by Rav David Silverstein
Every year around Rosh Chodesh Nissan, the internet is filled with online petitions, Facebook groups and newsletters practically begging rabbinic authorities to permit the consumption of legumes (Kitniyot) on Pesach for Jews of Ashkenazic decent. One Facebook group called the “Kitniyot Liberation Front,” defines itself as a “movement… dedicated to liberating all Jews who wish to be free of this questionable custom that causes needless divisions between families and friends.” Yet for the majority of Ashkenazi Jews for whom eating legumes on Pesach is simply not an option, the question remains regarding the source and the deeper religious message behind this ancient practice that may even have its roots in the Talmud itself.
Locating the conceptual basis for the practice to refrain from eating Kitniyot on Pesach, the Vilna Gaon (OH 453:1) references the statement of Rava (Pesachim 40b) who, according to one version of the Talmudic account, prohibited workers from cooking Chasisi foods on Pesach since they can easily be confused with chametz itself. Expanding on this idea, the Gra (ibid) notes that there are two rationales behind the custom to avoid eating legumes. The first reason assumes (like the Talmud) that certain foods simply resemble chametz and thus should be avoided to ensure that no leavened bread is mistakenly consumed. The second explanation cited by the Gaon claims that some legumes were stored in close proximity to leaved foods which created a risk that the legumes may in fact contain some residual chametz.
Regardless of which interpretation one accepts, the Ashkenazic custom to refrain from eating Kitniyot has been in force since at least the Medieval period. It was codified in the 16th century by the Ramo (OH 453:1) and has remained the default practice of Ashkenazi Jews ever since. While contemporary authorities debate the exact contours of the practice (ex. Kitniyot oils, soy, quinoa, etc), the working assumption remains that Ashkenazi Jews are legally bound by their ancestral practice as codified by Rav Moshe Isserles.
The resistance to making changes to well established Jewish customs has its source in a philosophical conception of law that sees “minhagim” as expressing the profound religious intuitions of the communities that practice the custom in question. Professor Joseph Kalir (http://traditionarchive.org/news/originals/Volume%207/No.%202/The%20Minhag.pdf) captures this notion when he states that “In the minhag the power of religious intuition operates as an autonomous self –legislation.” Articulating the theology that underlies the conception of minhag, Professor Kalir claims that “while the direct divine spirit which inspired the prophets may have been lost, the native talent of the people has not died and asserts itself in the [custom].” In fact, according to this model, the more ancient the custom in question, the more authoritative its force. “The older a minhag and the closer in time to genuine prophecy, the more significant it is as a sign of this same religious genius.”
On a sociological level, the preservation of Jewish customs substantiates the Jewish tradition as being a textually sourced yet mimetically transmitted set of practices. Dr. Haym Soloveitchik discusses this dialectical approach to Jewish law in his article, “Rupture and Reconstruction.” According to Dr. Soloveitchik (http://www.lookstein.org/links/orthodoxy.htm), “Halakhah is a sweepingly comprehensive regula of daily life….And a way of life is not learned but rather absorbed. Its transmission is mimetic, imbibed from parents and friends, and patterned on conduct regularly observed in home and street, synagogue and school.” Interestingly, Dr. Soloveitchik notes that contemporary observant communities have moved away from the traditional mimetic model to a more concentrated attempt to root all ritual observance in rulings found in classical codes. Claiming the Mishnah Berurah as the precursor to this model, Dr. Soloveitchik claims that “common practice in the Mishnah Berurah [lost] its independent status and need[ed] to be squared with the written word.”
The shift away from mimetisicm towards a more textually centered tradition may actually be impacting the more liberal Jewish community as well. Text centered transmission of religious norms makes traditionally Orthodox Jews suspect of familial practices that cannot be easily harmonized with written codes. The consequence of this shift is the increase in stringencies in religious behavior towards practices that were rarely practiced in previous generations. The loss of confidence in family traditions forces many traditionally Orthodox Jews to look elsewhere for religious security.
For more progressive observant Jews, the move towards a more text centered Judaism has opened a window for challenging religious practices and customs whose legal force may seem somewhat questionable on formal grounds. Once “lived tradition” is minimized as an operative principle, any action not covered by formal halachic prohibitions is perceived to be perforce permissible. The move to permit Kitniyot is the latest manifestation of this recent trend. Instead of trusting the religious instincts of our ancestors whom for hundreds of years refrained from eating legumes on Pesach, some contemporary Jews point to the lack of any formal prohibition (gezeira) associated with Kitniyot to justify its abolition. The problem with this model is that it fails to see the religious significance attributed by the tradition to the spiritual intuitions of observant Jews throughout the generations.
Moreover, attempts to permit the consumption of Kitniyot fail to consider the possibility that there is some profound wisdom in a practice that has withstood the test of time for over 1,000 years. The breakdown of the mimetic model prevents Jews from experiencing Judaism as an organic expression of identity. When looking exclusively to books for religious guidance, Jewish law and customs are often perceived as burdens which we try to avoid whenever possible.
Ideally, instead of seeing the custom to avoid eating Kitniyot as a burden, we should see it as an opportunity to validate our commitment to Torah as a lived tradition. By reaffirming our commitment to our ancestral customs, we make a statement that Jewish law is not some nusance that we perpetually try to overcome. Rather, both the textual as well as the mimetic traditions represent profound values and ideals that we should strive to understand and incorporate into our lives.