Kiddushin, Chapter Three, Mishnah Twelve

 

Introduction

This mishnah begins discussing a subject which will be covered throughout the remainder of Kiddushin:  lineage.  We have already encountered throughout Seder Nashim many different genealogical statuses:  priests, Levites, Israelites, converts, mamzerim, natinim and more.  Our mishnah discusses how these lineages are transmitted from generation to generation, namely the issue of whom the child’s lineage follows, that of the father or that of the mother.  We should note that lineage was probably the most important factor in choosing a spouse in the ancient Jewish world and probably was a key factor in the entire ancient world.  Indeed until the modern period many matches between young men and women were made based on lineage.  Lineage largely determined a person’s social standing.  It is sometimes hard to relate to this value for those of us living in 20-21st century America, a country where societal standing is perhaps less based on lineage than almost any nation throughout history.   

The final clause of our mishnah contains the famous principle of “matrilineal descent”—the “Jewishness” of the child follows the mother and not the father.  This principle is surprising since ancient Jewish society was clearly patriarchal.  Men were almost always the heads of their households, the woman would typically leave her family to enter the man’s house, men had custody and overall responsibility for their children etc.  Furthermore, it seems quite clear that the Bible operates on the principle of “patrilineal descent.”  Throughout the Tanakh men marry women of foreign descent and the women assimilate into their husband’s culture and homes (or notoriously fail to assimilate).  The same is true of Second Temple literature such as the later books of the Bible, Josephus and Philo.  How the matrilineal principle came to dominate rabbinic halakhah and literature is a mystery.  There are a few places in rabbinic literature with a hint of a patrilineal principle, but there are few of them and they are usually rejected.  A good discussion of these issues can be found in Shaye Cohen’s excellent book, The Beginnings of Jewishness.

 

Mishnah Twelve

1)      Wherever there is kiddushin and there is no transgression, the child goes after the status of the male.

a)      And what case is this?  When the daughter of a priest, a Levite or an Israelite is married to a priest, a Levite or an Israelite.   

2)      And wherever there is kiddushin and there is transgression, the child goes after the status of the flawed parent.

a)      And what case is this?  When a widow is married to a high priest, or a divorced woman or a halutzah to an ordinary priest, or a mamzeret or a netinah to an Israelite, and the daughter of an Israelite to a mamzer or a natin.   

3)      And any [woman] who cannot contract kiddushin with that particular person but can contract kiddushin with another person, the child is a mamzer.

a)      And what case is this?  One who has intercourse with any relation prohibited in the Torah.   

4)      And any [woman] who can not contract kiddushin with that particular person or with others, the child follows her status.

a)      And what case is this?  The child issue of a female slave or a gentile woman.

 

Explanation

Section one:  In normal marriages the status of the child follows that of the father:  the child of a priest is a priest, of a Levite is a Levite and of an Israelite is an Israelite.

Section two:  However, if the marriage is valid, meaning that the woman requires a get to separate from the man, but the marriage involves a transgression, the child receives the lower status. Therefore, the child of a mamzer or a mamzeret is a mamzer(et).  Furthermore, if the marriage is prohibited but neither parent is “flawed” (such as a mamzer or a natin), a female child from such a marriage is disqualified from subsequently marrying a priest.  For instance the daughter of a priest and divorcee cannot marry a priest.

Section three:   If the marriage is invalid, but the woman could be betrothed to other men, the child is a mamzer.  The example given is incest.

Section four:  This section is where we see the famed “matrilineal principle.”  We should note that it is incomplete.  The mishnah states that the child of non-Jewish woman or slave is not Jewish or is a slave, but it does not specifically address the status of the child of a Jewish mother and male father. 

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