The Torah prohibits the consumption of Chametz on Passover. (Exodus 13:3)  Chametz is understood within the Rabbinic tradition to exclusively derive from the grains of: wheat, barley, oats, rye and spelt as only these grains are seen as undergoing a process of Chimutz (leavening) when contacted with water. (Babylonian Talmud Pesachim 35a) Kitniyot is a rabbinic term, classic examples of which are rice and millet that Ashkenazic Jewry gradually starting in the 13^th century and nearly universally by the late 17^th century decided to abstain from on Passover. (Yesodie Yeshurun Vol. 6 Ma’arechet Kitniyot) This custom developed despite these food items being permitted by Torah law, as they are not seen to undergo the process of Chimutz (Leavening) when contacted with water. Kitniyot has become an expansive classification and now includes a wide array of foods including: corn, legumes, various seeds and their derivatives and much ink and energy is spilt analyzing whether this food or that food should be considered Kitniyot.

Classic explanations of why the custom of Kitniyot is observed by Ashkenazic Jewry are that:

1. There is a concern that grains that can become Chametz could unintentionally become mixed in with Kitniyot.
2. There is concern that people will mistakenly come to eat grains that become Chametz due to confusing their identity or their forbidden status with those of Kitniyot which are permitted. This, given that flour/bread can be made out of some Kitniyot items or they are often both boiled in the process of cooking.

This essay will concern itself with the little known history of the criticism, opposition and at times defiance and subterfuge within the Ashkenazic rabbinic community itself to this ensconced custom.

My astute and somewhat brash teenage son Ezekiel once observed that “the difference between Modern Orthodox Judaism and Conservative Judaism is that Modern Orthodoxy complains about problems within Halakhic Judaism and Conservative Judaism actually does something about it!” I do sense that there is some significant truth in his observation, beyond any emerging teenage rebellion and indeed Rabbi Golinkin of the Israeli Conservative movement has authored a responsum permitting Kitniyot. Nevertheless, this article is intended within the Modern Orthodox tradition of “complaining” about aspects of halakhic tradition and not specifically “doing” anything about it. I say this despite my great personal dissatisfaction with this custom as I see it effectively as a potent obstruction to simple, accessible, affordable, healthy and well-rounded eating during the Passover holiday. The intention of this article is to foster intellectual ferment and as well let others who find this custom problematic know that they are far from alone and thus the title of this article “Misery Loves Company.” I will at the end of this article articulate a novel approach as to why I do observe the practice of abstaining from Kitniyot.

Let us begin with the Germanic sage Rabbi Yaakov Ben Asher’s (1269-1343) Halakhic Codex, the Tur, a staple of classic rabbinic learning and halakha.  Rabbi Ben Asher writes, ”There are those who forbid the consumption of rice and all manner of Kitniyot and cooked foods made thereof because [of concern that] wheat kernels become mixed up with them and this is an excessive stringency and we are not accustomed such.” (Orach Chaim Siman 453)

Rabbeinu Yerucham, a prominent French/Spanish early authority (1290-1350), in his classic halakhic work Toldot Adam Ve’Chavah writes, ”Those that have accustomed themselves not to eat rice and varieties of Kitniyot that were cooked on Pesach this is a foolish custom except if they are doing it to be stringent on themselves and I do not know why.” (Netiv Hey Chelek Gimmel 43a as brought in Bet Yosef on Tur Orach Chaim 493:A).

Rabbi Yaakov Emden, the son of the Chacham Tzvi (Rabbi Tzvi Hirsch ben Yaakov Ashkenazi 1656-1718) records in the name of his esteemed father that he would regularly be in pains over the custom of Kitniyot and say, ”If I had the power I would nullify this inferior custom which is a stringency that leads to a leniency…therefore I say one who nullifies this custom to abstain from eating Kitniyot my portion [in the afterlife] shall be with him if only the greatest Torah sages of the generation would agree with me…” (Mor U’Ketizyah Siman 453)

Beginning in the 19^th century there also appeared lone voices of rabbinic defiance against the historical weight of this custom who permitted Kitniyot. (see Teshuvot Chatam Sofer Orach Chaim Siman 122 and Teshuvah Me’Ahavah 1:259 where they are referenced) However, by that time the winds of halakhic and theological change had already started to blow and prominent rabbinic authorities during this time and after this time upheld the custom. (Teshuvot Tzemach Tzedek Orach Chaim Siman 56, Ma’amar Mordechai Siman 32, Teshuvot Maharam Mi’Brisk Siman 48 and Teshuvot Divrie Malkiel 1:28)  In doing so they emphasized either the obligatory nature of ancient protective customs that have been upheld for centuries and our inability to nullify them and/or the foundational quality that communal customs hold in the structure of Halakhic Judaism.

Perhaps the most interesting example of resistance towards this custom is that of Rabbi Saul Berlin, an 18^th century German Talmudist who inclined heavily to the emerging Reform movement. Having to lead a closet life of a traditional rabbi based on his education, family and official position, he authored several works either anonymously or under false identities that critiqued, ridiculed and through subterfuge sought to undermine Traditional Judaism and Halakha. One of his most famous and controversial works is that of a volume of responsas entitled “Besamim Rosh” which he attributed to the great medieval rabbinic authority Rabbeinu Asher who is a foundational pillar or Traditional halakha. In this work (Siman 348) he opines that the custom of Kitniyot is a foreign and in fact heretical implant within the Jewish people placed there by the Karaites. The Karaites were a heretical sect that emerged between the 7^th and 9^th centuries of the Common Era that denied that the Oral Law was of Divine origin but rather a purely rabbinic invention. He claimed that during one of the expulsions of Jews within Europe, a Karaite community was expelled with them and became mingled with them. This heretical community did not eat anything on Passover that flour and bread could be made out of as they rejected the Talmudic notion that only the five grains of: Wheat, Barley, Oats, Rye and Spelt could leaven. He provocatively claims that, ”Those that are stringent in observing this custom will be called to Divine account.” While it is as likely that the Karaites are the origins for the custom of Kitniyot as it is that Rabbeinu Asher is the author of the work Besamim Rosh nevertheless it is a fascinating example of rabbinic subterfuge in response to the perceived need for halakhic change.

Related to the classical explanations above for the reasons that the Kitniyot custom is observed is an interesting contemporary expression of rebellion from within Orthodoxy against the custom of Kitniyot. The iconoclastic Rabbi David Bar Chayim of the Machon Shiloh Institute (www.machonshiloh.org) claims that the classic explanations above that many are familiar with for the observance of the custom were later justifications for the custom. (See his article “Qitniyoth: A Qaraite Custom”) Whereas in his view the original reason for the custom was, that the Kitniyot that the French Rabbis who developed this custom based it on, were similar in their view to the classic 5 grains themselves and should be considered a minor form of Chametz. He notes that what is strange about such a basis for this custom is that this would directly contradict the Talmudic view that only the 5 grains of: Wheat, Barley, Oats, Rye and Spelt are capable in contact with water of leavening and are Chametz capable. This leads Rabbi Bar Chaim to consider that the basis for the latter more classic explanations (concern with wheat kernels getting mixed in or mistaken identity issues) were to lay a new foundation for the custom which had already taken root that seemed to reject or at a minimum not dovetail with explicit rabbinic law! Rabbi Bar Chaim is thus also led to opine that there may indeed be Karaite influence at play. Although, he offers no direct historical proof for this claim beyond the acknowledgment of the Rambam that there were Karaite customs that had made their way into the traditional Judaism of his time own time and by extrapolation could make their way into 12^th and 13^th century French Jewry. Rabbi Bar Chaim considers the custom of Kitniyot an erroneous custom and one that can simply be dropped. (See his response to the questioner “Are we bound to the Ashkenazi custom regarding Qitniyoth”) In what must be a strange twist of halakhic fate and methodology for him (as a staunch rejectionist of Conservative Judaism) he comes to the same Halakhic conclusion of Rabbi Golinkin of the Israeli Conservative Movement.

One note of necessary caution for Orthodox Jews waiting to jump ship is that while Rabbi Bar Chaim is a learned rabbi his writings on this subject have not to my knowledge been presented in the classical format of neither a well fleshed out rabbinic responsum nor a scholarly article in a rabbinic or academic journal where they can undergo the proper peer review where such claims whether they be halakhic or historical can be vetted. While his views are fascinating I at present must consider them speculative as they often on their website format lack even the presentation of source documentation and neither do they thoroughly engage the important halakhic issues involved with negating this custom that have been raised by his esteemed predecessors of which there are many. So I cite his views as part of the historical record and not at present to promote them.

In light of all this it is a fair question to ask why do I observe the custom of Kitniyot? After all, reasonable halakhic arguments can be marshaled against it and as both a modern and a staunch individualist, formal arguments that are somewhat reactionary about our alleged inability to nullify this custom do not really appeal even if I acknowledge that they are the accepted perspective within the contemporary Orthodox tradition.

The reasons I observe the custom of Kitniyot are based primarily on spiritual intuition and could arguably be considered Neo-Hassidic in their approach, albeit a conservative approach within Neo-Hassidism. I sense that our Ashkenazic predecessors who developed this custom out of concern for observing Passover did so out of great piety and personal sacrifice –these people were deeply devoted to Halakha and God and I feel that to break this custom would be to fall out of harmony with the energy of commitment and devotion that they invested in it and which has been spiraling in the Ashkenazic Jewish community for some time. I would prefer to ride the wave of commitment and spiritual energy that they invested in this practice even though when I rationally consider it I find it problematic and apparently I am not alone. I am in question as to whether the intellect alone is a fitting instrument to decide on these matters and whether there is something beyond the intellect that requires consideration.

I also sense that to empower oneself and take on one’s shoulders the responsibility of changing Judaism is not a light matter, not psychologically and not spiritually. I need to exercise serious self-reflection as to my readiness and appropriateness for such a task even if only in my individual life. I need to thoroughly consider what are the potential pitfalls for such an undertaking and what have the experience and experimentation of others led to and how do I feel about the results. There is a saying that haunts me from within the rabbinic tradition that I find potentially applicable to the arena of the Philosophy and Kabbalah of Halakhic change: it teaches, ”Rabbi Shimon Ben Elazar says, ’If youth say to you build and elders say to you destroy listen to the elders and do not listen to the youth. For the building of the youth is destruction and the destruction of the elders is building…’” (Babylonian Talmud Nedarim 40a) Judaism requires innovation and interfacing in order to stay relevant to the society in which it finds itself. Nevertheless, there is a valid concern that not every innovation, leniency and theological development is necessarily ultimately constructive and not every holding on to tradition is necessarily ultimately destructive. Kitniyot may be as small as a grain of rice but perhaps the universe of Torah in all its complexity can be seen within it. May we be blessed to see with depth, honesty and integrity and develop a sustainable Judaism for the Here and Now.