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Inglorious Mamzers – Israel’s Bastardy Dilemma

Should national law in Israel, the same law that gave the Orthodox the monopoly on marriage and divorce, consider halakhic principles in proving fatherhood? Would opening the discussion worsen or improve the mamzer problem?
Photo: pict rider/Adobe Stock
Photo: pict rider/Adobe Stock
Rabbi Dr. Shraga Bar-On is the Vice President and Director of the Kogod Research Center for Contemporary Jewish Thought and the David Hartman Center for Intellectual Excellence in Jerusalem, and a lecturer of Talmud and Jewish Thought at Shalem College. At the David Hartman Center, he is responsible for the advanced training of aspiring public intellectuals through the Beit Midrash for Israeli Rabbis, the David Hartman postdoctoral fellowship, and the Maskilot fellowship for women pursuing their doctorate. His research in

Inglorious Mamzers – Israel’s Bastardy Dilemma

First posted on Times of Israel

The “Mamzerim” exhibition at the Jerusalem Biennale for Contemporary Jewish Art is both impressive and moving. Nurit Jacobs Yinon, who initiated the work “Mamzerim: Labeled & Erased” with Emily Bilski, told me on a recent visit: “Society stigmatizes the mamzers, erasing them from the community of Israel. They cannot marry but another mamzer.” The powerful artwork made me feel their trap.

This is the classic problem of being a mamzer. There is a midrash in which Hananya the tailor protested boldly against this situation: “‘I returned and saw all the oppressed’ (Eccl. 4:1): these are the mamzers…‘power is on the side of their oppressors’ (id.): this is the Great Sanhedrin of Israel that claiming the power of the Torah ousts them.” (Vayikra Rabbah, Emor 32)

The works of Nurit, Andi Arnovitz, Ken Goldman, and Mira Maylor at the exhibition illustrate this tragic process. The visitors become part of the labeling and erasing process. In the work of Maylor, for example, you watch transparent people standing for the mamzers, and you see your own reflection — you’ve been labeled. Then you move a little bit – and you’re erased. Even you may be a mamzer.

I see the dilemma presented by the exhibition not as the injustice in labeling a person as mamzer, but as the inverse trap resulting from the Israeli halakhic and legal policy of trying to hide and deny the mamzers. Moreover, in Israel we try not to label the mamzers, to erase them from the list of the unmarriageable. In 2017 Israel, the mamzers are the absent, present people.

Everybody knows there are thousands of people born from extramarital relations in Israel. However, “only” about 200 mamzers are registered in the list of the unmarriageable. What about the others? They enjoy the protection of halakhic poskim and Israeli law – the latter being an art object in the work of Nurit.

This is a wonderful example of the use of the distinction between realism and nominalism. From a realistic point of view, every child conceived in a forbidden sexual relation is a mamzer. From a nominalist point of view, a person becomes a mamzer only after being halakhically so declared.

Today it is easy to check, by a simple tissue analysis, who is a mamzer. But halakha and Israel law reject this test, even when the biological parents request it. Even in the case where the baby is a mamzer (for example, when the parents have separated but not divorced yet, hence are still legally married), the baby is not registered as the child of the biological father but of the legal one.

Apparently, this is an excellent approach. Apparently, we have to congratulate the halakhic authorities for using halakhic tools to overcome a tough reality. Apparently, we have to congratulate the humane coalition among halakhic authorities, Israeli lawmakers and the judicial system.

But the situation is more complex. There’s a price for the protection halakha and the law provide. Some of the mamzers are happy to be hidden and not included in the list of unmarriageable in Israel. But others suffer.

What would you do if, for example, you were the biological father of a mamzer born during the divorce process of the mother? You are the father, but to avoid staining the child as a mamzer, he or she must be registered as the child of the former spouse of your wife. And if you, God forbid, divorce, there will be no legal recognition of your biological fatherhood.

What would you do if, for example, if you were the legal father of the mamzer? You know the child isn’t yours; everybody knows the child isn’t yours. Nevertheless, you must pay him/her alimony.

And if you were the mamzer’s mother? What would you tell your child?

And if you were mamzer, what would you do?

On the horns of the dilemma of speaking out

What should we, as citizens, do? Should we hide the mamzerim and blur the problem, or should we cope with it in a direct and pristine way? Should we talk about the mamzer problem, or should we sweep it under the carpet? Should national law in Israel, the same law that gave the Orthodox the monopoly on marriage and divorce, consider halakhic principles in proving fatherhood? Would opening the discussion worsen or improve the mamzer problem?

Nurit Jacobs Yinon is sure that the problem is present, anyway. Not only are hundreds of mamzers registered on the blacklist – some discover they are unmarriageable only when they try to register for marriage – she’s convinced that “besides a blacklist, there is a transparent list. It records the mamzers that aren’t in the list of unmarriageable. Once upon a time, these lists were handwritten; today they are in the cloud, and it is very difficult to integrate mamzers.”

The journey “Mamzerim: Labeled & Erased” offers not only an exhibition, but a comprehensive book on the issue that was launched at the exhibition.

It is activist art calling for a policy change, too. It is political art that asks the classic questions dealing with the relationship between art and social action, between “pure” art (art for art’s sake) and “committed” artistic creation. Those reluctant to accept committed art must nevertheless acknowledge the difference between art sponsored by the government, by magnates, or by those who represent certain interests, and the art committed to ethical goals and to solving existential distress. The viewers at the exhibition have the opportunity of pointing out, influencing, and becoming art reviewers and social reviewers.

I think there’s no purer art than this.

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