This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
* * * * *
Question: I live in Israel, where most people eat “kitniot” on Pesach (Passover) and it can be hard to find non-kitniyot products. Can I “break” my family’s tradition of not eating kitniot because it’s so much harder to keep in Israel?
Your question is actually most complex, extending beyond the narrow issue of kitniot and entering into the halachic realm of communal structure, a realm that actually demands much more investigation in our present world.
To start off though, in regard to the specific issue of kitniot itself, I should first direct you to Rabbi Alfred Cohen, "Kitniyot in Halachic Literature, Past and Present," Journal of Halacha and Contemporary Society VI which is a very fine article outlining the whole issue. Kitniot, of course, are foodstuffs with which -- while not true chametz -- a custom developed in Ashkenazic (European) Jewish communities to forbid their consumption on Pesach. In this regard, as Rabbi Cohen points out, there is much debate on what foodstuff is included in this custom and this disagreement as to the exact definition of kitniot could be a significant issue in response to your question. The answer may be different depending upon the specific item of kitniot that is the subject of your question. In a similar regard, the answer may also depend upon your specific family custom rather than the general or more prevalent custom. Your family’s history in moving to Israel may also be a factor for the real issue is not kitniot but rather custom.
There is a principle in Jewish Law that custom has the authority of law. Minhag avoteinu Torah, the customs of our forefathers are Torah. See, for example, Rema, Shulchan Aruch, Yoreh De’ah 376:4. What this means, however, is often misunderstood. What it effectively is stating is that once a Jewish community begins a practice, that practice after it has been established over time, becomes binding on the members of the community. There are caveats upon this statement, though. This only occurs, for example, if the practice developed under the watch of someone versed in Jewish Law, thus allowing for the conclusion that it was developed with the consent of this individual or, at least, without his objection. As such, we thereby assume that there must have been a legitimate reason for this custom to have developed and, even as we may now not know the actual original reason, the custom has the force of law, at least to some extent. This parameter is important. While a Biblical law can be overridden, for example, only when life itself is threatened, it may be that a custom could be overridden because of a lesser issue. This could be another matter that needs to be addressed in regard to this question. What exactly is the problem? Inconvenience itself may not be enough of a reason to override a custom but perhaps the exact nature of the problem may be a good reason.
The essential issue, however, is this concept of custom. Most people think that the rules are tied to actual family; in fact, this is not true. The rule is tied to community. One is bound by the practices of his/her community. The question then arises: what happens if someone moves? While there are many factors involved in presenting a correct response to a specific question of this nature, the simple answer is that (a) if someone moves to a place that has no established custom, that person must continue the customs of the place from which he/she came; and (b) if someone is moving to an established place with established customs, the person must generally adopt the customs of the new place. So if, in 1700, an Ashkenazi moved from a community, let us say Krakow, that kept the prohibition of kitniyot to a Sephardic place, let us say Fez, that did not keep this prohibition, it may be that this person would then be able to eat kitniyot on Pesach but the person would then have to adopt all the Sephardic customs. This may be another aspect of this issue in this case. The question may not be whether you can eat kitniyot or not but whether you can now choose to join a Sephardi community and adopt all their customs?
This leads us to the issue of Israel and the multitude of variant communities within this land. At least, that is the situation today but, historically, Israel was originally a Sephardic community. This has led some people to presently argue that since, when the Ashkenazim, first came to Israel, as they were really now entering a Shephardi community, they should have adopted Shephardi customs, as such, these Ashkenazim should have dropped this prohibition of kitniyot. The problem with this argument is that these Ashkenazim did not come as individuals per se but as a group and formed their own community with Ashkenazic rules, right at the beginning, which was their right. In addition, if one would adopt this argument, it would mean that one would have to effectively become a Sephardi beyond the issue of kitniyot. The question, though, is that, given that there is much choice that one would have as to possible communities, what choice does one have in choosing his/her community? It would seem that regardless of what one’s actual family background would be, if a person is now living in a community, under the leadership of a recognized Rabbinic individual who would provide correct halachic guidance, i.e. an appropriate judge of the Torah law, the person would be bound by the customs of this community – and if this community allowed kitniyot or, at least, took more lenient positions of this law, it would not only be okay but it would actually be appropriate to follow the customs of this community in which one lives.
This leads to a final issue. Can a new community structure with new customs be formed given the past family history of its members? We know what happens if an Ashkenazi moved to Fez and what happens if a Sephardi moved to Krakow. We also know what happens if a group of Ashkenazim or Sephardim move to a place without a community. In speaking to other Rabbis, we found it very unclear of what would happen if 5 Jews from Fez and 5 Jews from Krakow came to a new place – how would they establish minhagim? Of course, much would depend on the Rabbi of this new community as his particular conclusions would have more weight. Anyways, you are beginning to see the true complexity of this question.
So, in conclusion, what I would say is what is necessary is for you, as an individual, to recognize that you do not live in a vacuum but rather within the context of a local Jewish community with a Rabbi who provides halachic direction to the community and its members. The answer lies in determining what is your community and following its practices. It may be that you may wish to determine which community you favour based upon its kitniyot rules. That may be your prerogative – but then you are still bound to the general rules of the community as well.