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The Great Kitniyot Rebellion: Searching for Modern Halakhic Authenticity 1

jrosenfeld@lss.org

1. b. Pesachim 35a

Mishna: These are the items with which a person may fulfill his obligation during Pesach - wheats, spelt, oats, barley, and rye

Gemara: ...these, yes, but rice and millet no. From where do we know these words? R. Shimon b. Lakish said the verse states - do not eat upon it Chametz, all seven days you shall eat [upon it]

Matzot, [meaning] things which can become Chametz, a person may fulfill with them his obligations for Matzah, excluding those things which do not become Chametz but rather decay. [This proves] our Mishna is not like R. Yochanan b. Nuri, for he stated that rice is a type of grain,

and one is liable for Karet on [eating] its Chametz and one may fulfill his obligation for Matzah through it.

2. Maimonides, Hil. Chametz uMatzah 5:1

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1Iamindebtedtothefollowingtwoarticles,whichhelpedformthebackboneandthefoundationofthisShiurmaterial:R.DavidBrofsky,HilkotMoadim:UnderstandingtheLawsoftheFestivals[Maggid:2013],ch.45R.ShlomoYosefZevin,haMoadimbHalakha[Heb.,TelAviv:5748]pp.255262

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Kitniyot we have decreed that it is forbidden to cook them on Pesach even though they do not become Chametz like the five grains and one should not say that since there is no biblical prohibition involved here, one neednt worry too much, because anything that the Rabbis

decreed - one who violates it is liable for the death penalty, having violated the dictum of thou shall not depart from their words that they teach you...

8. R. Yosef Karo (Safed, 1542-1620) & R. Moshe Isserles (Krakow, 1520-1572), Shulchan Aruch w/glosses of Rema; 453:1

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Mechaber: ...they do not become Chametz and it is permitted to eat them cooked. Rema: And there are those who forbid, and the custom in Ashkenaz is to be strict on this,

and we mustn't change that. It is obvious that we do not forbid as dish in which they fell in, and it is permitted to use their oil to light with, and it is permitted to leave Kitniyot in this house...

9. R. Yaakov. b. R. Tzvi Emden (Altona, 1697-1776), Mor uKetzia #453

And in a time of need, for sure we may permit all Kitnityot to be eaten, for even our Rabbi the Baal ha-Turim, who was an Ashkenazi, and the strict custom had already taken root in his days did not pay serious attention to it, writing that it is a superfluous Chumrah and that he did not practice it. It seems that our fathers did not fully accept the custom even in his days, and that it hadnt yet fully spread, and many authorities considered it foolish, a mistake that doesnt

even require regret or annulment, as is clear from open Talmudic passages all

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stringencies with Kitniyot were expansions upon rice, and once we uproot that, the rest of the plant dries out on its own. I can testify about my own sainted father, how much that holy man would be annoyed and bothered by this custom - every Pesach he would sigh and

say if only I had enough power to cancel out this custom...

11. R. Moshe Feinstein (New York City, 1895-1986), Resp. Iggerot Moshe; OC 3:63

...but you know, that this is not a matter at all, that all things from which flour may be derived are forbidden due to this custom, as there is nothing from which you can make flour from like

potatoes and they never worried about them. And therefore, we only include in this matter things that were explicitly forbidden, that

which is known and publicized. And we might also explain the foundations behind this rule

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- that which was forbidden through Minhag, it was not done so through a gathering of Rabbis, but rather through the custom of the people who were led to be strict in this

area but because it was not decided upon formally in a Rabbinic convocation, we only forbade those types of foods which were initially singled out and did not expand the prohibition to others which were not around at the time, like potatoes, for example, which were not known at the time,

and therefore could not have been included in the prohibition, even though the exact reasoning which does apply to all other items included in the prohibition equally applies to potatoes; we do

not learn from that which was customary to forbid to things which we were not accustomed to forbid.

And so, in regard to peanuts, they were not forbidden in many places and in the place where there is no pre-existing custom, they should not be forbidden, because in these matters [i.e., the

custom itself. JR] there is no reason to be strict...

12. R. Avraham b. Yechiel Michel Danzig (Vilna, 1748-1820), Nishmat Adam; Pesach, klal #129

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And based on this, one neednt ask about the custom for Kitniyot that is practiced by us - Bnei Ashkenaz - whether or not it was made through a communal agreement or by the great Rabbis of the land in those days, because [in any event] it is simply forbidden; in fact, even if it hadnt been

made through an agreement, since [the Minhag] had already spread out, no less than that of Jewish women being stringent upon themselves

it is impossible to permit, unless everyone regrets [the Minhag], and this is to say that we need all of the countries of Ashkenaz to regret it, and if so, [still] all agree that the

annulment would not work, and it would still remain forbidden unless it was a case where there was nothing else to eat and it was a case of preserving life, but if there was what to eat

than it would be impossible to permit it.

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13. ibid., Chayyei Adam, 127:1 4

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And since our fathers custom was such, it is prohibited for us to change it, because of [the verse] do not stray from the Torah of your mother and so too with all customs of Israel that were

enacted with a specific matter, even though they didnt formally institute it, but rather acted as such on their own initiative; therefore in a time of need, when a person can only procure what to

eat with great effort, it is then permitted to cook Kitniyot and other things...

4 On Potatoes as a staple food in European Jewish life, see Philologos Blog, 3/2/11 (Jewish Daily Forward), ATruffle,and10WordsforPotato:

AhumorousYiddishsongaboutbulbestellsusjusthowbasicastapleoftheEasternEuropeandiettheywere.Itsfirststanzagoes:Zuntikbulbes,montikbulbes,/Dinstikunmitvokhbulbes,/Donershtikunfraytikbulbes,/Obershabbesinanovenehabulbekugele./Zuntikvayterbulbes.Thatis,OnSundaypotatoes,onMondaypotatoes,/onTuesdayandWednesdaypotatoes,/onThursdayandFridaypotatoes,/ButonShabbes,forachange,potatokugel./OnSunday,potatoesagain.

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14. R. Avraham Yitzchak ha-Kohen Kook (Jerusalem, 1865-1935), Resp. Orach Mishpat; no. 108-109 6

Let the self-restricting eat, be satisfied and rejoice in the great holiday which is upon is [Pesach] in the produce of of beloved land, and in the handiwork of our brothers, who make it fittingly

[=Kosher] in good spirit and mindset Dont rely on those who say it is not Kitniyot but rather all this is dealing with Kitniyot that have been soaked in liquid but God forbid that we prohibit the permitted, that is, the sesame oil

made with great circumspection without any moisture, and it is obvious that there is no suspicion that water is mixed in afterward, because the custom does not deal with this in any

6SeeBezalelNaor,Haggadah:SpringtimeoftheWorld[Orot:2004]pp.155157,n.325forfurtherdiscussionandsourcesregardingthecontroversythatensuedfollowingR.Kookslenientruling.

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event therefore, there are no grounds to be strict regarding sesame oil produced under complete supervision for Pesach

PS - and it is also simple that it is forbidden to prohibit that which is permitted...

15. Tomer Persico, Interview with R. Yuval Sherlo, Lulaot ha-El [blog posting, 3/10/14]

TP: More than a decade ago, you wrote an article in Akdamot (vol. 12, 5762) in which you pointed to the understanding of the tension that exists between the nature of western, modern society and the tradition of Halakha. You wrote:

the emergence and growth of the subjective, existential experience of the modern and postmodern world, brings the objective nature and the patterns of its codification into an awkward, strange light. The great importance placed in our world on authenticity and independence, to internal/personal freedom of choice - stands in direct contradiction to the edifice of Halakha.

TP: So, explicitly - in direct contradiction to the edifice of Halakha. How do you think we can reconcile the fact that most of us live in the same world in which we assign great value to authenticity, internal freedom and choice, and how that changes Halakha specifically, and the religious world of those who keep Mitzvot in our days in general?

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RYS: There is in the Halakha a solid, consistent foundation. Anyone who learns Torah is able to recognize this ethos of consistency, the dynamics of Halakha, the subservience to previous generations - these things are all very, very present in the world of Halakhic decision making. In our reality, there is a great movement for change, of subjectivity, of narratives and personal viewpoints, renewal. So both of these cultures stand in opposition. In the place where the contradiction stands - and, as mentioned, regarding the issue we are talking about stands a conflict between the surrounding culture and the common nature of Halakha - there stand two possible basic moves: one of them is to specifically/consciously go and accentuate the contradiction, to cry out like Eliyahu ha-Navi, until when will you dance at two weddings!?, to force a choice between one of these two approaches: complete fealty to the framework of Halakha or absolute loyalty to the values of freedom and freedom of choice.

The second movement, to which I am much closer, is a soft movement it reveals that the distinctions/gulf between the two [approaches] are much less stark, softer on one hand, this new movement reveals the failures and the problematics that are inherent with trying to situate everything in the lens of authenticity and independence, freedom and choice. It reveals the ethical-moral issue in a world which creates its frameworks based on narrative alone, the low-key revolution in a world where ideologies have died; and it learns that even in such a world, there is a pressing need for a language that speaks also in objective terms, with strong foundations of fundamental morals and the stability of tradition On the other hand, the movement that stands at the other pole reveals that many things said in the name of Halakha - are in actuality not truly Halakhic in any sense. It reveals though, that the framework of Halakha has much more space for freedom and choice [within it]... 7

7,- " : " " " .https://www.youtube.com/watch?v=sD8su0m04lA : .2014 , 26- The Pursuit of - ' 52-74 ' ,PEOPLE OF THE BOOK , '

the Countertext: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 Harv. L. Rev. 813

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