UTJ Viewpoints

In Jewish Action 70:3 (Spring 2010), 70-75, Rabbis Yaakov Luban and Eli Gersten write a wonderful article called “Curious about Kitniyot?” These authors reveal what it means to be Orthodox and modern for the institutional Orthodox Judaism that speaks for “Tradition” in a modern idiom. The authors write both precisely and lucidly, their “scientific” approach finds expression in a clear, concise, and logical exposition of their subject. They are well aware of botanical realities and computer technologies.

The authors know the difference between law and custom. In the Jewish Star issue of February 26, 2010/ 12 Adar 5770, it is reported by some parochial Orthodox rabbis, that Salmon, having worms in its innards, may no longer be considered to be Kosher. “It’s nothing to carp about,” quipped Rabbi Chaim Goldberg, rabbinical coordinator of the Orthodox Union [OU]. He said that the OU follows the p’sak halacha (ruling) of Rabbi Yisroel Belsky, the Rosh Yeshiva of Yeshiva Torah Voda’as, who holds that, based on the Gemorah, “the question arose approximately 2,000 years ago and was answered at that time.” [See Shulchan Aruch (Yoreh De’ah 84:16] From this correct dismissal of parochial Orthodox ritual heroics, we see that the Orthodox Union is led by savvy, learned, intelligent and expert staff. Their treatment regarding Qitniyyot, in light of its ruling regarding Salmon, indicates to this reviewer that the OU’s approach to Orthodoxy is both theological and social, text generated and street savvy.

Qitniyyot are usually construed to be legumes. We are told that the OU “considers…beans, buckwheat, cardamom, corn, fenugreek, lentils, millet, mustard, peas, poppy seeds, rapeseed, rice, sesame seeds, soybeans and sunflower seeds” to be Qitniyyiot. The idiom “consider,” used so regularly in social religious Orthodox discourse, alerts the astute reader/listener to a statement of social policy that is presented as principled piety. The authors report that the custom is first reported in 13^th Century France, with two reasons for the custom being suggested: that Qitniyyot might be inadvertently mixed with the five grains that might leaven [wheat, rye, oats, barley, spelt] or they may be confused with the grains that might leaven. According to classical Jewish jurisprudence, the identical mindset that dared to declare salmon kosher, customs, unlike rabbinic statutes [taqanot] and decrees [gezerot] require reasons and, when the reason for the practice is no longer present, the custom may be discarded. The authors proclaim that “the minhag of kitniyot continues to be binding on Jews of Ashkenazi descent, irrespective of where they reside.” This assertion indeed reflects Orthodox usage; it does not reflect Orthodox jurisprudence or theology.

The Talmud speaks of “custom of the place,”[bPesahim 50a] and not the custom of an ethnic group. God did not author the Torah in Ashkenazi or Sefardi versions. Indeed, Rav Ovadia Yosef suggests that Ashkenazi Jews may enjoy Qitniyyot on Passover because the majority in Israel practices as Sefardim.

The OU treats Qitniyyot as a virtual rabbinic prohibition, which would allow children and the ill to partake of the otherwise taboo foodstuffs. Therefore, unlike leavened grains, which are forbidden for any use at all on Passover, Qitniyyot are allowed on Passover. The OU allows cornstarch to be used, albeit not consumed, on Passover. The more parochial Rabbi Abraham Blumenkrantz treats cornstarch as a total taboo, reflecting the social trajectory that is nudging the OU from an Orthodoxy based upon the legal principle to an Orthodoxy based upon the conventions of the social street.

On one hand, since Qitniyyot are forbidden by custom and not by statute, it can not contaminate a mixture to render it non-kosher. In Iggarot Moshe Orah Hayyim 3:63, Rabbi Moshe Feinstein rules that

• Potato starch is used as a grain substitute. Therefore “looking like grain” is not a sufficient reason to outlaw a foodstuff that is not a grain.

• The restrictive policy regarding Qitniyyot only applies to the foodstuffs that our ancestors used.

• We do not expand upon or detract from the family traditions of our ancestors.

• Since potatoes were introduced into Europe in the 1500’s, it was not subject to the Qitniyyot restriction.
• Since peanuts are similarly a late comer to Europe, even though they are legumes, they are not really Qitniyyot.

If we follow Rabbi Feinstein, and we are dealing with Torah religion instead of folklore, the following observations may be made:

• Customs are virtual law and the logic of law should apply to customs.

• What our ancestors did assumes quasi canonical status.

• Jewish law is frozen not by the canonical documents, but by the religion of the canon as lived by our pious ancestors.

• Qitniyyot is a legal and not a botanical concept.
• Following this logic, corn, or maize, a new world foodstuff, cannot be regarded as Qitniyyot.

Quinoa is a new world grain, like corn. Since it is a staple grain, it may be baked into bread, and emerged in the 1970’s. Hence, there is no tradition regarding the foodstuff. While some authorities outlaw quinoa because it functions like grain, others allow it because there is no “tradition.” The OU “does not recommend using quinoa on Pesach” because of the rabbinic debate. There are several problems with this stance:

• If we are lenient with rabbinic doubts, why would we be strict with customs, especially if they are of recent vintage?

• If we may use potato starch because there was no potato starch Europe, and no “tradition” to outlaw potatoes, why “has corn been accepted for generations as” Qitniyyot?”
• Unlike the five grains that may become leavened, if baked within 18 minutes, becomes kosher for Passover matsa, Qitniyyot are forbidden even if baked into a matsa-like cracker, treating Qitniyyot as a taboo greater than leavened grain.

The original decree regarding Qitniyyot applied to the food substance but not to its liquid extract. Maharsham 1:183 argues quite convincingly that that the liquid Qitniyyot cannot be easily confused with grain. The OU reports that “this leniency is not widely accepted.” This telling comment reveals to the reader the political anthropology of contemporary Ashkenazi Judaism,

• which affirms a religion based on law and principle,

• which ignores logic and precedent, accepting potatoes and not corn or corn syrup, even though Jewish law explicitly accepts leniency when in doubt of a rabbinic

• which views the “accepted” practice as normative, in spite of the law, and

• allows “consideration” to trump statute and precedent.

Just as a chemical change renders the new product kosher, even if the source product was not, the OU allows a changed Qitniyyot product to be acceptable, because in theory a custom carries the valence of a rabbinic law.

The authors conclude with a folk religion apologia for the observance of customs, claiming that

• “a custom of a family or community is binding on future generations as well.” bPesahim 50b. The community custom is binding only upon the community that promulgated the customary practice. Family practices are folkways and are subject to review.
• Citing Proverbs 1:8, the Jew is to observe “and not forsake the Torah [‘teaching’] of the mother.” While taken to be kitchen religion and popular culture, mothers who did not learn Torah cannot transmit Torah. We would do well to render “Torah” as the “word of the Lord.” [Isaiah 2:3] Therefore, when our mothers say the word of the Lord, or Torah, that Torah must not be forsaken. Not every bubbe maiseh is Torah, the word of the Lord.
• It is claimed that customs capture “the spirit of Torah.” This assertion is patently and demonstrably false; customs do capture the ethos of the human construct of social culture but are not themselves sacred. An act makes for sanctity if its fulfillment is a commandment. According to rabbinic Judaism, we do not say a commandment blessing for the observance of a custom. The Sefardi Jews to this day observe this discipline, which Rashi in Mahzor Vitry also maintained.
• By not conceding that salmon is a non-kosher fish by dint of parasitic worms within its body, and by permitting potato starch cake, even though the cake resembles grain, the OU applied Jewish law correctly and properly. But were the Orthodox street to change its mind and outlaw salmon, would the Orthodox Union argue that new customs, like treating corn or the extract of corn as Qitniyyot, are also sacred, expressive of Torah values, and the so-called “spirit” of Judaism? By not subjecting the “accepted” to scrutiny, and by invoking “consideration” to override the logic of regulation, the OU reveals that it believes that God’s will is revealed de jure in the canonical text and de facto in the actual practice, politics, ritual gestures of identity, that bond, bind and befuddle the Orthodox affiliate. With enough social pressure and market demand, Jewish law may indeed change, Tradition in fact does evolve, Jewish values are reconstructed, and God’s will, the “spirit” of Torah, is reformulated.

Some Jews believe we are sanctified by history. Our canon says that we are sanctified by the commandments. When we call or treat customs commandments, we reconstruct the word of the Lord, we reform the contours of authentic tradition, and we conserve the past indiscriminately. Customs, of course have value. But they have to be reasonable, rational, situationally appropriate, and existentially fitting to our lives. Our ancestors made their customs for the world that they inhabited. We would do well to do the same.

Last 10 posts by Rabbi Alan Yuter

• The December 2009 Mosque Incident - August 1st, 2010
• What is the Relationship between Torah narrative and Torah law? - Parashat Miqqets - July 30th, 2010
• The Hanukka Confict - July 27th, 2010
• Why Rabbis are Not Trusted - July 25th, 2010
• The Piety Polemic and its Implications for Orthodox Judaism: Identifying the Real Religion of Jewish Extremism - July 22nd, 2010
• The Barzilai Hospital Crisis - July 18th, 2010
• Why Middle East Peace is Not at this Time Attainable - July 11th, 2010
• Avot 1:16 Sages’ advice should be sagacious - July 6th, 2010
• The Quest for the Original Torah - July 4th, 2010
• Avot 1:17 The Attentive Disposition - June 30th, 2010

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