Q&A: The Justification for the Custom of Kitniyot Nowadays
The Justification for the Custom of Kitniyot Nowadays
Question
Rabbi Michael, greetings and blessings!
A question reached me asking me to respond to your remarks about kitniyot, and I answered as seemed correct and true to me. It was not pleasant for me, but I saw no other choice. At least I do not want to be among those who "strike their fellow in secret," so I am informing you of it. The remarks appear here: http://www.yeshiva.org.il/ask/103636
I omitted your name and the link to your article from the question, so that the discussion would focus on the matter itself and not on the person.
May it be God's will that we merit to arrive at the true meaning of Torah, and "love truth and peace."
Answer
Rabbi Shmuel, greetings.
Many thanks for the update. Your words are written gently, as is your way (unlike me), and I see them as an important and substantive discussion, again as is your way. By contrast, I must say that my own remarks on this issue really were written in anger, and therefore the style was definitely too sharp, and I regret that. But as for the substance, although as is your way you present it very cautiously, in my humble opinion my basic position has not changed.
Let me begin by saying that my main problem with this custom is that it has become something that overshadows all of Passover and restricts us in a way that is completely disproportionate relative to its flimsy and disputed rationales, if it has any at all. Everything gets prohibited out of concern for kitniyot. This weak and remote concern shapes the entire Passover and makes us and Jewish law look foolish, and that is what angered me about the matter. I would say that confusion between kitniyot and grain can actually be caused precisely by this custom, which treats them similarly by prohibiting both.
Second, they have turned this into a "decree of kitniyot," when this "decree" was accepted in a period in which there was no institution authorized to issue decrees such as these, namely the Sanhedrin. At most, a rabbi can decree for his own locale. No more than that. It is clear that this is apologetics, even though the term appears already in earlier periods, trying to prevent a necessary change. That is why I wrote that this is not a decree but a concern. Let me clarify.
When there is a concern and an authorized institution decides to enact a decree because of it, then it changes from a concern into a decree, and now even if its rationale lapses it is difficult to revoke it, though possible. But when a concern arises in a certain place and under certain circumstances, in the absence of an authorized institution, then there is no obligation to continue it and not even to observe it. There is only an obligation to be concerned where the concern actually exists. The difference is that when the concern ceases, the rule ceases as well, unlike a decree, and there is no need to annul the concern in a religious court. Therefore examples from customs and concerns in the Talmud are not relevant to the discussion. The Talmud is considered an authorized institution, like the Sanhedrin, and therefore its concerns are usually treated as a decree and not merely as a concern; the example of the "chavrei" in tractate Beitzah is an extreme case in this regard.
As for your other points:
1. I do not see a contradiction in what I wrote. I wrote that the custom has no rationale today, but in the past it apparently did, though I do not know for certain what it was.
2. When there is a concern for leavened food, the item should be prohibited to everyone, regardless of custom or decree. That is a concern, and it is not connected to who had the custom to prohibit it and who did not.
3. Those who defend this custom point to the mixing in of actual leaven in a way that is genuinely prohibited, a clear leaven mixture that is prohibited at least by the rule of "reawakening," and they would prohibit this in any other product. For some reason, with kitniyot they prohibited it only for those who had the custom. Therefore I do not accept these arguments. Likewise, many people tell me about grain being mixed into rice, and I, for my small part, have never in my life seen a grain of wheat in a bag of rice in our home.
4. The discussion about the kitniyot that existed in their time as opposed to newer ones, or green kitniyot and non-green kitniyot, things derived from kitniyot, and the like, is utterly irrelevant to this concern. The words of the halakhic decisors who deal with these distinctions prove that this is not about a concern for leavened food but merely a custom.
5. The rationale that one might come to mix kitniyot with grain should be applied according to the degree of similarity in appearance or form, not according to a blanket "decree of kitniyot." That is not what is actually done. I am not even talking about noodles and other Passover products that really do look very similar to leaven. The concern that people might come to mix them seems very puzzling to me.
Therefore all these seem to me like after-the-fact justifications, and they do not suffice to defend such a foolish custom. And again, even if I am willing to accept that this custom has distant rationales, the fundamental problem is that when such a custom takes on outrageous proportions relative to its rationales, in my opinion the proportion borders on insanity, it should be abolished, because the desecration of God's name, the mockery, the suffering, and the confusion it creates constitute serious harm that far outweighs the benefit, even if there is some. Quite a few such decrees and concerns, even ones that were decrees from the time of the Talmud, have already been abolished because of similar considerations; see examples in the final chapter of Rabbi Guttel's book The Changing of Nature. The core problem is the proportion that this custom has taken on, and the way it is treated like a decree, which is sharpened greatly in light of the weakness of its rationales. That is what aroused my anger.
I sent this correspondence to my site for the benefit of readers.
Discussion on Answer
A. First, let me preface by saying that your comments about selling small livestock are unclear already in the Talmud/Mishnah itself. It may be that after they established that in a place where the custom was to prohibit it is prohibited, and where they did not have the custom it is permitted, this became a decree, that is, a law, albeit one applying only to those places. Something similar applies to doing labor on the Ninth of Av and more. Especially when such things appear in the Talmud, the halakhic decisors see them as a binding determination that has gone beyond mere custom, although I myself still need to think about why that is so. Perhaps it is because the Talmud is regarded as a source for all Jewish communities, not as local customs valid only for their own time and place. But in any case, that is true only regarding the Talmud, which has binding and universal status, as I wrote above.
Second, the custom of selling small livestock that you brought is itself actually a counterexample. The Shulchan Arukh explicitly wrote, Yoreh De'ah 151:4:
"In a place where the custom is not to sell small livestock to idol-worshippers, one does not sell. And everywhere one may not sell them large livestock, nor to a Jew suspected of selling to them, unless through a broker, or if one knows that he is buying it for slaughter. And now the custom is to permit this everywhere."
There you have it: they abolished this custom without hesitation. According to my view this makes excellent sense, since this was a concern that was not established as a decree but at most as a custom to be cautious. And see there in the commentaries for the explanation of why this no longer applies nowadays or why there is a need nowadays to change it, and in my opinion those explanations are even flimsier than what exists regarding kitniyot. In any case, regardless of the explanations, this is a proof to the contrary. The Shulchan Arukh and its commentaries did not nullify it through indirect maneuvers; they simply abolished it, period. Moreover, nobody thinks of reinstating it today, even though some of the reasons and needs are no longer present.
B. Customs generally do not arise in order to be concerned for a remote concern. Usually a custom is not founded on a concern but on some other religious objective. It makes no sense to worry about something that is completely permitted according to Jewish law. If it is permitted, then it is permitted. True, there is room for a local custom to be concerned for remote concerns that are not legally prohibited, for various reasons brought about by time and place, but that is only where in that place the remote concern is less remote or more dangerous, such as the enactment of the Aleppo community in New York not to marry converts out of concern for intermarriage, and even on that there has already been controversy.
And especially to take such a custom out of all proportion and make it a permanent obligation for all their descendants, namely Ashkenazim, is very problematic.
Beyond that, as I wrote, the concerns people talk about were not necessarily remote. Apparently in their time they were significant concerns, and perhaps that explains the use of the word "decree" when it was used in this context, as opposed to other times and places where the concern is remote. Today it is remote, and it makes no sense to be concerned about it, unless this were something symbolic, say not eating rice, or retaining some minor remembrance of this old custom, in which case I would not protest. That is exactly my claim: this is a concern, not a decree, and not necessarily even a custom. Later on it was perpetuated and became a custom through a strange process that I do not understand.
And especially since those who defend this custom bring hair-raising data about the concern for actual leaven. I have heard from a good number of people that they are talking about definite leaven. That is unconvincing apologetics. If so, they should have prohibited it completely as a matter of Jewish law.
C. When everyone invests so much in workarounds, that is a sign that people and halakhic decisors understand that this is something anachronistic that really ought to be abolished, but they do not dare do so. To circumvent in such twisted ways something that has no real basis, as though this were a legal fiction around a full-fledged law, is ridiculous. And that is exactly my point: it should be done openly so that we do not become an object of ridicule.
Apparently we remain, surprisingly, in disagreement.
All the best!
What the Rabbi said about customs turning into laws is a bit difficult for me. Ever since I was a child, I learned in elementary school that there are two kinds of halakhot: laws and customs, regardless of the level of obligation involved. If customs carry no obligation at all, why deal with them in the first place? It would seem that even without being laws they still have some kind of intrinsic binding force, otherwise how could it be that "custom overrides Jewish law"? Apparently the source of what the person who taught me in elementary school said is Maimonides, who divides the Oral Torah into five parts. The first four parts, including in the fourth decrees and ordinances, are called laws, and the fifth is customs. I have seen online people asking for the source of the phrase "A Jewish custom is law," and of course there is no such phrase; rather, the expression is "A Jewish custom is Torah." Besides that, in the Laws of Rebels Maimonides again speaks about decrees, ordinances, and customs, those created in the period of the Sanhedrin, that it is forbidden to violate because of "do not deviate," and those intended to make a fence around the Torah cannot be annulled even by a religious court greater in wisdom and number. It does not seem that labor on the Ninth of Av or small livestock belong to those categories, since those customs would need to spread through all Israel and not pertain only to one place, and yet it still seems from the Mishnah that they obligate the people of their own place. In short, a custom does not need to turn into law in order to obligate the people of the place that observed it. It is indeed unclear why today all Israel is forbidden to do labor on the Ninth of Av; it does not seem that this custom spread because of the words of the Mishnah, and perhaps the Rabbi is right in that case. Obviously not every custom is binding; one can discuss the parameters of spinning a dreidel and eating sufganiyot on Hanukkah, one dreidel spin immediately after lighting candles and an egg-sized doughnut every day.
Indeed, completely aside from that, there is apparently some mechanism that allows even binding customs to lapse, as with small livestock. Maybe the first authorities who deviated from the custom really did violate a prohibition, but once a critical mass of violators was reached, say 50 percent, the custom was nullified. But I do not think that is what happened with small livestock, and it seems that this custom lapsed smoothly, from the wording of the Shulchan Arukh, "and now the custom is to permit this everywhere," and he writes that quite calmly.
I did not understand what your remarks are referring to.
I am sorry, that was my mistake. I was referring to your remarks in section A of your last comment here in the thread, where you said that the custom not to sell small livestock turned into a decree, meaning a law in your terminology, for all Israel, and likewise labor on the Ninth of Av. Many people also call a custom a law when they want to say that a custom is binding, and that is not correct. I wanted to comment on that, and I did not notice that the Rabbi himself had also distinguished between the two concepts.
Greetings and blessings!
I will not address every detail, but I will briefly make three main comments:
A. I do not understand your distinction between customs mentioned in the Mishnah and Talmud and later customs. In matters that were prohibited in the Mishnah and Talmud as law and ordinance, there is certainly a difference between the authority of the Sages to decree prohibitions and enact ordinances for all Israel and the authority of later sages. But here we are talking about things that the Mishnah and Talmud did not prohibit. The Mishnah and Talmud say that strictly speaking this is permitted, and they report that it was prohibited in certain places because of local custom. There is no ordinance of the Sages here giving it force; the force comes only from the custom of the people of that place who practiced it. In this matter of local custom, there is no difference whatsoever whether that custom arose in the period of the Sages or in later periods; the force is exactly the same.
B. You keep claiming that if there really is a concern for leaven here, then it should be prohibited to everyone. But that is not so. The Torah did not obligate us to be concerned for every possible concern. Jewish law defines a certain threshold that one must be concerned about, such as "we are not concerned for a minority possibility," "we do not presume a prohibited status," and so on, and beyond that it is permitted as a matter of law, even though the concern exists to some degree. But a decree or custom can certainly raise the threshold and take into account concerns beyond the level required by the law itself. In such a case, if it is a decree of the high religious court or of the Sages, then everyone must take it into account even though it is a remote concern, and if it is a local custom, then only the people of that place must take it into account and not others. And that is the situation with kitniyot, which were prohibited by custom.
C. As for your claim that this custom has gotten out of proportion and overshadows all conduct during the holiday, one can question that, both factually and in terms of the halakhic weight of such a claim. But even if we accept the claim, there is a simple solution within the framework of the custom itself: to permit a mixture containing kitniyot, meaning anything in which kitniyot are not the majority and are not recognizable. This permits all meat, dairy, candy, and similar products, even though they are labeled "for kitniyot-eaters only," and leaves only clearly kitniyot foods off the menu. In my humble opinion, this has a strong basis in the halakhic decisors, and that is what we wrote in our book And You Shall Eat and Be Satisfied, and that is what several important rabbis have ruled, though of course many also prohibit it, and I certainly understand their reasoning as well, but this is not the place to elaborate.