[Avodah] A Mamzer Marrying a Shifchah

[Zev Sero]

On 9/02/2012 12:57 PM, Micha Berger wrote:

> 1- We live in countries where slavery is illegal. Therefore, one can't
> suggest lekhat-chilah that one buy a slave in the US, it's assur.

As I have written many times before, there is no issur on violating
the law.  You will not find such an issur anywhere in the gemara or
the Shulchan Aruch or the Rambam, or any other accepted code of
Jewish law.  The problem here is not that it is *illegal* to buy a slave
(if indeed it is, which is not at all clear to me), but that in some
countries it may be *impossible*.

Let's get one thing out of the way first: the thirteenth amendment
to the USA constitution isn't relevant, because it refers only to
involuntary servitude.  As far as it's concerned there is no barrier
to voluntary servitude, which is what we're discussing.  The question
is how the laws that implement it are worded, and the history of how
the slaves who existed at the time of its adoption were legally freed.

But let's consider the case of England (and Wales), where the law is
clear: "one may be a villein in England, but not a slave".  Mere
presence in England is enough to be mafkia any kinyan haguf that one
person has over another.  Thus, if we hold that DdMD applies in England,
the shifcha solution won't work.   And the same would apply wherever
the law is similarly phrased.

Unless.  It occurs to me that since "kol tnai shebemamon kayam" is
enough to override both Choshen Mishpat and Minhag Hatagarim, why isn't
it enough to override Dina Demalchusa as well?  If the woman stipulates
that she is aware that DdM decrees such a thing to be impossible, and
nevertheless agrees to become the mamzer's property, why should this
not be valid?  Is she not sovereign over her own body, and thus capable
of assigning it to whomever she likes?  I don't know.

Here's another DdM conundrum: It is at least popularly believed that
until the mid-19th century the common law did not recognise the ability
of a married woman to own property.  She had no yad, and everything she
owned was automatically her husband's.  I don't know whether and to what
extent this really was the law, but never mind.  Suppose it to be true.
Or rather, suppose a country where such a rule is true of single women
as well; a woman is always under the authority of some man, whether her
father, her husband, her older brother, her son, etc., and has no yad
to own property.  In such a country, how can kiddushin of an adult woman
possibly happen?  Once the Torah says that she is no longer birshus
aviha, and must receive the kesef kiddushin herself, if DdM prevents such
a transaction it would seem to follow that there can be no kiddushin at
all!

Cf the Chassam Sofer's answer about mechiras chametz and stamp duty,
but I've gone on too long already.


> a- Is DDD in this sense the law on the books, or the de facto reality?
> And does your country have enough vilators (eg in the prostitution trade)
> that we can say buying people qualifies as de facto effective (even if
> illegal)?

This is surely irrelevant.  Nobody claims or imagines that the pimps
have a kinyan of any kind over the prostitutes.  The prostitutes are
not slaves at all, but prisoners.  There is no pretense of ownership
or right.  If one escapes she is not returned to her captors.  And if
the captors are caught they are arrested.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
zev at sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
		 are expanding through human ingenuity."
		                            - Julian Simon