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Who is a Jew?

Judaism is matrilineal.  If the mother is Jewish, the child is Jewish.  But was that the case throughout the history of Judaism?  One would think that something this critical would be clearly stated.  Here we are in Leviticus where all the rules regarding relationships are clearly laid out:  whom you can’t marry, whom you can marry, what the breakdown is between Priesthood, Levites, and Beit Israel, each with their own sets of rules, duties and limitations.

But nowhere in Tanach does it state, a child is Jewish because his mother is Jewish.  Is it implied?  Maybe.  And maybe not.   Parashat Emor discusses the roles, duties, and connections incumbent upon the priesthood, then turns to describe the laws of counting the Omer, and the festivals of Shavuoth and Succoth.   But it concludes with a jarring incident in which the son of an Israelite woman and an Egyptian father blasphemes, cursing the name of G-d, which results in his being stoned to death.  This disruption includes the familiar phrase “an eye for an eye, and a tooth for a tooth” – perhaps the most misinterpreted phrase in the entire Bible.  Let’s look at this more closely.

בנ-אשה ישראלית והוא בן-איש מצרי בתוך בני ישראל וינצו במחנה בן הישראלית ואיש הישראלי: ויקב בן-האשה הישראלית  את-השם ויקלל ויביאו אתו אל-משה ושם אמו שלומית בת-דברי למטה-דן: ויניחהו במשמר לפרש להם על-פי ה’

וידבר ה’ אל-משה לאמר: הוצה את-הקלל אל-מחוץ למחנה וסמכו כל-השמעים את-ידיהם אל-ראשו ורגמו אתו כל-העדה: ואל-בני ישראל תדבר לאמר איש איש כי-יקלל אלוהיו ונשא חטאו: וינקב שם-ה’ מות יומת רגום ירגמו-בו  כל-העדה כגר כאזרח בנקבו שם יומת:  ואיש כי יכה כל-נפש אדם מות יומת: ומכה נפש בהמה ישלמנה נפש תחת נפש: ואיש כי-יתן מום בעמיתו כאשר עשה כן יעשה לו: שכר תחת שכר עין תחת עין שן תחת שן כאשר יתן מום באדם כן ינתן בו: ומכה בהמה ישלמנה ומכה אדם יומת: משפת אחד יהיה לכם כגר כאזרח יהיה כי אני ה’ אלוקיכם:

The son of an Israelite woman and an Egyptian man went out amongst the Children of Israel; they fought in the camp, the son of the Israelite woman and an Israelite man.  The son of the Israelite woman pronounced the Name and blasphemed – so they brought him to Moses; the name of his mother was Shlomit, daughter of Divri, of the tribe of Dan.  They placed him under guard to clarify for themselves G-d’s decision.

HaShem spoke to Moses, saying:  Remove the blasphemer to the outside of the camp, and all those who heard him shall lay their hands upon his head:  The entire assembly shall stone him.  And to the Children of Israel you shall speak, saying: Any man who will blaspheme his God shall bear his sin; and one who pronounces blasphemously the Name of HaShem shall be put to death, the entire Nation shall surely stone him; proselyte and native alike, when he blasphemes the Name, he shall be put to death.   And a man – if he strikes mortally any human life, he shall be put to death.  And a man who strikes mortally an animal shall make restitution, a life for a life.  And if a man inflicts a wound in his fellow, as he did, so shall be done to him: a break for a break, an eye for an eye, a tooth for a tooth; just as he inflicted a wound on a person, so shall it be inflicted upon him.  One who strikes an animal shall make restitution and one who strikes a person shall be put to death.  There shall be one law for you, it shall be for proselyte and native alike, for I, HaShem, am your G-d.

This passage actually is a depiction of equality for all under the eyes of the court.  It states that the principal of the laws and statutes must be upheld without regard to the personal situation of the participants, the witnesses, or the judges.    From the most unfair situation that can occur to a person whose status is considered unequal to everyone else, through no fault of his own, to the smallest injury that someone might inadvertently cause to an animal belonging to someone else – the law remains equal and unmoved.  This is, essentially, the origin of tort law.

The earliest citiation of similar lex talionis (mirror retribution laws), are found in Babylonian Law (see Code of Hammurabi, c.1780 BCE, later Talmudic interpretation (Bava Kamma, 83b-84a),  refers to “an eye for an eye” and similar expressions as mandating monetary compensation in tort cases.

Code of Hammurabi

Code of Hammurabi

It is generally assumed that as early civilizations grew, it became necessary to establish a system which would prevent overreactions to financial damages of various types, which had resulted in feuds and vendettas that could threaten inherently unstable newly established social structures. As Kenneth Bond asserts, ‘ lex talionis systems served a critical purpose in the development of social systems — the establishment of a body whose purpose was to enact the retaliation and ensure that this was the only punishment. This body was the state in one of its earliest forms.*

The juxtaposition of these two pasukim requires us to reconsider the case of the son of the Israelite woman and the Egyptian man.

The tannaitic Midrash Halakha, Sifra, adds information to the bare bones of the pasuk:

There came out…one whose mother was Israelite – whence did he come out?  From Moses’ court, for he had sought to pitch his tent in the camp of Dan.  He said to them, I am [the son] of a daughter of the tribe of Dan.  They said to him: Scripture says: the Israelites shall camp, each with his standard, under the banners of their ancestral (literally ‘their father’s’) house (Num. 2:2).  So he went to Moses’ court, and he came out having been found against, and he stood there and cursed among the Israelites – which teaches us that he had become a proselyte.*  (Sifra, Torah Kohenim, Emor, ch. 14, 104c, cited by Rashi on Lev. 24:10.) 

As cited by HaRav Sharon Shalom, of Kiryat Gat, Sifra elaborates on the description of the act, relating to the status of a “son of an Egyptian man and an Israelite woman” proclaiming that he had converted in order to be “among the Israelites.”  Underlying this proclamation is the assumption that at the time of this early tannaic midrash (attributed to Rabbi Ishmael c: 90-156 CE), matrilineal ascent was not accepted as the norm.  Patrilineal descent is implied, as this was the condition necessary for being allowed to camp within the compound of one’s father’s tribe.

The Kever of Rabbi Yishmael, 3rd century CE

The Kever of Rabbi Yishmael, 3rd century CE

HaRav Shalom goes on to assert that descent is patrilineal amongst the Ethiopian Jewish community, which became established in Ethiopia between the first and fifth centuries CE.  This strengthens the idea that Judaism was not established as matrilineal from the outset.  It is well established that many Halakhic rulings of the Ethiopians preserve ancient practices in their original form, as observed prior to the Talmudic period.

So now, let us look at the legal status of the man who cursed G-d’s name in Leviticus.  According to the midrash, he was not considered to be Jewish by virtue of his mother.  He was a convert.    However, the right to be associated with a tribe, and to set up one’s tent within their district (and later to inherit land set aside for that tribe), was patrilineal.  And as a convert, whose mother was of Dan, he did not qualify for the rights associated with being a member of the tribe of Dan.  He could not pitch his tent in their compound, nor would he be able to attain land for himself and his descendants in the future.

As will be seen in the pasuk regarding the daughters of Zelophehad (Num. 26:33), inequalities regarding the laws of inheritance were addressed in Moses’ court, and it was necessary from the outset for the court to have decision-making power regarding conflicting claims of inheritance and descent.

The man whose father was Egyptian, although he had converted, was in a terrible position.  As a convert, he must follow all the laws and customs of the Israelites to be allowed to dwell amongst them.  However, he had none of the rights conferred upon them.  So he appealed his case in the court of Moses, and lost his appeal.

After leaving the court, he “went out amongst the people,” aware he would not be able to stake his claim as a member of the tribe of Dan.   He was taunted by a full member of the tribe of Dan, and responded with blasphemy.  By cursing G-d’s Name, he created an unacceptable social rift, the punishment for which was death by stoning.  However, before being stoned, those who heard the curse were required to “lay hands on him”, in the manner of a person bringing a sacrificial animal.

 למחנה וסמכו כל-השמעים את-ידיהם אל-ראשו

In this case, one must show compassion for a person whose situation was brought about through no fault of his own, but whose reaction was, nonetheless, unacceptable on a level that could potentially create massive social unrest.  The law is the law, and must be upheld, however compassionate we might be towards the root cause of the problem.

Traditional symbol of the tribe of Dan - scales of judgement

Traditional symbol of the tribe of Dan – scales of judgement

Now the reason for this passage being followed immediately by an eye for an eye is clear.   Lex talionis, or mirrored retribution was already established as a legal custom of the Late Bronze period.  The first step is to avoid overcompensation for harm done, i.e. feuds and murders.  Later, in the Talmudic period, these laws became purely financial compensation for damages.   However, the penalty for committing a crime which could shake the foundations of society itself, which cursing G-d’s name within the encampment clearly was, was swift and irrevocable, no matter how much one might sympathize with the root cause of the man’s anguish.  Thus the laying on of hands, and stoning, followed by the laws of torts for damages against people and property.  The final pasuk of the parash is the stoning to death of the blasphemer.

We now see Halakhic law as fluid and adaptable to the relevant and acceptable customs of each period.  Likewise the transference of Israelite descent from a patrilienal to matrilineal was gradually codified.

The first clear indication of the change to a matrilineal approach is in the book of Ezra, written after the return of Jews following Babylonian exile in 538 BCE.  A figure known as Shekhaniah, a “son of Elam”, proposes to Ezra (10:3) that all of the returning exiles who have taken foreign wives cast away those wives and their children, causing them to leave the community.  While the need for this edict only underscores that these people would, by default prior to this event, have been considered part of the Israelite community, this measure does seem to mark the beginning of a policy treating the children of Gentile women as Gentiles.

Returning from the Babylonian Exile

Returning from the Babylonian Exile

 * Kenneth Bond. “Religious Beliefs as a Basis for Ethical Decision Making in the Workplace”.  Humboldt State University. 1998.

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