DETERMINING JEWISH STATUS

Determining Jewish Identity:Ethiopian JewryRabbi Hershel Schachter

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Recent eHorts by the world Jewish community aimed attransporting the starving and persecuted Jews of Ethiopia to Israeland helping them adjust to modern life there have been based onthe assumption that the recipients of this aid are indeed Jewish, asdefined by halacha, or sufficiently Jewish to be included under theBiblical imperative of providing life-preserving help. The Jewishidentity of this group has been discussed in our own generationand earlier eras by respected halachic authorities.' The layman,however, may not be familiar with some of the considerations thatgo into ascertaining authentic Jewish identity.

The halachic criteria for making a determination on thevalidity of the Ethiopians' claims to be a Jewish tribe areformidable. This paper will consider briefly some of the theseissues. Among the questions which have to be addressed are thefollowing:

1. How is Jewish status determined? Can anyone who claims

The author wishes to thank his til/mid, Moshe Rosenberg, for preparing thismaterial for publication, excerpting it from Rav Schachter's ,hill,im.

1. See, for example, ResponSil RlldvlIZ, Vol. 7, no. 9; RespollSll Tzitz Eliezer, Vol.II, no. 25; HaRav Ovadiah Yosef: Be'llyal HIlGiyu, Bezmunellu in TorllhShebelll Peh. Vol. 13 (5731); unpublished letter of HaRav Moshe Feinstein,dated 26 Sivan 5744.

Rosh Yeshiva and Rosh Hakollel, Yeshiva University

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descent from Jewish forbears be granted instant recognition as aJew? Would such recognition extend to granting permission tomarry within the Jewish community? The answers will hinge uponwhether his claims about himself are sufficient or whether furtherproof might he required.

z. Even if a claimant has the right to be believed, need weprobe whether he, in good faith, knows enough about Jewish lawto really know if he is a Jew?

3. Assuming the Ethiopian claim to be Jewish is accepted,what halachic problems might be raised? What would be theirstatus if their claim were not accepted?

4. How might their halachic problems be solved?

The Targum to the first verse of Megillat Ruth lists tenfamines, nine already past, and one yet to be in the history ofmankind. The tenth famine is to occur in the days preceding theadvent of Mashiach and will differ in nature from all the rest.Whereas the other famines were physical manifestations, this finalone will not be "a hunger for bread, nor a thirst for water," butrather a longing for the prophelic word of God. The underlyingidea of this passage is felt most acutely in approaching a halachiclopic of the sort to be discussed herein. In the era before Mashiach,halachic dilemmas will arise, the nature of which we have notpreviously encountered, and for which we have no establishedmethods of adjudication. When faced with such complex andpressing problems, we will be consumed with the longing forDivine assistance to help us reach the proper conclusions. We willlament the absence of Ruach Hakodesh, for these questions seembeyond human ken.

Any notion that an individual's black skin color per se willhave an effect on his Jewishness may be discarded from the outset.The Mishna1 in Bechorot explicitly makes reference to a black

2. 45b. The disqualification stems not from discrimination based on color, butfrom the Biblically-derived rule of "eino shave/! beza,'o shel Ah"ron." Seeglosses of Rabbenu Gershom. See also Mishna Negllim 2:1.

2a. R. Chaim Volozhin in Stftr Chut H"mtshuklsh, HS, states thai people who

ARBITRATION

Kohen and, while disqualifying such a Kohen from Temple service,the Mishna clearly considers him a Jew. More relevant to the topicwill be issues bearing on the trustworthiness of any claim tomembership in the Jewish people,l'

Establishing Jewish IdentityThe crucial question to be decided is whether a person's own

claim to be Jewish may be presumed sufficient to confer that statusupon him, Is his lone testimony enough or must he offer furthercorroboration?

The Talmud in PesachimJ relates how a certain non-Jew wouldregularly travel to Yerushalayim for Pesach, and, impersonating aJew, would partake in the Paschal sacrifice, His participation wasdir&tly in contradiction to Biblical la~, and yet his claim to Jewishidentity was honored, until the sage advice of Rabbi Yehuda benBeteirah "tipped off" the Jewish authorities and ensnared thegreedy imposter. Why did the Jewish Beth Din of the time believethis charlatan, without demanding proof of his supposedJewishness? Does this story imply that any claim to being Jewish istaken at face value?

The Tosafot on the spot refuse to come to such a conclusion.They suggest, rather, that most people in Jerusalem at the timewere Jewish, and the principle of Rov (majority) entitled the Jewsto assume any particular individual to be part of the majority, InYevamot', however, the Tosafot cile Rabbenu Tam as concludingfrom the passage in Pesachim, as well as from other sources, thatone who claims to be a Jew is believed and granted all

cannot speak Yiddisn an.' not to ~ accepted as Jewish, The Chazol1 Ish, inEven H<l'ez.er 117'8, comments that obViously R. Chaim's words are nol to ~taken literally; he was speaking about Russian· Polish Jews of his lime. Thispassage indicates Ih<lt eXlernal considerations <lre also a faclor, nol just halachicones.

3. 3b.4. Shmot 12:43. "Kol ben nechllr 10 yochlll bo."5, 47a. See, however, Chllzon Ish Even Hll'ezer 117:17, who argues thai Tosafot in

Yrollmot holds that they are beJievai due to the rule of rov.

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accompanying rights and privileges. Which of these two views inTosafot is accepted in practical halacha? Does the Beth Din have tocheck into the Jewish identity of a stranger, or is he to be believedon the basis of his unproven claim alone? Another Talmudicpassage may clarify matters, by helping us understand on preciselywhat issue our question hinges.

In Yevamot6, the Gemara records a dispute between RabbiYehuda and the Chachamim regarding the veracity of a personwho claims to have converted to Judaism. While the Chachamimrequire under all circumstances corroboration of two witnesses,Rabbi Yehuda finds the word of the convert himself to besufficient, unless there is some independent reason to suspect thiswould-be Jew of Iyin~, in which case he, too, would agree with theChachamim that two witnesses are required. The Gemara thenstates that in such a case, two witnesses who attest to the truth ofsuch a claim of conversion are believed, even if they merely testifythat they heard of the conversion from two other witnesses. Whilesuch second.hand testimony is labeled "eid mipi eid," and isusually invalid, a leniency is prescribed by the Gemara in this case.However, eid mipi eid cannot be valid in capital cases, monetarymatters, or erua. The Rosh', however, suggests that the leniency isnot universally accepted by the Tannaim; it was only formulatedwithin the opinion of Rabbi Yehuda to satisfy the requirement oftwo witnesses when there is suspicion of deceit, and would becontested by the Chachamim. The Chachamim would require twowitnesses who themselves saw the conversion and who would beacceptable witnesses in any other legal situation. This opinion ofthe Rosh is accepted by the Tur and Shulchan Aruch.'·· TheKarban Netanels comments that the Rosh has declared twoseemingly unrelated issues to be connected. What, after all, doesthe acceptability of eid mipi eid testimony have to do with the

6. 46b _ 47~.

7. , ..., nwe fpO

7~. See Nodo Biyt"udo, Vol. I, Yore" Dea" No. 55.8. '1"1 l"I1K

DETERMINING JEWISH STATUS

dispute as to whether two witnesses are required always, or only insituations of possible deception?

Determining Personal StatusRav J.B. 5010veitchik~, by shedding light on the nature of the

dispute between Rabbi Yehuda and the Chachamim, explains whythe question of second-hand testimony depends upon the samepoint of contention. In debating whether a convert is believed totestify regarding his status, the Tal1l1aim are actually arguing as tothe classification of testimony regarding personal status. TheChachamim consider such testimony as pertaining to davarshebi'erva10 , regarding which the law clearly requires twowitnesses. Rabbi Yehuda, on the other hand, classifies the case asissurim (other prohibited categories of the Torah), and applies to itthe principle of £id echad ne'eman be'issurim - any individual Jewis believed to determine the presence or absence of suchprohibition. ll Once we are dealing with a case of issurim, whichdoes not require the testimony of two witnesses, we understandwhy, according to Rabbi Yehuda, when, on occasion, two witnessesare necessary, we would nevertheless accept the testimony of awitness who heard the testimony from another person. The halachadistinguishes between davar shebi'erva and eid echad t1e'emanbe'issurim. For davar shebi'erva, eid mipi eid cannot be used; forissurim, it is acceptable.

The question of whether determining personal status is adavar shebi'erva or only issurim is, then, a Tat1t1aitic dispute, withramifications for the credibility of a person testifying abouthimself. If the matter is considered davar snebi'erva, then two

9. In his shiurim to M<lsuh/!/ f'es<lchim.10. This term will be definKi at length later.1t. The standard example given to illustrate eid ecnad ne'eman be'issllrin is the

credibility of a restaurant owner or wife to assure a customer or husband thatfood being served is kosher.

A similar formulation of gerlll being either issurin or davar shtbi'trvn canbe found in Noda Biyehuda Vol. I, Yorah Deah no. 55, and in R. ShlomoKluger's Responsa TUl1 Ta'am Va Da'at pI. 2, Hi/khal Gerul.

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additional witnesses must support his claim; if, however, it is aquestion of issurim, then his own testimony suffices. II. Armedwith this information, we can return to the Gemara in Pesachimand the two explanations of Tosafot. If, as Tosafot write inPesachim, the non.Jew was believed in his claim of Jewishness onlybecause most people there were Jewish, then the situation isunrelated to the debate recorded in Yevamot. If, however, theimposter was believed because of the principle of eid echadne'eman be'issurin, it would turn out that his credibility or lackthereof would depend upon the two positions voiced by RabbiYehuda and the Chachamim as to whether personal status iscategorized as issurim or davar shebi'erva.

How is personal status determined in Jewish law? The answerwill lie in our definition of davar shebi'erva, as opposed to issurim.In fact, at least four opinions exist regarding the definition of adavar shebj'erva.

Rabbi Avraham of Sokhachov, in his responsa Avnei Nezer 12 ,

specifies that any testimony regarding a person is considered davarshebi'erva, while testimony about an object is considered jssurim.Once, he was asked to provide a written hashgacha for a personwhose reliability was vouched for by the distinguished Rabbi NaftaliAdler of London. Nevertheless, the Avnei Nezer cites the opinionsof the Ritva and Rabbi Akiva Eger that it takes two trustworthywitnesses to testify regarding a person. Rabbi Adler would have toobtain the corroboration of another witness before his testimonycould be accepted and the hashgacha granted. This same definitionof davar shebi'erva, as apart from issurim, is supported by theMachane Ephraim. IJ

Rabbenu Tamu , on the other hand, clearly defines davarshebi'erva as a function of the prohibition of giluy arayot, not as a

lla. In light of this, it is difficult to understand the position of Pnei Yehoshua. SeeGilyan Maha,shl!, Ibid.

12. Choshen Mishpat, no. 20.13..1' n"y n1J;1"I ,D"t!K rmm14. Sefe, Hal/asha, pg. 83d {Prague edition}. See also Tosafot to Gittin 2b, s.v. eid

echad ne'emall. See Nada Biyehuda, mentioned above in note 11, who assumes

DETERMINING JEWISH STATUS

variable based on "person" as opposed to "object." That the sexualoffenses included under the term giluy arayot form a separatecategory is clear from the fact that only they, like idolatry andmurder, carry the condition of yehareg ve'al ya'avor, one must giveup his life rather than violate these prohibitions. IS Rabbenu Tam,however, takes an additional step, equating the category of giluyarayot with davar shebi'erva. This position becomes clear fromRabbenu Tam's classification of the sin of relations with a nidah asnot being giluy arayat. Were nidah to be categorized as giluyarayot, he reasons, that would automatically confer upon it davarshebi'eroa status, and, like any davar shebi'erva, it would requiretwo witnesses. We know, however, that the nidah herself isbelieved to testify as to her status; in fact a verse concerning thenidah provides, according to Tosafot, the v,ery source for theprinciple of eid echad ne'eman be'issurin. In the course of hisreasoning, Rabbenu Tam's equation becomes clear: giluy arayotequals dauar shebi'erva. This opinion is shared by the Ran. 16

A third definition of davar shebj'erua becomes evident froman examination of a puzzling ruling by Rambam. In HilchotSanhedrin l7, the Rambam rules thai only one witness is needed todetermine that a woman is a zonah and may not marry a Kohen.This ruling seems to fly in the face of a Gemara in Kiddushin l6

which, in discussing the status of King Yannai's mother, concludesthat two witnesses are needed to confirm that a woman married toa Kohen was taken captive and consequently became forbidden toher husband as a zonah. The Machane £phraim l9 and otherauthorities resolve this difficulty by noting that the Rambam

the definition of Rabbenu Tam and suggests a distinction bet~n ascertainingwhether a man or a woman had converted. For a Jewish man to live with a non­Jewish woman is considered gilwy Ilrllyot and considered dQVllr shebi'el'VQ; butnot in the reverse. See however note 21a.

15. SIl>!hedrill 74a.16. In his glosses on the Rif to Gilti>! 64a.17. 16:6.16. 66a.19. See note 13.

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permitted the testimony of only onE' witness when dealing with anunmarried woman, where the testimony will have no direct bearingon mailers of marital status. But. these authorities maintain, theRambam's opinion is that anything which affects marital status isconsidered a davar shebi'erva and requires two kosher witnesses.This would certainly include marriage and divorce, whichconstitute ishut. Also included would be testimony about a sarah­a woman suspected of faithlessness to her husband - because anumber of sources indicate clearly that such a woman has onlyincomplete ishut with her husband. lo And, finally, testimony that aKohen's wife had been taken captive would also he categorized asdavar shebi'erva, because it seeks to end an ishut relationship byrendering the woman forbidden to her husband. Therefore, theRambam, too, can reconcile the Gemara in Kiddushin: sinceYannai's mother was a Kohen's wife, testimony about her indeedconstituted a davar shebi'erva and called for two witnesses.

A fourth possibility is entertained by the !osa/ot Rid to BavaBatraU , where he suggests that testimony merely for purposes ofidentifying a person or object is classified as issurim; onlytestimony about an action or event is a davar shebi'erva. Toidentify a person as a first-born, or an item as non-kosher, we needbut one witness; to say that a forbidden liaison took place wouldrequire two.

Having studied various definitions of davar shebi'erva, wemust return to our original case of testimony regarding gerut to seewhether such testimony would be termed davar shebi'erva underany of our definitions. Certainly we are not dealing with aprohibition of giluy arayot (Rabbenu Tam), nor are we determiningishut or non-ishut (Rambam). Were we to accept, however, theAvtlei Nezer's contention that testimony on a person, as opposedto an object, requires two witnesses, we would be forced to apply

20. For this ruson the Talmud rules that this woman's husgand may not inherit herproperty, nor annul her vows. See ResponSIl Atmej Neur, Even HIlEu" no.240.

21. BIlVIl Bllth,1l 126b.

DETERMINING JEWISH STATUS

the same standard to anyone who advances a claim of Jewishness.This definition, however, is not accepted by the Poskim, who rulethat, according to Biblical law, one witness is sufficient to establisha man as a Kohen. Even the man himself is believed. Only becauseof a rabbinic decree for the purpose of safeguarding matters oflineage, do we require that someone other than himself testify, andwe even require two witnesses. Testimony regarding identity of aperson is really issurim.~~

The Tosafot Rid's definition, as well, might present a problem.If testimony on an action or event be a davar shebi'erva, one couldargue that gerut, too, might fall under this category. Such anargument would be based on the opinion of the Rambamu thatevery Jew owes his Jewishness to some act of conversion. Ratherthan saying that recent converts are Jewish by virtue of the act oftheir conversion, but people born Jewish are Jewish naturally,without need of any act, past or future, the Rambam assumes thateach and every Jew is Jewish because of an act of conversionsomewhere in history, whether that act is a recent one or datesback to Mount Sinai. This difficulty, however, is easily resolved,for no Pasek accepts the definition of the rosafot Rid; the rosafotRid himself later rejected his own idea as untenable.

From our discussion it emerges that a person is believed totestify as to his own Jewishness because, under all the definitionsexamined, such testimony would be a matter of eid echad t1e'ematl

22. This conclusion is reinforced by a closer examination of the laws concerning theestablishing of a man as a Kohen, and identifying husband and wife forpurposes of writing a get. In both cases, the parties involved are believed,Biblically, to identify themselves (see BIllNl Batra 167 and Even HaEzer, 120:3),and for that reason, in emergencies we revert to the d'oraita level, and do notrequire witnesses (Ste Gittin 66a and Ketzot HanO$hen 49:2). For many years ithas been considerrd an emergency situation, in that constant persKution hascaused many Jews to f1te, and made it impossible to provide witnesses.Consequenlly, Kohanim have been believrd on their word. Nonetheless, theSluuh cites the opinion of the Maharil YD. 322 that since the rabbinic law hasnot been observed, we do not permit any Kohen to eat the priestly Challahtoday.

2.3. Hi/chot Issurei Bi"h 152.3. See also Hapardes, Tishrei 5736.

THE JOURNAL OF HALACHA

be'issurin. At most, we might refrain from marrying such a persondue to the rabbinic decree regarding lineage,lJ,o but the person'sJewishness is not in question. The trust we place in the person'sveracity is of course contingent upon there being no reason of anykind to suspect him of dissembling.

What Does the Claimant Know?Yet, even assuming the truthful nature of the claim advanced,

we must deal with the question of whether the person making theclaim in good faith is familiar enough with the relevant areas oflaw to know that his claim is true. A person who declares honestlythat he slaughtered an animal and prepared its meat in accordancewith the law may still be an "eino yodea she'eino yodea", i.e., hemay be ignorant of the pertinent laws, without even being aware ofhis ignorance. 24

What, then, do we make of such a person's claim to beJewish, when his words are only of doubtful reliability? Until hisstatus can be determined conclusively, he is considered salekYisrael, salek Akum - maybe he is a Jew, maybe a Gentile.

In Ketubot Isb the Gemara rules that even a salek (doubtful)Jew must be saved when his life is threatened. The requirementlehachayoto - to preserve his life - is in force, and includesspending money to achieve the desired result, Since, however, theJewish status of this person is now in doubt, we would require a

23a. Rambam, Issure; Bi'llh 13:10; Yoreh Deoh 268:10.Here it is stated elCplicilly that the requirement for two witnesses is only a

rabbinic ruling if one wishes to marry a convert. Obviously Rambam andShu1ch,m Art/cll consider that the debate in Yevamo' 47a between R. Yehudaand the Rabbis are "derlZsho'" on biblical verses. As such, the derashotconstitute an IZsmlZchta, and biblically there is no requirement for twowitnesses. However, Chaum Ish, Even Hll'eur 117:9, finds in the uid Gemaraa dear implication that the derlZshot are authentic, and not in the nature of anasmachta; thus, biblically, two witnesses would be reqUired.

24. This, elCplains the Bet HaLevi, is why someone who slaughtered an animal andcan still be found must be tested to see if he knoW5 the laW5 of shuh;/a, ratherthan just being asked if he slaughtered properly. Being ignorant of his ownignorance, he may say that he knoW5 the necessary halachOI.

DETERMINING JEWISH STATUS '"

conversion ceremony, but without the recitation of a beracha. Nohatafat dam brit would be mandated to fulfill the circumcisionrequirement, because when a circumcision is performed for thesake of the mitzvah of Milah, even should something later befound amiss with the gerut, the Milah condition is satisifed. l5

Halachic Problems

A complicating factor in our determination of the Jewishnessof Ethiopians and other such groups is the looming possibility ofmamzerut (bastardy). If we assume these people to be non·Jewish,no problem would exist, for the Talmud in Kiddushil1 26 rules thatmamzerut does not apply to Gentiles. If we consider that theEthiopians are not Jews, then as soon as they convert they areaccepted as Jews, without problems of mamzerut. But if weconsider the people in question to be Jews, or at least safek Jews,we must deal with the possibility that, over the course of theirhistory, they did not observe properly the laws of divorce as wehave them, since they seem to be noticeably lacking in Rabbis.Consequently, women improperly divorced, who later remarried,may have had children in later marriages who would be termedmamzerim. These mamzerim subsequently would have intermingledwith the general population, casting doubt upon the status of everymember of the group. Should it be historically shown that the lawsof divorce were not properly observed, we would be faced with aformidable problem indeed. How could we allow a possible mamzerto marry into the Jewish people?

Possible ResolutionsOur problem might be happily resolved if we could allow our­

selves the liberty of one very questionable assumption, namely,that laws made by the central halachic authorities of Israel after theseparation and isolation of Ethiopian Jewry are not binding upon

25. All this is predi(atoo on the Melrt/'s ~ing Jewish ~ if the (ircumcision wasperformed by a non-Jew. this lenient rule deI'S not apply. See MishpateiShmuel, No.1.

26. KiddlUlli>1 69a. See also 68b.

IS< THE JOURNAL OF HALACHA

these far-flung members of our people who had no awareness ofthem. In other words, since Ethiopian Jews trace their lineage tothe losl ten tribes of Israel who were exiled long before many ofthe laws concerning divorce weTe formulated by Talmudic or post­Talmudic authorities, perhaps they may claim exemption from suchlaws and are justified in administering divorces in the manner thathad been practiced in Israel before their exile. According 10 suchlogic. not only would the question 'of mamzerut be resolved, butthere would be room to argue as well that Ethiopian Jews need notcelebrate Purim, for example, because they were separated fromKlal Yisrael before that holiday was instituted and never accepted itupon themselves.

Such a solution, however, does not stand up to rigoroushalachic scrutiny. In fact, all laws originating from the GreatSanhedrin or the Talmud certainly apply even to segments ofJewry unaware of their institution. As for the Sanhedrin, one needgo no further than the verses in Devarim 17:10-11 to see the vastlegislative authority of that judicial body: "And you shall actaccording to the word spoken to you from that place [i.e. theTemple, where the Sanhedrin was located] ... do not stray right orleft from what they tell you." The Rambam27 spells out themandate of the "Great Beth Din (Sanhedrin) ... they are the pillarsof instruction from whom laws and statutes issue forth to allIsrael." Laws made by the Sanhedrin were binding on all Jews,regardless of location.u

But even after the cessation of the activities of the Beth DinHaGadol, the SeIer HaChinuch 29 points out, the very same Biblicalpassage binds all Jews to obey the laws enacted by the great Torahauthorities of every generation. Therefore, when, as the RambamwritesJO , Ravina and Rav Ashi assembled all the sages of their time

27. Hi/clIO! Mamrim 1:1; see also Chinuch, Mitzvah 495.28. Exactly when the period of the Sanhedrin HaGadol's po_r came to a close may

be, according to Rav Soloveitchik. a dispute between the Ramban and Rambamin Sefer HilMi/Waf, regarding Kiddush Hllchodesh. (Mitzvat Aseh 153).

29. Mitzvah 496.30. Introduction to Mishneh Torah.

DETERMINING JEWISH STATUS

to adopt the laws of the Talmud, those laws became binding uponthe entire Jewish people. This binding nature of Talmudic laws,due 10 their acceptance by all the sages of the time, is expressed bythe Talmud through the phrase Ravina ueRau Ashi sot hora'ah31 ­

"Ravina and Rav Ashi mark the end of authoritative halachicruling." This means that, while sages of the Talmudic period maydisagree with one another on points of law, no sage of the post­Talmudic period may disagree with a sage of the Talmud. Thereason for this is that since the era of the Talmud, there has notbeen a convocation of all the Rabbis of a generation for legislativepurposes. Consequently, only the laws of the Talmud becameuniversally binding and impervious to later assault. Even as theSanhedrin constituted Torah leadership for purposes of obligatingall Jews to follow certain laws, so too did the Talmudic sagesembody Torah leadership for the same purpose. Subsequent laws,however, bind only the followers of the particular Rabbis whoenacted them. Each congregation or community would follow itsown post- Talmudic laws and customs. n Only from this area oflater law could Ethiopian Jews conceivably claim exemption;everything through the Talmudic era would be fully binding onthem.

We are left, then, with a problem of possible mamzerut thatmust be addressed. Assuming that the laws of Jewish divorce were

31. Bava Me/loia 86a. Some authorities consider that the laws of the Talmud arebinding to the same degree as the decisions of the Great Sanhedrin. See VilnaGaon, CII. M. 25:6 and RtSpol15l1 Maharam SchiCK, Y.D. 115:3.

32. The Chaloon Ish (Yorell Deah) explains the overall structure of th~ rules:essentially the law requires one to follow his Rabbi in matters of halacha. Evenif the Rabbi is a minority opinion, his followers may practice according to hisruling. What is more, they may continue to do so even after the Rabbi's dealh.The community of Rabbi Elieloer the Great followed their revered teacher'sminority view regarding the permissibility of performing mtlchshi.ei milah onShabbat, even after the duth of Rabbi Eliezer. The Sanhedrin and the sages ofthe Talmud are considered halachically to be the Rebbeim of an the Jewishpl'Ople. Similarly the Tosafot write (Baua Kllmm" 41b.) that the gedolei hlldorare considered a person's Rebbeim m"ul>llk;m, even if he never studied directlyunder them.

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not properly kept, this entire group would be salek mamzerim. Notonly individuals can be classified safek mamzer; families and wholegroups, as well, can be so labeled. The classic case of an entirefamily is known in the Talmud as a/manat issa, and is treated inKetubot and Kiddushin. JJ As for a group, the Vilna CaonJ4 drawsour attention to a passage in Kiddushin J5 where the Cuthean sect,being unfamiliar with requisite laws, are declared safek mamzerim.Such a designation would apply to any group which lacksknowledge or practice of the necessary laws. How, then, can weresolve the problem of possible marnzerut with regard to EthiopianJewry, and thereby alJow them to mingle and marry freely amongKlal Yisraeli'

Sfok SfokaIn a different context HaRav Ovadiah Yosef36 suggests a solu­

tion based on a sfek sfeka - the compounding of two doubts inparticular fashion. The reasoning of this sfek sfeka runs asfollows: perhaps over the centuries, there was so muchintermarriage, coupled with the acceptance of improperly-convertedgerim, that the majority of these people are descendents of oon­Jews and therefore not subject to the stain of rnamzerut. And evenif they be Jews, each is only a salek mamzer, and may actually notbe a mamzer at all. On this basis, Rav Yosef rules that, after thenecessary gerut process, Jews of questionable origin may marrywithin the ranks of the Jewish people.

The guiding assumption of Rav Ovadiah's solution is that asfek sfeka may be used to resolve problems of mamzerut. Thatassumption is not without its difficulties, as will become clear uponfurther examination.

Although normally when faced with a doubt regarding aBiblical law we opt for the more stringent of two possible courses

33. Ketubol 14a; Kiddushhl 75a.

34. 10"111'" HIlE::.tr 4:101.

35. 7Sb-76a.36. See note I above.

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of action (sleka d'oraita lechumra), the law of mamzerut is one ofseveral notable exceptions to the rule. The Gemara in Kiddushirr 37

deduces from a verse that salek mamzer eino rnarnzer - on aBiblical level, a doubtful case of mamzerut is not classifiedmamzerut. Only rabbinically is a salek marnzer considered amamzer. The Atmei Nezer3S explains the mechanics of this law.This is not a case of a salek d'oraita being treated leniently. Ratheran essential condition for the existence of rnamzerut is yediatha'issur - a clear knowledge and determination that the issur ispresent. This knowledge is lacking in the case of a salek marnzer.Salek yediah (doubtful knowledge), according to Torah law, doesnot qualify as yediah(knowledge), and, therefore, the issurmamzerut cannot begin. And even when the Rabbis declared asalek mamzer to be a rnarnzer, they did not do away with therequirement of yediat ha'issur, but declared instead that a salekyediah is considered a partial yediah. For this reason, when there isabsolutely no yediat ha'issur we do not fear for mamzerut. This isthe basis of the ruling39 that rnishpacha shenitme'ah - nitme'ah,i.e. when it has become wholly unknown whether rnamzerut existswithin a family, the stain ceases to be a consideration. Should aparticular individual know of the mamzerut, he need not alertothers to its presence. Moreover, writes the Au"ei Nezer, theperson who knows about the rnarnzerut may even officiate asRabbi in marrying the "mamzer" and another Jew. 390 If there is noyediah (knowledge), there is no issur. 40

37. 73a.38. AVllei Neur, Eve" Ha'ezu 17.39. Even HaEzer 2:5.

39a. This opinion is alw expressed by R. Elchanon Wasserman in Dege/ Ha'o,llh93:4,

40. In this respl'Ct the law of 'Illimurul parallels the law of orlah b'chwlz 1II'Il,elz.Fruit that gro",-o; for lhe first lhree years of a tree's life is classified as or/all, andmay nol be Nten nor benefited from in any way. Should this o,lah grow,however, ovtside of thc land of Israel. several leniencies will apply, amongwhich is th{' requi,,,ment for yedia, ha';ssu,. In other words, if the fruit is nolbrow.. to be orlah - il isn't, One needn't even investigate the fruit's origin.And just as the Rabbi may marry off a "mllmur" if he is the only one aIYare ofthe "'a"'Ut"', so does the Gemara Kiddwshi" 39a rl'Con:lthat the AmOrllim used

I" THE JOURNAL OF HAlACHA

Being that even on a level of rabbinic law, yediah is aprerequisite for mamzerut, and safek yediah is considered a partialyediah perhaps even a slek sfeka does not eliminate yediah, but ittoo is classified by the Rabbis as partial yediah? If this be the case,and sIck sfeka be termed yediat ha'issur, then we are again facedwith the same problem we had with a safek mamzer - we have acase which. on a rabbinic leveL must be treated as mamzerut. Inshaft. sick sfeka may not solve Ollr mamzerut question after all.

Ra" Soloveitchik has explained that the question of whetheror not sfek sleka constitutes yediah is a major dispute amongRisnonim and revolves around the question of how we are to viewsfek sfeka in general. Does a sfek sfeka mean that there was aleidat hasafek - a doubt arose - but was resolved leniently basedon the sfek sfeka? Or perhaps sfek sfeka means that the doubt ischallenged since for a number of reasons the halacha considers nodoubt ever existed; there wasn't even a leidat hasafek demandingresolution. If we say that a doubt did indeed exist, then it isconceivable that such a doubt, in a case of mamzerut, might bec1assifed rabbinically as a partial yediah. If, however, there neverwas a doubt, then there would be no yediah, and no mamzerut,

10 f~ their orlknowinll colleagues meals that consisted of the or6h of chu'~

la'arel1.. Since the meal's partaker wasn't aware of the ;55''', tht i55.lr did notapply to him.

The most classic case, though, of the requi.ement for ytdillh is Ilwilu'- Inorder for tht laws of mourning to takt effect. the btrtaved person must knowof his 1055_ This requiremtnt providts the rationalt for the famous law that if aperson is rl'joicing .11 a wedding and, unbeknownst to him. one of his relativesh"S died, the others present who are apprised of the situation need not tell him.What he doesn't know, in aoei/llt, cannot hurt him. For this very reason thtterm "sh",,,,,h" (literally: something heard) is used commonly by th", Talmud indesnibing <lvei/"I, for th", Iwei/lIl cannot start unless the ave/ hears of his loss.

In fact. based on this requirement of yediah for awilllt. Rav EkhananWasserman, in Ko1Jt'lz He'aro/ to Yeoamof 117, comments that by right weshould require the testimony of two witnesses to establish to our satisfactionthai <loei/ul may begin. After all. if we seek yediah. W(' must use the Torah'sstandards for tstdblishment of knowledge. The reason we accepl the word ofeven one person, the Rishollim explain, (Tur. Yoreh Deah J97) is only bt'Causeauei/llt is " mi//II de'lwida /e'g/uyei - a matter whose truth must necessarilysurface _ and therefore no witness would hazard a lie. With this id",a it becomesclear thai eVl'n notification with no witnesses can be acceptable. as in the case of

DETERMINING JEWISH STATUS 1S9

even on a rabbinic leveL in any case of sfek sfeka. 41 This latterview must be the approach taken by Rav Ovadiah Yosef, who, aswe have seen, advances sfek sfeka as a solution for the mamzerut

"n alJl~/'S re..ding of " relative's demise in the obituary column of his newsp"per.Moving back to mamUrl<r, we can no .... belief underst"nd the law that only

lhe leslimony of t....o witnesses can establish a person as " mamzer (Even HaEzer2:3). See also Pilhei Tshrwah (Sub. Sec. J). Despite the fact that Rabbi Eiger..nd Rabbi Ya'akov of Lissa deb"te whether mamzerut is issurim or dauarsllebi'erua, neither Cdn assert that their dispute would affect lhe number ofwitnesses rl"quired to e'StabIish mamze",t. Even were we to assume thatmmnzer"r is issurim. we would still require the two witnesses, because onlythrough two kosher wilnesses who testify in court is it possible to creatl' thenecess"ry yediah for mamzenl1 to exist. In ",amurul. unlike aveilut, we cannotsuffice with one witness. because it is not a milIa de'avida le·glllye;.

41. This very issue of whether there is a leidat hasafck which eventually is resolvedby the ruling. or hach'a'ah. of the sfck sfcka. or whether no safek even arisesprovl.'5 pivotal in two other disputes. Firstly, the permissibility of intentionallycreating " situ~tion of sfek sfeka would depend on the two possibleunderst"ndings. The Magen Avraham to Hilchot Tzitzil (10:11) rules th"t onemay nol sel up " seen",io of sfeka de Rabbana" lekulD, because deciding adoubt Qn Rabbinic law leniently re"Uy cQnstitutes applying a hachra'ah to adoubt. "nd one may not construct a situ..tion where such "n applicationbecomes necessary. If, Ihen, sfek sfeka be viewed as a hachra'ah, one would notbe permitted to engineer such a case. See "Iso responsa Shival Zion, 45, who infact shows that this is " dispute already found in the Rishonim.

Simibrly the question of whether one might rely on a sfek sfeka in a c"seof " davar slleyesh 10 ma,;r;1l (something which will become permissibleautomatic"lIy with the p"ss"gl' of time) would hinge. as well, on the two waysof looking "I sfek sfeka. Gener"lIy. " davar slleyesh 10 ma,iri" is treated withthe attitude of: why rely now on" hach,a'1l11, when by tomorrow the item willbe permissible without need of "ny Ilachra'all at all? (See Betzalr 4a).

Thl'rl'fore, if sfek sfeka should constitute the hachra'llh of a doubt, il toowould be forbidden in a case of dlllXlr sheyesh 10 malirin. Ie inste"d, no doubtever existed, the sfek sfeka would be ~rmissible, even in such" case. See Pithe;TesllUvah to Yoreh Deah 110, subsection 11.

Which of the two possibilities do the Poskim accept? Tosafol to Kelubol14a (n1Ll'}> nm"x n··t") forbid the USe of a sfek sfekll in mllmU'lIt: theyapparently assume that" leidal haS+lfek occurs in every c..se of sfek sfeka. TheRamo, however, rules that. in circumstances of need, one may rely on a sfeksfekll, even in a ,,,se of dava, slleyesh 10 mali,i" (Yoreh Deal! 110:8). Clearly heholds there to be nO leidal hasafek "t "n. The P"ei Yehosh ..a to Ketubat 14"explains further that the particular sfek sfeka that Tosafot saw fit to forbid isnot actually a bona fide sfek sfeka "nyw"y for another reason: it does not meet

>60 THE JOURNAL OF HAlACHA

question. It is the view accepted by the RamoU and otherAcharonim, and can thus truly help us in solving our problem.

Yet even after overcoming all the hurdles encountered in thetheoretical realm, we must recognize that our sfeka sfeka has stillnot passed its ultimate lest in the hard world of facts. For any sfeksfeka to function, both of its components must be bona fidedoubts, not superficial imitations. By this we mean that each safekmust have two equally possible resolutions in order 10 form a sfeksfeka. If one side of a salek is more likely to be true than theother. the salek is said 10 be resolved via the principle of rovU

(majority), and can no longer be advanced as half of a sfek sfeka.Only if the odds on a given salek are 50-50, or if the percentagesare simply unascertainable, is the salek a valid one.

For our purposes this means that it would be necessary toconsult an anthropologist to determine whether the first safek inour sfek sfeka ("perhaps they are not Jews") is valid. If throughknown trends and statistics it becomes clear that intermarriage andthe like rendered a majority of Ethiopian Jews non-Jewish, thenour safek is resolved, and so is our mamzeruf problem. While theywould not be Jews until their conversion, neither could they everbe mamzerim. If, however, research were to reveal that the majorityare Jewish, then again our safek is eliminated, leaving us only onesalek - are they mamzerim.

Only if the numbers are half and half ~ a most unlikelysituation - or if the majority be impossible to determine, may weresort to the use of a sfek sfeka to reach our desired result: thegranting to Ethiopian Jewry of a full share in our heritage,

This essay makes no pretensions to actual psak. For a practicalconclusion to be reached, all the relevant facts would have to bedetermined and considered, The purpose of this article is not toexamine the historical background of the question, hut merely todcquaint the reader with some of the important issues that confronta pasek before rendering his decision .

.,11 th~ rN)uir~m~nts for sfek sfeka, b~inK safek ec/rad besuf ve5tlfek ec/radheta''''ovet (see Y.D. 110, p~ra!lraph 9). The Ac/ranmim accept the view of theRamo, and so, we hav~ seen, does Rav Dvadiah Yosef.

42 Cited in footnote 4L43 ,\s is evident, for exampJ~, from the discussion or the Glomara Kerubol,

Jeginning of Isb. See Slrev Slrm,,'''/a, Section I:Ill.