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A plea for ‘kitniyot’
By DANIEL SPERBER
21/03/2013
Should we not consider at least some of the aspects of this so-called gezera?
 
At the turn of the 13th century, we are suddenly introduced to a new prohibition emerging in certain areas of French Jewry. Rabbi Isaac of Corbeil is the first to mention that some of his contemporaries do not eat kitniyot – legumes – on Passover, though his brother-in-law Mordechai remarks that Rabbi Yehiel of Paris was accustomed to eating white peas (pul halavan) on Passover. Similarly Rabbi Simha of Pleize says he heard that Rabbi Yehuda of Paris himself ate kitniyot, “and surely he did not err.” So, too, Rabbenu Yeruham, in Provence, wrote that “those who do not eat rice and certain types of kitniyot on Passover – this is a mistaken custom, and I do not know why they took upon themselves this stringency.”

Later, Rabbi Ya’acov ben Asher records in his Turim that “some forbid” the eating of kitniyot – adding, though, that he himself sees this as an unnecessary stringency, and not to be practiced.

By the 16th century, however, Rabbi Moshe Isserles writes that “we Ashkenazim do practice this stringency” – i.e., do not eat kitniyot on Passover. He was basing his comments on a number of earlier German authorities, such as the Trumat Hadeshen and the Maharil, who even extended the prohibition to include oil produced from kitniyot (as opposed to just kitniyot themselves).

NOW, THE reasons given for this new prohibition – no trace of which can be found prior to the 13th century – were varied: either that the sacks in which kitniyot were placed for transport and storage were the same as those used for grains forbidden on Passover; or that from kitniyot one could make products that looked similar to hametz.

We may well ask why such suspicions arose only in France and in certain areas thereof, during the 13th century and no earlier. Several suggestions have been put forward. The most convincing, I believe, is that certain changes in agricultural practice took place in that period, with the discovery of the fact that planting legumes revitalizes soil that has been exhausted by successive grain harvests.

The result was that in the medieval three-field system – in which formerly one field out of three was always left fallow for a year so as not to exhaust the soil – in certain areas, every third year, one field in rotation would now be used to plant legumes, thus reinvigorating the soil.

This meant that when reaping a field of legumes, there would always be residual after-growths of grains mixed in with the harvest, and therefore the rabbis of those regions prohibited eating legumes, lest they contain small amounts of possible hametz.

This very brief and sketchy historical survey makes it clear that there was never a carte-blanche gezerat kitniyot, a formal enactment prohibiting kitniyot on Passover. Members of the French and Provençal Ba’alei Hatosafot had differing views on the issue. Some forbade a specific type of legume; others rejected such a prohibition as a mistake to be ignored. But somehow or other, the prohibition gained in force and expanded its area of applicability in Ashkenaz, continuing to do so up to the present day and adding even more stringencies to our foodstuffs. In the Sephardi and Oriental communities, for the most part, the kitniyot prohibition is not accepted.

NOW, IT is a basic halachic principle that one does not graft one gezera (enactment) onto another, so that even if there had been such a gezera – which, as stated above, is highly questionable at best – it could only have been applied to those legumes specifically mentioned, and certainly only to those known at that time. Consequently those legumes discovered along with America in the early 16th century, such as soya beans, could not have been included in this prohibition.

Furthermore, some of those newly discovered legumes cannot be used to make cake-like products, because of their bitter taste, and are used primarily for oil, such as safflower. We may add that because of their size, shape and color, they are easily distinguished from wheat and barley and other grains. Surely they should not be included in the ever-growing list of forbidden kitniyot! We must further note that modern food-production processes are so finely calibrated so as not to admit any “foreign substances.” Indeed, food companies regularly, by law, note even the tiniest of possible “admixtures” because of sensitivities, allergies, etc.

Obviously they do so to avoid costly legal claims that people might level against them.

So rather than pile up humra (stringency) upon humra and even broadening areas of prohibition, should we not reconsider at least some of the aspects of this so-called gezera, which certainly creates numerous difficulties for vegetarians and vegans such as myself and adds considerable expense to the dwindling number of products available with a “proper” hechsher (kosher certification)? And we may add to these considerations that these extensive stringencies can negatively effect the simhat hahag, the joyfulness of the festival, which we should well remember is a requirement of biblical authority.

Let us recall that in the early 18th century, the great Hacham Zvi Hirsch Ashkenazi, the rabbi of Amsterdam (1660-1718), tried to annul this prohibition, and greatly regretted his inability to persuade his colleagues to agree to do so. He wrote that “he who does away with this practice, may my part be with him; would that the great authorities of this generation in this region agreed with me to carry out this great mitzva.” But instead, he laments, they would even forbid the use of salt and sugar on Passover because they look like flour! The Hacham Zvi’s entreaty was echoed by his son, Rabbi Yaakov Emden, with the same lack of success.

The 18th-century cri de coeur of the Hacham Zvi resonates even more in our own times, an age of newly developed products, produced with scrupulous care and with detailed descriptions of their exact components clearly printed on every package.

Perhaps our contemporary rabbinic leadership should hearken to the passionate plea of the Hacham Zvi, and facilitate the mitzva of repealing (at least some of the aspects of) the supposed gezerat kitniyot. ■
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