On Matrilineal Descent, Kilayim, and Roman Law

Shaye J.D. Cohen's conclusion in AJS Review, Vol. 10, No. 1. (Spring, 1985), pp. 19-53. Origins of the Matrilineal Principle in Rabbinic Law:

In the biblical period a mixed marriage between an Israelite and a non-Israelite produced offspring which was usually judged patrilineally. If an Israelite woman was married to a non-Israelite man, she would join his clan and bear children who were not Israelite. If he joined her clan through matrilocal marriage, the children apparently were considered Israelite. A matrilocal marriage could even legitimate the children of an Israelite mother and a slave father (1 Chron. 2:34-35). In the Mishnah, however, the children of an Israelite mother and a gentile father (either slave or free) are mamzerim, Jews of impaired status. The Talmudim declare these children to be not mamzerim but full and legitimate Jews. Both decisions, at least in cases of patrilocal marriage, contradict the Bible. In biblical times many Israelite men married foreign women, and there was never any doubt that the children were Israelite. The offspring of a slave mother and an Israelite father did, apparently, suffer from some disabilities, but no one questioned its Israelite status. The Mishnah, however, explicitly states that such offspring follow the mother, and this ruling is not disputed in the Talmudim. As far as I have been able to determine, the transition from biblical patriliny to mishnaic matriliny cannot be dated before the period of the Mishnah itself. There is no evidence that Ezra attempted to introduce the matrilineal principle, and even if he did, there is abundant evidence that it was still unknown in the first century of our era. Why did the Yavnean rabbis depart from biblical practice?

There are two good explanations, one internal, the other external. The matrilineal principle accords nicely with the mishnaic laws regarding the mixture of diverse kinds (kilayim). The union of a Jew with a gentile is akin to the forbidden union of a horse with a donkey. In both cases the Mishnah judges the resulting offspring matrilineally. Even more striking is the parallel afforded by the Roman law of status. The terminology, ideas, and conclusions of M. Kiddushin 3:12 are thoroughly Roman: if one parent does not possess the capacity to contract a legal marriage (conubium in Latin, kiddushin in Hebrew), the offspring follows the mother. The rabbis, like the Romans, departed from this principle in order to penalize a citizen woman who married a noncitizen or a slave: the Romans declared that the offspring follows the parent of lower status (in this case, the father), the rabbis declared that the offspring is a mamzer. I am unable to decide between these two explanations. Perhaps they are both true, the rabbinic notions of kilayim facilitating the influx of the Roman law.

Another factor is relevant too. The idea of conversion to Judaism is a creation of the exilic period. At first it was an option only for men; its ritual was circumcision. A gentile woman "converted" to Judaism through marriage with a Jewish husband, a procedure presumed by the Bible and still presumed by Josephus. Gradually, however, conversion for women was introduced; its ritual was immersion (a practice which also became part of the conversion ritual for men). This facilitated the rise of half of the matrilineal principle, since the gentile woman was now a person whose Jewishness could be determined without reference to her Jewish husband. If she converts to Judaism, the children she bears to her husband are Jewish; if she does not, they are gentile, in spite of the Jewishness of her husband. This new ideology mandated the reinterpretation of the biblical narratives which glibly admitted that the heroes of ancient Israel married foreign women. These developments are obscure, but they certainly form part of the ideological background to the emergence of the matrilineal principle.

All of these suggestions are exercises in intellectual history. Did social history too play a role in the creation of the matrilineal principle? Numerous practitioners of Jewish Wissenschaft have argued that rabbinic law was determined, at least in part, by the social and economic needs of contemporary Jewry. The matrilineal principle has had enormous social consequences for modern Jews, and it is easy to believe that the rabbis must have been compelled by some societal need to institute it. But there is little evidence to support this belief. Intermarriage was not a severe problem in rabbinic society, and even if it was, the logical response would have been the institution of a bilateral system (either a gentile father or a gentile mother renders the offspring a gentile). Perhaps in regard to other matters the rabbis were legislators listening attentively to the demands of their constituency. In their statement of the matrilineal principle, however, the rabbis were philosophers, and, like most philosophers, they did not always live in the real world.



So wait... all of our "Who is a Jew?" problems stem from rabbinic philosophy and not from Divine lineage rules? Oh, man...