Halacha and the frum world take it for granted that whether
a person is born Jewish is determined by whether he or she had a Jewish mother.
It is assumed that the principle of matrilineal descent goes back as far as
there have been Torah-abiding Jewish people.[1]
Yet we see in Tanach many examples of Jewish men marrying non-Jewish women.
Yosef marries an Egyptian, Moshe a Mdianite, David a Pilishti, and so on. Their
children are all considered Jewish. There is an assumption that these women
were migayar, and in the case of
Yosef and Osnas, a medrash that claims she was really Jewish all along, but
there is no indication of this in the pesukim. There is also some indication in
Tanach that a woman who married a non-Jewish man was then considered part of
his nation, and their children were not Jewish.
The principle of matrilineal descent doesn't appear in any
extra-biblical sources, either. Writers such as Philo of Alexandria and
Josephus seem unaware of it, as do the Dead Sea scrolls and various early works
which survive but were not canonized as part of Tanach. The earliest recorded
instance of the principle of matrilineal descent seems to be in the mishnah.
The Mishnah in Kiddushin 3:12 discusses potential valid and
invalid marriages, and states that in a halachically valid marriage, the status
of the children is that of the father, i.e., whether the children are cohanim
or not. When the marriage is invalid, the children are hallachically
fatherless, and follow the status of the mother. A marriage between a Jew and
non-Jew in not hallachically valid, so the children's Jewish status depends
upon their mother's Jewish or non-Jewish status.
Under Roman law, a child is legally his father's heir only
if he is the product of a valid legal marriage. Marriages recognized by the law
were restricted to unions between Roman citizens. If a citizen married a
non-citizen, the children followed the status of the mother. A Roman father and
a non-Roman mother produced non-Roman children. A Roman mother and non-Roman
father would theoretically produce Roman children, but a separate, later law dictated
that the children follow the parent with the lower status.
The logic is identical to that found in the Mishnah. The
Mishnah developed during the period when Judea was ruled by Rome. It seems more
likely that the law of the powerful Roman Empire, which was legally binding throughout
the empire, influenced Jewish jurors in
the Roman province of Judea in the first centuries CE than that a hitherto unattested
law from the backwater kingdom of Judah influenced Roman jurors hundreds of
years earlier.[2] It
is likely, then, that matrilineal descent, the method by which we determine who
is Jewish, is originally not a Torah principle but a Roman one. That something
so fundamental to Jewish identity could have originated in another culture
undermines the idea that Judaism as practiced today in the frum world is
essentially the same as it has been down through the ages.
[1] The
following discussion of matrilineal descent is based on Cohen, S.J.D. (2001).
The Matrilineal Principle in Historical Perspective. AJS Review. Retrieved from
http://www.jewishrecon.org/resource-files/files/Shaye%20Cohen%20-%20the%20Matrilineal%20Principle%20in%20Historical%20Perspective.pdf
[2] The
author of the article provides another suggestion for the origin of matrilineal
descent. He says that it may be part of the mishnah's fascination with categorizing
things, and points to a discussion of kilayim,
an animal such as a mule which is the offspring of two species. There is an
opinion there that the species of the animal follows the mother, and so too,
the author suggests, in cases of two nationalities the child follows the
mother. I would suggest that it is more likely that his first explanation is
correct, and matrilineal descent was borrowed from Roman law. The logic of the
Roman law and of the Mishnah is identical, and given the historical timing of
the Mishnah is probably not a coincidence. If so, then the principle of matrilineal
descent with regard to children may have been applied to cases of kilayim, rather than the other way
around.
