 § 372; cf. 11.3.10 § 71 and Against Apion 1.7 § 35.

33. Jewish Antiquities 16.7.6 § 225, 18.5.1 § 109, 18.5.4 §§ 139 and 141, and 20.7.1–3 §§ 139–147. (Josephus does not say whether Agrippa, the son of Drusilla and the uncircumcised Felix [§ 143], was Jewish.)

34. Herod: Jewish Antiquities 14.1.3 §§ 8–10, 14.7.3 § 121, and 14.15.2 § 403; cf. Eusebius, Ecclesiastical History 1.7.11–14. Joseph Justus Scaliger noticed this problem and solved it by arguing that Herod's mother converted to Judaism; see the Animadversiones in Chronologica Eusebii, p. 149, in his Thesaurus Temporum: Eusebii Pamphili... Chronicorum Canonum... Libri Duo (Leiden: T. Basson, 1606).

35. For a brief history of conversion to Judaism, see S. Cohen, “Conversion to Judaism.” Several scholars have noted that conversion for women developed only after conversion for men: see Tchernowitz, History of Hebrew Law, 1:301–303; Belkin, Philo, p. 235, n. 60; and the chapter on conversion in Daube, Ancient Jewish Law. Elsewhere I hope to study the development of the rituals of conversion (including immersion) and the emergence of nonmarital conversion for women.

36. 1 translate Albeck's text. For representative variants I have checked facsimiles of the following codices: Parma De Rossi 138 and 984, Budapest Kaufmann A 50, Paris 328–329, Leiden Seal. 3 (the most important manuscript of the Palestinian Talmud), and Munich 95 (the most important manuscript of the Babylonian Talmud).

37. All the manuscripts listed in the previous footnote read (ha–)pagum she-bi-shneihen.

38. Albeck's edition uses ve-eizeh zeh to introduce the examples of A and B, and ve-eizo zoto introduce the examples of C and D. Most of the manuscripts are not so exact.

39. “Potential to contract a valid marriage” is the only possible meaning of the term in paragraphs C and D, a point not appreciated by many translators of this Mishnah. See B. Cohen, “Law of Persons,” p. 14. The rabbis do not require marriage of the parents for a child to have the status of its father; see below.

40. The meaning of mamzer in Deut. 23:3 is obscure. See , Neufeld, Ancient Hebrew Marriage Laws, pp. 224227; Encyclopaedia Biblica [Hebrew], vol. 5 (1968), s.v. mamzer, Calum M. Carmichael, The Laws of Deuteronomy (Ithaca, N.Y.: Cornell University Press, 1974), pp. 173–174.

41. See note 6.

42. In his commentary on this mishnah Maimonides tries to answer this difficulty.

43. P. Kiddushin 3:14 64c; cf. B. Kiddushin 73a and parallels. Neither the Babylonian nor the Palestinian Talmud asks why the Mishnah omits the union of an Israelite woman with a gentile or slave. The answer was obvious.

44. This is not, however, the logic of paragraph C; incestuous and various other prohibited relations produce a mamzer, not a fatherless child who follows its mother.

45. See P. Kiddushin 3:14 64d and B. Yevamot 45b (and parallels). The counter-argument in both Talmudim is difficult to understand. That the principle of paragraph C includes male gentiles and slaves seems to be confirmed by M. Gittin 9:2.

46. In medieval times some commentators (notably Rashi) argued that R. Simeon meant that the offspring was not a mamzer but a gentile. See Aptowitzer, “Spuren des Matriarchats,” p. 268. This view, incompatible with B. Yevamot 44b–45b and contradicted by P. Yevamot 4:15 6c (and P. Kiddushin 3:14 64c–d), is a willful distortion of the Talmud and is a product of the medieval period.

47. The manuscripts and testimonia of T. Kiddushin 4:16 provide various readings; see Lieberman's apparatus and commentary.

48. Neusner, J., A History of the Mishnaic Law of Women, 5 vols. (Leiden: Brill, 1980), 5.173 and 200201.

49. Epstein, J. N., Introduction to Tannaitic Literature, ed. Melamed, E. Z. [Hebrew] (Jerusalem: Magnes Press, 1957), pp. 54 and 414–415. See Schiffman, “At the Crossroads,” p. 118.

50. Neusner, Law of Women, 5:68 leaves M. Yevamot 7:5 unassigned. A Yavnean date also fits R. Ishmael's exegesis of Lev. 18:21 (see n. 28). Perhaps the matrilineal principle entered rabbinic Judaism from the marriage regulations of pre–70 sectarianism (cf. Neusner, Law of Women, 5:179–192), but I see no evidence to support this conjecture.

51. On this debate see Cohen, B., “Law of Persons,” pp. 15–19. The dynamics of this debate remain to be investigated. The Talmudim ignore the evidence of 1 Chron. 2:34–35 (see above note 11).

52. The reading of Weiss's edition of the Sifra is confirmed by codex Assemani 66, p. 465 in the facsimile edited by Louis Finkelstein (New York: Jewish Theological Seminary, 1956). See the following commentaries on Lev. 24:10: Naḥmanides (Chavel ed., pp. 162163), Ḥizzekuni (Chavel ed., p. 410), Moshav Zekenim (S. Sassoon ed., p. 396), and Malbim. See Aptowitzer, “Spuren des Matriarchats,” pp. 274–277. Rashi on Lev. 24:10 had no difficulty with the Sifra, since he thought that the offspring of a Jewish mother and a gentile father was a gentile; see note 46. The end of T. Eduyyot refers to Lev. 24:10, but the text is corrupt.

53. Fathers According to Rabbi Nathan, version A, chap. 16 (Schechter ed., p. 32a). Aptowitzer's interpretation (“Spuren des Matriarchats,” pp. 266–267) is far-fetched: R. Zadok feared that he might father a gentile son who might, in turn, marry a Jewish woman and father mamzerim. See the ingenious suggestion of Heinemann, I., Zion 4 (1939): 284, n. 55 (mamzer is here used as a translation of the Greek nothos) and the discussion ofHerr, M., Studies in Aggadah and Folk Literature, Scripta Hierosolymitana, vol. 22 (Jerusalem: Magnes Press, 1971), p. 137. Some medieval commentators found the same view in the statement of R. Asi in B. Yevamol 16b, “A gentile who betroths [a Jewish woman] at this time–we suspect that the betrothal might be valid because he might be a descendant of the ten lost tribes.” See the Tosafot ad loc. with the comments of Halivni, D. W., Sources and Traditions: A Source-Critical Commentary on Seder Nashim [Hebrew] (Tel Aviv: Dvir, 1968), pp. 703704, on B. Kiddushin68a.

54. P. Kiddushin 3:14 64d; P. Yevamot 2:6 4a; Genesis Rabbah 7:2 (Theodor-Albeck ed., pp. 51–52); and parallels. O. Irsai suggests a different interpretation of Jacob's argument: Jacob regarded the child as a convert to Judaism but believed that a child convert could be circumcised on the eighth day even if it was a Sabbath. See Irsai, O., “Ya'akov of Kefar Niburaia–A Sage Turned Apostate” [Hebrew], Jerusalem Studies in Jewish Thought 2, no. 2 (1982/1983): 153168, esp. 157–163. (1 am grateful to Dr. Marc Hirshman for this reference.)

55. The evidence for the practices of the nonrabbinic Jews of antiquity is meager. If gentiles were allowed to erect epitaphs in the Jewish catacombs for their relatives who had converted to Judaism, the sepulchral inscriptions of Rome provide no instance against the rabbinic matrilineal principle. See Leon, H. J., The Jews of Ancient Rome (Philadelphia: Jewish Publication Society, 1960), appendix, inscriptions 68 and 222. Compare nos. 256 and 462; no. 21 is difficult to understand, matrilineal principle or no. According to the Karaites the child of a gentile mother and a Jewish father is a Jew. Therefore, they argued, Ezra expelled the foreign women (because they had not converted to Judaism) but did not expel their children (since they, like their fathers, were Jewish). SeeRevel, Bernard, “The Karaite Halakah,” Jewish Quarterly Review 3 (1912–1913): 375376. Compare the latter-day apologists for Ezra (n. 19). (The Karaites followed the rabbis in presuming that the Bible knew the institution of conversion for women; see, e.g., Aaron b. Joseph the Karaite, Sefer ha-Mivḥar [Eupatoria, 1835], p. 17b, commentary on Deut. 21:10–11 [the law of the female war captive; see above n. 27].)

56. In the Babylonian version the anonymous redactor (the selam) quotes Deut. 7.3, thereby splitting R. Simeon's exegesis in half.

57. The reading in P. Kiddushin 3:14 64d is confirmed by codex Leiden Seal. 3. The parallel in P. Yevamot 2:6 4a (even in codex Leiden Seal. 3), however, omits the phrase “Do not give your daughter to his son.” Since scribes often exercised great freedom in copying biblical quotations in the Talmud, my argument is, at best, suggestive.

58. Targum Neofiti, Targum Jonathan, Targum Onkelos, and Saadiah Gaon, followed by the new (1962) Jewish Publication Society version, understand “he shall turn” to mean “they shall turn” (Neofiti even supplies a subject, “their daughters shall turn”). Most of these also take “son” to be the equivalent of “sons” (“children” in the JPS version). Rashi's exegesis is followed byMeyuḥas, R.Eliyahu, b., Commentary on the Book of Deuteronomy, ed. Katz, Yehiel [Hebrew] (Jerusalem: Mosad ha-Rav Kook, 1968), pp. 2728; Rabbenu Tarn's exegesis is followed by R. Joseph Bekhor Shor in his Torah commentary, ed. Joseph Gad, 3 vols. (Jerusalem: no publisher, 1959), 3:16 (= Der Pentateuch Kommentar des Joseph Bechor-Schor zum fünften Buche Moses, ed. Alfred Zweig [Breslau: Koebner, 1914; reprint ed., Jerusalem: Makor, 1978], p. 26), by Hizzekuni (Chavel ed.), and by Aaron b. Joseph the Karaite, Sefer ha-Mivḥar, p. 6b (who discusses two other interpretations as well).

59. Medieval rabbis continued the exercise; see, e.g., the Sheiltot de Rav Aḥai Gaon, chap. 25 (ed. Samuel Mirsky, vol. 1 [Jerusalem, 1961], pp. 158–163), and B. M. Lewin, ed. Ozar ha-Ge'onim, vol. 9, Kiddushin (Jerusalem: Mosad ha-Rav Kook, 1940), p. 167, § 376. Some medieval rabbis were not convinced by any of these proof-texts; see the comment by R. Israel in the Responsa of R. Asher b. Yehiel, § 55.9 (Vilna, 1881, p. 52c).

60. Some modern Jewish apologists imply that the matrilineal principle really is to be found in the sacred text. See S. D. Luzzatto, Commentary to the Pentateuch [Hebrew] (1871; Tel Aviv: Dvir, 1965), p. 520; Hoffmann, David, Das Buch Deuteronomium, 2 vols. (Berlin: Poppelauer, 1913–1922), 1:91; andHertz, J. J., The Pentateuch and Haftorahs (1936), 2d ed. (London: Soncino Press, 1961), p. 775.

61. See note 19 above.

62. Paulus' comment is usually summarized by the phrase mater certa, pater incertus. I have not succeeded in finding a scholarly presentation of this view, but I believe that it is widely accepted. At the 1983 meeting of the Society of Biblical Literature, it was advanced by several people during the discussion of this paper. See below for another widely held view which lacks scholarly documentation.

63. See , Zeitlin, “Offspring of Intermarriage,” p. 136. M. Ketubbot 1:910 is addressing the status of the woman, not that of the child, but the implications are clear.

64. I have not found a scholarly presentation of this view, but it too was advanced during the discussion at the 1983 meeting of the Society of Biblical Literature.

65. Robertson, Priscilla, An Experience of Women: Pattern and Change in Nineteenth Century Europe (Philadelphia: Temple University Press, 1982), p. 648, index, s.v. “child custody” (I owe this reference to Professor Paula Hyman). Intimacy of motherhood: Lacey, Family in Classical Greece, p. 169 (quoting Xenophon, Memorabilia 2:2:5–10 and Aristotle, Nicomachean Ethics 8:12:3 [1161B]). The rabbis know that a child often “honors” his mother more than his father (B. Kiddushin 3Ob–31a and parallels).

66. Obligation of father to raise his children: M. Kiddushin 4:14 and T. Kiddushin 5:15–16 (Lieberman ed., pp. 297–298). Obligation of mother: T. Niddah 2:4–5 (Zuckermandel ed., p. 642) and M. Ketubbot 5:5. The intimacy of motherhood did have legal implications for the treatment of animals: Sifra on Lev. 22:28 (Weiss ed., p. 99b) and B. Bekhorot 45. “The mother is not of kin to her child,” writes Henry Swinburne, A Treatise of Testaments and Last Wills(1591), quoted by Laurence Sterne, The Life and Opinions of Tristram Shandy, vol. 4, chap. 29. Some rabbis knew that a fetus was formed from matter contributed by both the mother and the father (see B. Niddah 30b [and parallels] with the comments of Needham, J., A History of Embryology, 2d ed. [Cambridge: At the University Press, 1959], pp. 7779), but knowledge of embryology had no impact on the development of law.

67. Wetstenius, J. J., Novum Testamentum Graecum, 2 vols. (Amsterdam: Officina Dommeriana, 1752), 2:552 (commentary on Acts 16:3); Isaac Weil, Prosélytisme chez lesjuifs selon la Bible el la Talmud(Strassburg, 1880), pp. 79 ff., a work which I know only through the citation by Bamberger, Proselytism in the Talmudic Period, pp. 89–90;Mielziner, M., The Jewish Law of Marriage and Divorce (New York: Bloch, 1884), pp. 9597; Epstein, Marriage Laws, and B. Cohen, “Law of Persons.” In his review of Epstein's book in Historia Judaica 6 (1944): 87–90, B. Cohen commented specifically on Epstein's suggestion (p. 89); why did he not refer to it in his own essay on the subject?

68. Taubenschlag, R., The Law of Greco-Roman Egypt, 2d ed. (Warsaw: Państwowe Wydawnictwo Naukowe, 1955), pp. 104108;Crook, J., Law and Life of Rome (Ithaca, N.Y.: Cornell University Press, 1967), pp. 3668 (“The Law of Status“), esp. 40–41; A. Watson, The Law of Persons in the Later Roman Republic (Oxford: Clarendon Press, 1967), pp. 27–28; M. Kaser, Das römische Privatrecht. 2d ed. (Munich: Beck, 1971), §§ 66 I 2, 68 I, 73 II, and 84 II; Joseph Modrzejewski, “Un aspect du 'couple interdité dans Pantiquite: les mariages mixtes dans l'égypte hellénistique,” Le couple interdit: Entretiens sur le racisme, ed. Léon Poliakov (Paris: Mouton, 1980), pp. 53–73, esp. 64–67 (a reference I owe to Professor Roger Bagnall). The major primary texts are: Digesta 1.5; Ulpian, Tituli 5; Gaius, Institutiones 1.48–96. For the law of Claudius, see Tacitus, Annals 12.53.

69. The closest rabbinic approximations to the spurius are the shetuki and asufi (M. Kiddushin 4:1–2).

70. See too Gnomon of the Idios Logos, §§ 39, 46, and 47.

71. The importance of intention in the Mishnah is analyzed and exaggerated by Neusner, Jacob, Judaism: The Evidence of the Mishnah (Chicago: University of Chicago Press, 1981), pp. 270281.

72. See Yobanan, R. in P. Yevamol 2:6 4a and cf. B. Kiddushin 67a; R. Hanina in B. Sanhedrin57b. See the Roman sources analyzed by Kaser, Das römische Privatrecht, § 73 II, andCorbett, P. E., The Roman Law of Marriage (Oxford: Clarendon Press, 1930), pp. 96106. The offspring of a marriage between peregrini might follow the status of the mother if her nationality received a privilegium from the Romans to this effect; see Digesta 50.1.1.2.

73. “When conuhium intervenes [between the father and the mother] the children always follow the father; when conubium does not intervene, they accrue to the status of the mother, except that he who has a noncitizen father and a citizen mother is born a noncitizen, because the Minician law ordains that one born of a noncitizen mother or father follows the status of the lower parent.”

74. Compare cum legitimae nuptiae factae sint, patrem liberi sequuntur (Celsus in Digesta1.5.19).

75. Compare ex eis inter quos non est conubium, qui nascitur... matris condicioni accedit(Gaius, Institutes 1.78).

76. Compare Gnomon of the Idios Logos, § 39 (ta tekna hettoni genei akolouthei).

77. A point unappreciated by Surenhusius, Guilielmus, Seder Naschim sive Legum Mischnicarum Liber qui Inscribitur de Re Uxoria (Amsterdam: Borstius, 1700), p. 377, who translates the Mishnah literally (quocunque in loco obtinent desponsationes et non obtinet transgressio infans sequitur virum, etc.).

78. For the methodological difficulties, see, e.g., Yaron, R., “Jewish Law and Other Legal Systems of Antiquity,” Journal of Semitic Studies 4 (1959): 308331; Zeev Falk, “Zum fremden Einfluss auf das jüdische Recht,” Revue internationale des droits de l'antiquité, 3d series 18 (1971): 11–23; and Bernard Jackson, “On the Problem of the Roman Influence on the Halakah,” in Jewish and Christian Self-Definition, vol. 2, Aspects of Judaism in the Greco- Roman Period, ed. E. P. Sanders et al. (Philadelphia: Fortress Press, 1981), pp. 157–203 (with extensive bibliography).

79. Cicero, De Natura Deorum 3.18 § 45 and Topica 20. Livy 43.3.1–4 (a reference I owe to Mr. David Cherry) seems to imply that the principle was already in force in 171 B.C.E.

80. The status of the offspring of mixed marriages varied from one Greek state to another; see , VatinRécherches sur le manage, pp. 123128 and Hannick, “Droit de cité et marriages mixtes.” In Roman Athens the offspring of an Athenian mother and a slave or noncitizen father was a noncitizen; seeChrysostom, Dio, Orations 15.3 (trans. Wiedemann, T., Greek and Roman Slavery [Baltimore: Johns Hopkins University Press, 1981], p. 225). For the law of the ancient Orient, see n. 10.

81. Heinemann, Joseph, ‘“A Race Similar to an Ass’: The Transformation of a Midrash” [Hebrew], Molad 22, nos. 193194 (October 1964): 456–462. Heinemann observes that the application of this exegesis to halakhic matters characterizes the Babylonian Talmud, not the Palestinian. Heinemann argues that the original purpose of the exegesis was anti-Christian polemic. More convincing is his argument that the exegesis should not be taken as rabbinic “philosophy.” Compare B. Ḥuttin 5a (the sinners of Israel resemble animals) and Morton Smith, “On the Shape of God and the Humanity of Gentiles,” in Religions in Antiquity: Essays in Memory of E. R. Goodenough, ed. J. Neusner (Leiden: Brill, 1968), pp. 315–326.

82. In his commentary on Deut. 7:4 R. Joseph Bekhor Shor observes, “[the offspring of] a gentile or a slave follows the mother, just like an animal.” For the structural parallel between the classification of humans and the classification of animals, see Douglas, Mary, Implicit Meanings (London and Boston: Routledge & ICegan Paul, 1975), pp. 267271.

83. “Seems to ignore” because there is room for doubt; see Kilayim, M. 1:6 with T. Kilayim1:8 (Lieberman ed., p. 204). The rabbis knew that a mule is sterile, but the question had to be treated anyway.

84. In their commentaries on the Samson, Mishnah R. of Sens and R. Yom Tov Lipmann Heller recognize that this is the simple meaning of R. Judah's statement. See too H. Albeck ad loc.

85. Pesaḥim, B. 54a explicitly compares the mamzer (the offspring of incest) to the mule: Anah, the mamzer son of Esau, was the first man to mate a horse with a donkey. See Theodor- Albeck's discussion of Genesis Rabbah 82:14 in their edition, pp. 993–994. (I am grateful to Dr. David Lieber for bringing this passage to my attention.) Cyrus the Great was a “mule” because he was the son of a Persian father and a Median mother; see Herodotus 1.55.2 andFontenrose, J., The Delphic Oracle (Berkeley: University of California Press, 1978), p. 302. C. M. Carmichael suggests that the deuteronomic prohibition of plowing with an ox and an ass together (Deut. 22:10) is a veiled allusion to mixed marriage, especially the Dinah story of Gen. 34. See his Laws of Deuteronomy, pp. 159–163. He expands upon this in his “Forbidden Mixtures,” Vetus Testamentum 32 (1982): 394–415, and Women, Law, and the Genesis Traditions(Edinburgh: At the University Press, 1979), pp. 33–48 and 57–73.

86. See too Kilayim, T. 5:5 (Lieberman ed., p. 222). The discussion of Mandelbaum, Irving, A History of the Mishnaic Law of Agriculture: Kilayim (Chico, Calif.: Scholars Press, 1982) is not entirely helpful. In his commentary on T. Kilayim 1:8, Mandelbaum writes (p. 47, n. 156, referring to p. 324), “Cf. M[ishnah] 8:4, where Judah distinguishes between the mule (the dam of which is a mare) and a hinny (the dam of which is a she-ass) and does not allow one to be mated with the other. T[osefta] (which makes no such distinction) and M[ishnah] thus represent two different traditions of Judah concerning the same issue.” On p. 270, however, Mandelbaum explains R. Judah's opinion of T. Kilayim 5:5 in the light of M. Kilayim 8:4–so the Tosefta is aware of the Mishnah's view. On p. 267, commenting on M. Kilayim 8:4, Mandelbaum writes, “According to Judah two mules which were born of dams of a single kind (and, of course, of sires of a single kind as well) may be paired with one another, for these animals themselves form a single ‘kind.’” His parenthetic remark is far from obvious and needs greater support than an introductory “of course.” B. Ḥullin 78b adduces another instance of the matrilineal principle in the animal kingdom: the prohibition of slaughtering an animal with its young on the same day applies only to a mother and her young. See further Sifra on Lev. 22:28 (Weiss ed., p. 99b) and B. Bekhorot 45b.

87. Neusner, Judaism: The Evidence of the Mishnah, pp. 256–270. Neusner is applying to the Mishnah the interpretation of Leviticus by Douglas, Mary, Purity and Danger (London and Boston: Routledge & Kegan Paul, 1966), pp. 5253

88. This view is widely held, especially in contemporary rabbinic circles, but I have not found its original author; it is repeated by Daube, Ancient Jewish Law, pp. 27–30, but he too does not indicate his source. The rape of women by victorious soldiers was a normal part of ancient warfare (Isa. 13:16 and Zech. 14:2; see Cole, S. G., “Greek Sanctions against Sexual Assault,” Classical Philology 79 [1984]: 97113, esp. 111–113, who refers to Schaps, D., “Women of Greece in Wartime,” Classical Philology 77 [1982]: 203204), and it is likely therefore that many women were raped during the wars of 66–70 and 132–135 (see M. Ketubbot 2:9 with the Talmudim ad loc; and Song of Songs Zuta, end, as presented by Lieberman, S., Greek in Jewish Palestine [1942; reprint ed., New York: Feldheim, 1965], pp. 179184). The question remains whether their plight was the social setting for the emergence of the matrilineal principle.

89. The amoraim reverse the ruling that the child is a mamzer, but the Mishnah is quite clear on this point. See above.

90. Cohen, S., “Prohibition of Intermarriage.” The problem with the lineage of the Jews of Messene, etc., is not intermarriage but mamzerim and improper divorces; see B. Kiddushin71b–72b (and parallels). Prof. Sarah B. Pomeroy impresses upon me that this suggestion should not be rejected so lightly, since the purpose of Pericles' citizenship law (and its subsequent imitations) may have been to improve the marriageability of Athenian women (see Lacey, Family in Classical Greece, pp. 100103).

91. The translation is that of A. D. Godley in the Loeb Classical Library, slightly modified.

92. Bachofen, J. J., Das Mutterrecht: Eine Untersuchung über die Gynaikokratie der alien Welt (Stuttgart, 1861). See Myth, Religion, and Mother Right: Selected Writings of J. J. Bachofen, trans. R. Manheim and introduced by J. Campbell (Princeton: Princeton University Press, 1967). Aptowitzer, in “Spuren des Matriarchats,” forgot to cite Bachofen.

93. Bikkurim, M.1:4–5, B. Yevamot 45b, B. Kiddushin 76b, and elsewhere. These passages are misconstrued by Daube, Ancient Jewish Law, pp. 24–25. Compare Demosthenes 59 (Against Neaera), § 106 (the Plateans who received Athenian citizenship may not become archons, but their children born of native Athenian women may become archons).

94. Kornemann, E., “Mutterrecht,” in Pauly, Wissowa, and Kroll, eds., Realencyclopädie der klassischen Altertumswissenschaft, supplementary vol. 6 (1935), pp. 557558;Bamberger, J., “The Myth of Matriarchy,” in Woman, Culture, and Society, ed. Rosaldo, M. Z.Lamphere, L. (Stanford: Stanford University Press, 1974), pp. 263280; and the works listed by Pomeroy, Sarah, “Selected Bibliography on Women in Classical Antiquity,” in Women in the Ancient World: The Arethusa Papers, ed. Peradotto, J. and Sullivan, J. P. (Albany: State University of New York Press, 1983), pp. 347354. For an erudite but disjointed discussion of Herodotus 1.173, see Pembroke, Simon, “Women in Charge: the Function of Alternatives in Early Greek Tradition and the Ancient Idea of Matriarchy,” Journal of the Warburg and Courtauld Institutes 30 (1967): 135.

95. The rabbinic predilection for uncle-niece marriages is not a relic of a matrilineal society, since most such societies would regard the marriage of a man with his sister's daughter as incestuous. Rabbinic ideology and practice on this matter must be studied anew, especially in light of the Qumran Temple Scroll, col. 66. See Krauss, Samuel, “Die Ehe zwischen Onkel und Nichte,” in Studies in Jewish Literature in Honor of Kaufmann Kohler (Berlin: G. Reimer, 1913), pp. 165175;Ginzberg, Louis, An Unknown Jewish Sect (New York: Jewish Theological Seminary, 1976), pp. 2324; Aptowitzer, “Spuren des Matriarchats,” pp. 232–237; and Baron, Salo, Social and Religious History of the Jews: Ancient Times, 2d ed., 2 vols. (New York: Columbia University Press, 1952), 1:310, n. 20, and 2:230 with 411, n. 14. Even matronymy is occasionally encountered in rabbinic sources (see S. Lieberman, Tosefet Rishonim, 4 vols. [Jerusalem: Bamberger et Wahrmann, 1939], 3:160, and B. M. Lewin, Ojar ha-Ge'onim, vol. 7 Yevamot [Jerusalem: no publisher, 1936], p. 156, § 360; see too Bamberger, Proselytism, pp. 230–231), but in all likelihood this practice too is not a relic of primitive times. Compare A. Christophilopoulos, “Matronymy among the Ancient Greeks” in idem, [Greek], Dikaion kai Historia, pp. 60–67.

96. Why the Talmudim reversed the Mishnah, and why some medieval scholars reversed the Talmud (n. 46), requires investigation.

97. Perhaps this development is connected with a change in the status of the woman in ancient Judaism.

The Origins of the Matrilineal Principle in Rabbinic Law

  • Shaye J. D. Cohen (a1)

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