High price for a ‘foolish custom’

Editor’s note: Rabbi Engelmayer has chosen an at-least-temporary retirement from his column, but there have been many requests for what has come to be called his “annual Pesach rant.” We bow to popular demand.

There is a principle in Judaism that carries very heavy weight: minhag avot – carrying on the traditions of our forefathers. Our families have traditions that go back many centuries and they deserve to be honored, so long as they do not violate halachah, or Jewish law.

Another tradition is a belief that longstanding tradition, or minhag, carries with it the force of law. Violating such a minhag is akin to violating halachah.

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There is much merit to these minhagim, and I do not dismiss them lightly. Elu v’elu divrei elohim chaim – this one and this one are both the words of the living God. There is another minhag, however, that also ought not to be dismissed lightly: minhag ha-medinah. Loosely translated, it means that we should adapt to the traditions of the place where we live.

As I see it, at least, observing the ban on kitniyot violates the minhag ha-medinah of the United States.

In Israel, several Orthodox rabbis have used this as a reason to abandon the ban on kitniyot – legumes and their derivatives (such as corn oil or peanut oil, for example). They note that the Land of Israel was inhabited by S’fardim and Mizrachi long before the Ashkenazim began their return there. Therefore, using kitniyot on Pesach honors the traditions of the land.

The same holds true for us in the United States. The waves of Ashkenazi immigration began in the 19th century. For centuries until then, the Jews of North America were S’fardim. They knew nothing about a kitniyot ban. They ate rice and the like during Pesach. It was a time-honored custom that goes back to the Talmud itself.

Thus, “Rabbi Yose said…: ‘It is a religious requirement to bring two dishes before him [at the seder].’ …What are the two dishes? Said Rav Huna, ‘beet and rice….’ Said Rav Ashi, ‘From Rav Huna you may infer that none pay heed to the following [ruling] from Rabbi Yochanan ben Nuri,'” who forbids rice on Pesach because he believed it to be a variant of the “corn” that is prohibited by the Torah. That “corn,” of course, bears no relationship to what we call corn, which was unknown until Columbus returned from the New World. (See the Babylonian Talmud tractate Pesachim 114b.)

The ban on kitniyot and its derivatives is not Torah-based even by the wildest stretch of anyone’s imagination. We do not even know when it began, or who instituted it. We find reference to it for the first time in the writings of 13th century scholars in Ashkenaz.

S’fardic rabbinic authorities and even some early Ashkenazic ones scoffed at the ban, calling it a “minhag sh’tut,” or nonsensical practice, and thus forbidden in any case. One Ashkenazic detractor was Rabbi Samuel ben Solomon of Falaise. He was one of the tosafists, or commentators on the Talmud, and his commentaries are most prominent in the Babylonian tractate dealing with the laws of Pesach. Presumably, if the ban on kitniyot stretched back to the rabbis of the talmudic age in the Land of Israel (a claim for which no serious evidence exists), he would not have so casually dismissed it.

From the time that Ashkenazic Jews began to emerge on the scene, its denizens have held to the notion that they know best how everything should be done – and that opinion colors everything they do.

This is evident in many ways, including in a reformulation of Isaiah 2:3 found in the Sefer ha-Yashar, written 800 years ago by Rashi’s grandson, Rabbeinu Tam. The original verse reads, “for out of Zion shall come the Torah, and the Word of the Lord from Jerusalem.” In Ashkenaz, this became, “For out of Bari shall come the Torah and the word of the Lord from Otranto,” referring to towns in southern Italy regarded as centers of Ashkenazic learning.

A hundred years after Rabbeinu Tam, Asher ben Yechiel, who was born in western Germany, wrote this after settling in Toledo, Spain: “I would not eat [meat] according to [S’fardi] usage, adhering as I do to our own custom and to the tradition of our blessed forefathers, the sages of Ashkenaz, who received the Torah as an inheritance from their ancestors from the days of the destruction of the Temple. Likewise the tradition of our [Ashkenazic] forebears and teachers in France is superior to that of the sons of this land.”

Talmudic discussions also make clear that new rules should not be imposed on the people if they involve excessive expenditures, for “the Torah has pity on the money of Israel.'” (See BT Yoma 39a and a similar discussion at BT Yoma 44b.)

In one instance, Rabbi Akiva himself challenged a stringent and expensive ruling by the same Rabbi Yochanan ben Nuri. Demanded Rabbi Akiva, “How long will you waste the money of Israel?”

His point was that Rabbi Yochanan ben Nuri would impose an unnecessary financial burden on the community for the sake of a stringency.

There are other such discussions in the Talmud, all leading to the conclusion that the Torah never intended for people to go broke performing its mitzvot. Anyone who has priced the current spate of “faux chametz” products understands just how expensive Pesach has become. Is it really necessary to buy artificial and exorbitantly priced mustard when real mustard is acceptable?

The OU has done a tremendous service this year by certifying products “Kosher for Passover for Kitniyot users.” It would be an even greater service if it would simply label these products “Kosher for Passover” period.

The “Minhag America,” in my humble opinion, should take precedence.