On the "Decree" of Kitniyot, Conservatism, and Desecration of God's Name (Column 2)

With God's help

A short email response of mine on the subject of kitniyot was published on this site. I write there that I see no reason whatsoever to keep this custom, and over the years I have become more and more lax about it (like most of us), until I finally decide to let myself off the leash entirely (apparently already this year, God willing). I will open with a prayer: May it be God's will that Whoever breaches a fence will be bitten by a snake (“one who breaches a fence will be bitten by a snake”) not be fulfilled in my case, although the halakhic authorities have already written, regarding the prohibition of uncovered water, that we do not worry about snakes nowadays. By contrast, when it comes to the "decree of kitniyot," it seems the snakes are alive, well, and kicking. Were it not for them, long ago no one would still be punctilious about this ludicrous nonsense.

Why does this rule infuriate me so much, far more than many other foolish things we all do? First, because it has not the slightest rationale of any kind. Second, because there is absolutely no obstacle to abolishing it immediately. And third, and this is the main point, because it is harmful and causes Jewish law to appear as a stupid anachronism, thereby creating a great desecration of God's name (more within the community committed to Jewish law than outside it. Those outside have long since been convinced, and not without considerable justice, that we are all crazy). I hate behaving like an idiot, and no less than that, I hate looking like an idiot. But never mind me—when Jewish law looks and is perceived this way, should that not trouble all of us? The Sages tell us that the nations of the world taunt Israel over the red heifer, which has no apparent rationale. But there I am calm, because I know there is a reason behind it, even if I do not understand it. The Holy One, blessed be He, who commanded it certainly knew what He was doing. I do not know how paracetamol works, but I trust the doctor who tells me to take it to lower a fever or prevent pain. But when I and many of my friends taunt ourselves over kitniyot, can I be equally calm? Does that too have some unknown rationale? If anyone knows such a rationale, please update me urgently. If only for the sake of the joy of the approaching holiday.

This strange and irritating custom apparently began in Ashkenaz in the Middle Ages. Its source is unknown, and many have tried to explain it without much success. I once heard from Rabbi Medan (head of Yeshivat Har Etzion) that he knows twenty-two reasons for reading the Book of Ruth on Shavuot, but only one reason for reading the Book of Esther on Purim. That is exactly what the multiplicity of reasons for the prohibition of kitniyot looks like. It is commonly thought that this is because, in that period, cases were common in which grain became mixed into packages of kitniyot, and so the holy flock of Israel, who guard themselves from anything leavened on Passover, adopted the practice of avoiding kitniyot (not everyone, of course—not even in Ashkenaz). Others argue that this is a stringency in accordance with Rabbi Yochanan ben Nuri, who holds that even rice can ferment. This despite the fact that by all opinions Jewish law does not follow him, and despite the fact that his words concern rice, not kitniyot in general. There are various other strange explanations, and I see no need to go through them all. None of them is persuasive, and certainly none would be enough to persuade a reasonable person today to begin avoiding kitniyot on Passover. It seems to me that the following a priori analysis suffices: on Passover there is a prohibition of leaven, period. Kitniyot themselves are certainly not leaven. Therefore, a prohibition on eating kitniyot that developed in some place and time, assuming of course that it was not sheer nonsense, can be only one of two things: 1. A concern arose there about leaven that had become mixed in (as above). 2. There is no concern about leaven, in which case adding such a prohibition would involve Do not add [to the commandments] (adding to what the Torah prohibited). In order not to cast aspersions on the earlier generations, who were neither ignoramuses nor transgressors of Do not add [to the commandments] (and of course, even if they were, we would have no obligation to continue in their path), the conclusion is that there was apparently some concern about admixture with leaven. QED.

But that was in their time, and if so, they did well to avoid eating kitniyot. What does that have to do with the learned halakhic responsa that are published on this subject nowadays? Today it is clear that no such concern exists. First, I do not recall ever finding grain inside packages of kitniyot. For some reason, the greatest strict constructionists regarding kitniyot keep reporting that they find grain in rice time and again. Why on earth does this happen only to them? Why should the Holy One, blessed be He, not grant even me, His faithful servant, the privilege of finding a grain? In any case, astonishingly enough, people I know have not really had this thrilling experience. Second, even if such a grain is sometimes found, it is obvious that this is an exceedingly rare case. Especially since, under the commercial standards currently practiced in our developing state, the presence of gluten in a product in which it is not declared is very serious legally (for those with gluten sensitivity: you could make a lot of money if you find a grain of wheat in rice. Please report any such case to me). And third, mistakes do sometimes happen, but one does not build policy on mistakes. I am sure there has been some case in which someone found a grain of wheat in a sack of potatoes, or in a can of tuna. Does anyone think we should therefore prohibit potatoes or fish on Passover? I will reveal a secret to you: I assume that from time to time people have even found wheat in matzot, heaven forfend. Clearly there is no real concern about admixture of leaven in kitniyot, or in anything else, and even if there were some remote concern, that would not be a reason to prohibit kitniyot on Passover.

So what do we do? Most of us, from greatest to least, find various ways of cutting corners, and these expand from year to year. Oil made from kitniyot was already permitted long ago (by Rabbi Kook and even before him). Varieties of kitniyot that did not exist in the Middle Ages—many halakhic authorities, including conservative ones, permit quite freely. Some permit mixtures containing kitniyot (in which case almost all products that contain even a trace of kitniyot are permitted, for the public's information). It is obvious that if there were a real concern about leaven here, no one would permit any of this (the concern about finding a grain of wheat exists in quinoa exactly as much as in rice. For everyone's information, we do not live in twelfth-century Europe but in the State of Israel of the twenty-first century). These are evasions whose purpose is one thing only: to work around this fossilized stupidity by various means, out of a sense that we have no straightforward way simply to get up and abolish it. But that is what we really ought to do.

After all the learned and utterly unconvincing explanations offered for the prohibition of kitniyot, it is clear to all of us that we are bound by a bizarre custom that developed over the years and became a monster swallowing Passover whole. Today our field of vision is covered mainly by kitniyot. Most of the preparations for Passover, the constraints in cooking, food preparation, and shopping, concern kitniyot. After all, if kitniyot are permitted, there is almost nothing problematic about Passover. Everything has substitutes. And again, my problem is not that one cannot eat rice or that I suffer on Passover (that too is true, but for the sake of truth one suffers). I suffer because I feel I am occupied with anachronistic nonsense devoid of all sense and substance. On the other hand, for some people that is precisely what makes the holiday. Without kitniyot their holiday would look like an ordinary weekday. You have to have some irrational prohibition in order to feel religious, no? This is my favorite proverb: It's too good to be KOSHER.

In a joint interview conducted by Sarah Beck with Rabbi Navon and me on Galey Israel Radio (21.4; see link below), Rabbi Navon said that these customs are the aromas of the holiday for all of us. If we were to abandon the customs and focus on Jewish law, nothing would remain of our religious way of life. Thus the Seder night could, from the standpoint of Jewish law, be compressed into an hour including the meal (mentioning the Passover offering, matzah, and bitter herbs, reciting Hallel, and eating what one must eat). Thus Kol Nidrei becomes the holiest moment of Yom Kippur even though it is merely a formal process of annulment of vows, marginal and not really necessary on Yom Kippur. I argued that, in my opinion, there really is a loss of proportion with respect to customs. With all due respect to aromas, in matters of smell and fragrance I leave things to each person's discretion, not to the supervision of the rabbinate or to halakhic decisors. First and foremost, the holiday is governed by Jewish law, and the aromas at most accompany it. Today the situation has reversed itself, and the aromas cover most of the picture and have even become an issue of Jewish law. Second, I certainly do observe certain customs (customs do have standing in Jewish law, apparently from the verse Do not forsake the teaching of your mother [“do not forsake your mother's teaching”]), but only such customs as have some reason to them. Thus the customs of Kol Nidrei and the Haggadah certainly do have a point. So I am careful to distinguish between them and actual laws, but by the same token I also observe them. But what does any of this have to do with foolish customs like kitniyot?!

We are dealing with a custom, a decree, or a concern, whose rationale has lapsed according to everyone (everyone sane and intellectually honest, that is). What remains for us to examine is whether our hands are indeed tied, in the absence of authority to abolish such historical traps. Is there really nothing to be done? Can we not kill the monster with our bare hands (as the saying goes: without a Sanhedrin and without "B'Tselem")?

What underlies the discussion of authority is the claim that one cannot change decrees or customs even when their rationale has lapsed (as Maimonides writes in chapter 2 of Hilkhot Mamrim). Here we must distinguish among three kinds of laws: decrees, customs, and concerns. A decree is an ordinance of an authorized religious court that forbids some specific thing (usually out of concern lest people come to violate a Torah prohibition). A custom is a situation in which the public begins to act in a certain way even though Jewish law does not require it. And a third thing is a concern. A concern is a different kind of custom. Suppose there is a pothole at some point on the road. People naturally drive around it so as not to fall into it. This went on for a generation or two, until the municipality finally remembered to repair the hole. Must we now continue to steer around that point because there is a custom (an ancient one!?) to do so? Does it depend on how long the practice lasted? (one year, or two hundred years) Presumably not. Kitniyot were at most a concern, not a custom and certainly not a decree.

Some people use the term "the decree of kitniyot" in order to strengthen the obligation to keep away from them. This is nonsense, for there is no decree here, and at the time this practice began there was no religious court authorized to issue a binding decree (cf. Holocaust Memorial Day, Independence Day, and the like), and as far as I know, in practice no one did so either. This is apologetic terminology whose purpose, at least today, is solely to defend a concern whose day is long past. For the sake of completeness I will note that even if this were a decree, then even regarding ordinances and decrees—where the rule is that a religious court (usually greater in wisdom and number) is needed in order to repeal them—sages throughout the generations did repeal quite a few of them when the rationale had lapsed, when the matter was necessary, and when continued compliance was harmful. See many examples in the last chapter of Rabbi Neria Gutel's book Hishtanut HaTeva'im ba-Halakhah, and there are quite a few others as well. To take an example from the Seder night: washing one's hands for food dipped in liquid, which is an explicit enactment in the Talmud. Yet several important halakhic authorities wrote that once the laws of ritual purity and impurity ceased to apply, there was no reason to do this, and indeed an overwhelming majority of those committed to Jewish law do not do it today (even though according to most authorities the practice is still necessary today, because we do not have the power to repeal enactments whose rationale has lapsed).

Seemingly, the conclusion is that this is a custom and not a decree. But even regarding customs, many halakhic authorities wrote that a foolish custom lapses on its own. If the custom of kitniyot is not a foolish custom, then I do not know what a foolish custom is. So if that is true for ordinances and decrees, then regarding customs all the more so.

So what are we left with? A concern. Kitniyot are (or, more precisely, were) a concern. But with a concern, we have seen that the rule is that once the concern disappears, the need for the action disappears as well. The matter is analogous to eating food about which there was once a health concern, but which in the meantime has been shown to be unfounded, or for which we found another solution. Is it still forbidden for us to eat it? It is important to understand that a concern is not an obligation of any kind. A concern is a psychological state, not a prohibition and not even an issue of Jewish law (even where the concern is about a transgression of Jewish law). When there is a concern, one refrains from something—and rightly so. When the concern disappears, one stops refraining—and even more rightly so. In my eyes, refraining from eating kitniyot today is akin to insisting on crossing a road only at a crosswalk when there have been no cars in the world for hundreds of years.

As stated, this concern (not a decree and not a custom) is not only stupid and irritating; it is gravely harmful. It causes a terrible desecration of God's name, presenting Jewish law as a fossilized and foolish system, clinging to practices whose day has long passed. This reminds me of the hackneyed story about the Rebbe of Gur, who, when he came to light the Hanukkah candles, asked his attendant to remove the broom that was standing next to the menorah. He explained that he did not want all the hasidim, the following year, to place a broom next to the menorah at the time of lighting. The attendant removed the broom, and what happened the next year? All the hasidim placed a broom there, removed it, and only then lit the candles. We are all used to laughing at that bizarre story, while at the very same time we all behave exactly like those hasidim. The concern disappeared long ago, and we are still investing our strength and our money in avoiding the fear of kitniyot on Passover, heaven forfend. What is the difference between the cases? Why does everyone laugh at that, whereas here everyone behaves like the last of the foolish hasidim? Jewish law is not anachronistic, but those who mock are right about the way it is conducted nowadays. An ever higher percentage of the laws we observe are anachronistic. Some of them unfortunately cannot be changed (as I described above), but why not change at least those that can be changed? Why idealize stupidity and petrification?! As stated, when there is harm one can even repeal decrees, but in our case we are dealing with a concern, not a decree, and for that no special arguments are needed. Let us open our eyes, and discover to our astonishment that we are in Israel of the twenty-first century and not in medieval Europe (some people, apparently, have already been asleep for a thousand years). Here, this concern does not exist. Period.

At the margins of my remarks I will address a question several people who heard my view have asked me. What about soaked matzah (gebrokts)? And enriched matzah? This confusion proves my claim about the blurring together of foolish customs, stringencies, and laws—the blurring created by the policy that turns kitniyot into an article of faith in order to defend this sacred prohibition. The basis of soaked matzah is a concern about remnants of flour in the product that might ferment when they come into contact with water. This is a remote concern, and many do not practice it, but it is still not nonsense. It is a concern about leaven, admittedly a remote one. What has that to do with kitniyot?! Regarding enriched matzah, the situation is even more severe. According to quite a few halakhic authorities (among them the Rema, whom Ashkenazim follow), enriched matzah ferments more than dough kneaded with water (see Beitzah 7b, where it appears that the stronger the fermentation, the more severe the prohibition, and therefore there is stronger reason to prohibit sourdough than ordinary leaven). Therefore the stringency here is a matter of Jewish law, and even if there is a dispute about it, that is perfectly fine. There are disputes in Jewish law, and each person should act in accordance with his own position. But in the case of kitniyot this is not a dispute, but a historical accident. Ashkenazim got stuck with a stupid historical accident, and they insist on moving the broom again and again, lest the mythical snake of the fence-breakers bite them.

So please, I beg you, let me go from slavery to freedom and, this Passover, stick my neck out for your sake. And as the sages said: "I don't know why I deserve a commendation; all I wanted was to get home safely." Have a happy and kosher holiday.

After some time I remembered Tosafot on Beitzah 6a, s.v. But nowadays, who wrote that no quorum is needed to cancel a concern:
But nowadays, when there are haverim, we are concerned—Rashi explained that they force Jews to do labor, and when it is a festival they leave them alone; but if they were to see Jews burying their dead, they would force them to do labor. Therefore now, in our time, when there are no haverim, it is permitted. And one should not say that another formal court quorum is required to permit it, for since the reason was due to a concern, and that concern has passed, the reason has passed as well. So too we say regarding uncovered water, that it is forbidden lest a snake drank from it; but now, when snakes are not commonly found among us, we drink from it even ab initio, even though it was a matter established by formal enactment. Nevertheless, Rabbenu Tam would prohibit it.

Exactly as I wrote in the column here.

• For the interview on Galey Israel, listen here at the beginning.
• A detailed response by Rabbi Shmuel Ariel
• A response by Rabbi A.
• A video by Rabbi David Bar-Hayim on kitniyot