Presumption of Jewish Identity
A woman presents herself to a rabbi and states she wants to join the congregation. The woman is unknown to the rabbi, the congregation and the Jewish community. The rabbi inquires if she is Jewish and she states that she is. Does the rabbi accept her at her word, or is the rabbi obliged to conduct further inquiry as to her Jewish status? If further inquiry is required, what threshold of proof need be met? (Rabbi Joshua Aaronson, Perth, Australia)
Jewish law, in general, determines the status of persons or things in either one of two ways. The first is edut berurah, or clear proof, whether in the form of eyewitness testimony or other evidence. The second is presumption, which itself can take two forms: chazakah, or “presumption” proper; and rov, the “majority” principle. The rules governing these processes are much too complex and detailed to summarize here. Suffice it to say that Jewish law relies upon them as grounds for action in the absence of clear proof. There are many situations for which clear proof or documentary evidence does not exist, yet the court can determine the legal status of the things or persons at issue by means of an appraisal (umdana) of what was the case prior to the raising of the issue or of what is likely to be the case according to the usual behavior of persons or things. Indeed, the most fateful sort of legal decisions-i.e., those dealing with capital offenses-can proceed from judgments based upon chazakah and rov.
Presumption has always played a crucial role in determining an individual’s Jewish status. We customarily do not ask newcomers to supply proof of their Jewishness before allowing them to join our communities. This custom is based upon the rule in Jewish law that when a person we do not know comes to us and claims “I am a Jew,” we accept that claim on his or her word alone. This rule is explained in several ways. According to some authorities, the claim “I am a Jew” needs no proof because “the majority (rov) of those who come before us are Jews”; therefore, we accept this person as a member of that majority. Other commentators say that we accept the claim “I am a Jew” because we presume that a person would not lie about such an easily-discoverable fact. In either event, the Jewish status of this person is established not by means of hard evidence but by the community’s presumption that the individual is telling the truth. For this reason, it is common practice to accept as Jewish those who come to our communities and present themselves as Jews.
How does this halakhic standard apply to the case before us? In theory, the rabbi could follow one of the above presumptions and accept this woman as a Jew on the strength of her claim alone. Yet the matter is hardly so simple. A presumption, as we have noted, is a determination of the status of a person or thing based upon a judgment as to what the status is likely to be; it operates in situations where we lack firm evidence to prove what that situation actually is. We think that there is serious doubt that these presumptions concerning Jewish status, which were formulated in an era when it was quite rare for non-Jews to seek to join the Jewish people, can be applied literally to the situation in our communities. To put this bluntly, it is no longer as “likely” as it once was that those who come before us are in fact Jews. This is not to say that these persons are necessarily of malicious intent or that they knowingly lie about their Jewishness, but rather that the once sharply-drawn definitions of Jewish identity are much less clear to many people today. An individual becomes a member of the Jewish people either through birth or through conversion. Yet in our liberal society, where religion is often perceived as a strictly personal matter and where changing one’s religious affiliation has become increasingly commonplace, many people take the position that “I am what I claim to be.” In this view, religious identity is more truly established “internally,” by one’s heartfelt association with a particular community, than through adherence to “external,” formal standards of membership. Many of us have dealt with individuals who regard themselves as Jewish but whose Jewish identity stems neither from birth nor conversion but from an emotional bond, a feeling of connection with us. Such persons might be encouraged to consider conversion to Judaism, but until they complete the conversion process they are not Jews. In addition, there are individuals who claim to be Jewish out of genuine misunderstanding of the rules that define Jewishness. Under current conditions, to apply the old presumptions without modification-to say, in effect, that anyone who claims to be Jewish must be Jewish-is quite arguably tantamount to ignoring reality.
The foregoing remarks are not to suggest that these problems have reached crisis proportions. In the vast majority of cases, we are satisfied with an individual’s statement that “I am a Jew.” Indeed, it would be tragic were rabbis and congregations as a rule to greet newcomers with suspicion and probing questions. This would violate both our common sense of decency and the mitzvah of hospitality to strangers (hakhnasat orechim). Yet there will be times when the rabbi, on reasonable grounds, will not be satisfied with the individual’s claim of Jewishness. We will not attempt to define those “reasonable grounds”; that is a matter best left to the responsible and educated judgment of the rabbi, acting in his or her capacity as mara de’atra (local authority). When the rabbi feels that such grounds exist, he or she may inquire into the individual’s Jewish status. Ideally, the inquiry will be restricted to questions of the “getting-to-know-you” variety. They should be unobtrusive and respectful of the person’s basic human dignity; our tradition, as we know, prohibits us from causing another to suffer unnecessary shame and embarrassment. Yet if the rabbi, mindful of these requirements, feels it necessary to ask for proof of the individual’s Jewish status, he or she may do so. To make such determinations, however sensitive the subject matter, is quite simply part of the rabbi’s job. And we trust that our rabbis will perform that task with diligence and with sensitivity.
CCAR Responsa Committee
. Mark Washofsky, chair; Walter Jacob; Yoel H. Kahn; Debra Landsberg; David Lilienthal; Rachel S. Mikva; W. Gunther Plaut; Samuel Stahl; Leonard B. Troupp; Moshe Zemer.
- Deuteronomy 19:16; Yad, Edut 5:1ff.
- The classic example is documentary evidence (shetarot). Witnesses are ordinarily required to testify orally in the presence of the beit din (BT Gitin 71a on Deut. 19:16 and Yad, Edut 3:4, although Rabbenu Tam disagrees; see Tosafot, Yevamot 31b, s.v. dechazu and Hagahot Maimoniot, Edut, ch. 3, no. 2). Still, a document such as a promissory note or a deed of sale is acceptable as evidence in legal proceeding on the grounds that “when witnesses sign a document, it is as though their testimony has been investigated by the court” (BT Ketubot 18b).
- For example, the articles on chazakah in the Encyclopedia Talmudit extend from vol. 13, pp. 553-760 and then to vol. 14, pp. 1-423.
- That is, we make judgments concerning blood and marital relationships based upon chazakah (BT Kidushin 80a and Yad, Isurei Bi’ah 1:20) and rov (BT Chulin 11a-b). These judgments, in turn, determine the application of the prohibitions against incest and adultery, both of which are punishable under biblical law with death.
- In the words of the 13th-century R. Moshe of Coucy (Sefer Mitzvot Gadol, negative commandment no.116): “It is common practice (ma`asim bekhol yom) that, when visitors come to our communities, we do not investigate their origins. (Rather), we drink wine with them and eat the meat that they have slaughtered” (two things that these Jews would never have done had they suspected these visitors of being Gentiles).
- This rule is based upon the Talmudic discussion of the person who comes to us and claims “I am a convert to Judaism” (BT Yevamot 46b-47a). Halakhah requires this person to supply proof of conversion only if we know in fact that he or she was originally a non-Jew. If, however, we do not know this person’s origin, we accept the claim of conversion because he or she could have said simply “I am a Jew,” a claim for which no proof is demanded. The legal principle here is migo: we may accept a claim as true on the grounds that this individual could have made a more advantageous claim. Since we would have accepted on face value the claim that “I am a Jew,” there is no reason for us to doubt the veracity of the claim “I am a convert,” which entails that he or she was born a Gentile. Maimonides (Yad, Isurei Bi’ah 13:10) calls this an example of the rule hapeh she’asar hu hapeh she-hitir: a person who is the sole source of information that is disadvantageous to him- or herself (“I was a non-Jew”) is believed when he or she gives testimony that reverses the disadvantage (“…but I have converted to Judaism”).
- Rabbenu Tam, Tosafot, Yevamot 47a, s.v. bemuchzak lekha (and see below, note 8); Hilkhot HaRosh, Yevamot 4:34. See also BT Pesachim 3b and Tosafot, s.v. ve’ana.
- R. Moshe ben Nachman (Ramban), R. Shelomo b. Adret (Rashba), and R. Yom Tov ibn Ishbili (Ritva) in their chidushim to Yevamot 47a; R. Nissim Gerondi (Ran) in his chidushim to Pesachim 3b; and Rabbenu Tam in Sefer Hayashar (ed. Schlesinger, 1959), ch. 336.
- Beit Yosef
and Bayit Chadash to Tur, Yore De`ah 268, fol. 215a; Shulchan Arukh, Yore De`ah 268:10 and Siftei Kohen, no. 21.
- This statement remains true even in North America, where the Reform movement has modified the traditional standards of Jewish status with the CCAR’s Resolution on Patrilineal Descent. Under that resolution, a child of one Jewish parent (either father or mother) may qualify as a Jew by performing “timely public and formal acts of identification with the Jewish faith and people.” Yet this possibility is open to the child because he or she was born to a Jewish parent. Conversely, the child of two Jewish parents remains Jewish under our definition even in the absence of such “timely and formal acts.” Thus, Jewishness for us continues to be established on the basis of birth or conversion. For details, see Rabbi’s Manual (New York: CCAR, 1987), 225-227.
- For example, the determination of Jewish identity under the CCAR’s Resolution on Patrilineal Descent (see note 9) can be a source of uncertainty. Just what the resolution means by “timely public and formal acts of identification with the Jewish people” is not yet a matter of precise definition, and until that question is clarified we can expect confusion as to “who is a Jew?” according to the terms of the resolution.
- See BT Shabbat 127a-b, where hospitality is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1).
Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8.
If needed, please consult Abbreviations used in CCAR Responsa.