The public has been begging for years, and there were those who could not hold back and decided for themselves to revoke the custom, and now for Passover 2007 the results can already be seen.
Eight hundred years after the custom began the consensus among the Ashkenazi rabbis about the relevance of the prohibition of eating kitniyot has, for the first time, been broken: The rabbis of the “Religious Court of Machon Shilo” have published a ruling that allows Ashkenazim living in Israel to cease the custom.
In a ruling that was published a few days ago, the rabbis of the institute, David Bar-Hayim, Yehoshua Buch, and Chaim Wasserman, claim that citizens of Israel are neither Ashkenazim or Sephardim (Jews of Spanish or North African descent), rather they are “Jews of Eretz Yisrael”, and therefore they should abide by the custom of the land and not by former customs.
In the beginning of the ruling the rabbis quote three medieval commentators who wrote against the custom, such as the “Tur” who described it as a “superfluous stringency” and the “Beit Yosef” who added: “This custom is a foolish one”. “This was never the prevailing practice in Israel”, the rabbis wrote, indeed “a reality has never been created where all the people in Israel acted that way”. According to their claim, if this had been the case - then Sephardim and Yemenite Jews would have also adopted the prohibition.
The rabbis also ruled that every person should act according to the custom of the place, especially when he lives there, and they added: whoever does not want to - should not eat kitniyot, but “they should not force their custom on others”. The religious court noted that there are many Ashkenazi rabbis who did not adhere to this custom in their countries, and therefore this should definitely be the case in Israel.
The rabbis continue by noting the prohibition of “dividing into little camps” which determines, according to Maimonides, that you should not have different customs in one place. “Those who obligate Jews in Israel to perpetuate a reality of a scattered nation - will perpetually reinforce the concept of the nation of Israel in the Diaspora made up of different groups and ethnicities”, declared the rabbis of the institute.
The head of the religious court, Rabbi David Bar-Hayim (an Ashkenazi), explains that the Rama, who is the source of this custom, wrote that it only applies to Ashkenazi countries.
“When a person moves to a different place his old customs become invalid, and he accepts the customs of his new place” Rabbi Bar-Hayim told ynet. “And such it should be with all the Jews who have come to Israel in the previous generations”. The rabbi emphasizes that the prohibition of kitniyot is dependant upon the place and not the person.
So who are you, Rabbi Bar-Hayim?
Rabbi David Bar-Hayim explains that he is himself a strict orthodox Jew, a graduate of “Merkaz Harav” and “Hakotel” yeshivas, but considers himself someone who does not belong to a specific stream. “I am not a follower of philosophies, rather I follow Torah, true study and deciding conclusions,” he says.
The head of the religious court is of the opinion that this feeling of a necessity to belong is one of the biggest problems facing orthodoxy today. “Instead of learning Torah in a fitting and open way and seeing what is written on every topic - most rabbis prefer shooting the arrow and then marking the target”.
According to him, among the rabbis of this religious court “there is no philosophical uniformity, but every one has the openness to clarify the truth without being dragged after slogans”.
Rabbi Bar-Hayim says that since they published the ruling other rabbis have added their signatures. Some other, well know rabbis, have told him that they agree with him but are “afraid to speak”.
According to him the leading Ashkenazi rabbis, such as Rabbi Yosef Shalom Elyashiv and Rabbi Avraham Shapiro, refuse to allow kitniyot for philosophical reasons and not because of their halakhic (legal) outlook.
“They maintain that Ashkenazi Jews have to remain this way on every matter forever, as if we were still in exile” says the rabbi. He claims that when it comes to Jewish law the rabbis can and should make rulings and the public has to listen, but rabbis do not have the power or legitimacy to determine a person’s identity. “If someone wants to see himself as a Jew in Israel and not as an Ashkenazi Jew - he is permitted to change directions”.
And even though the custom has not cracked in over 800 years, Rabbi Bar-Hayim is not waiting for the approval of the major rabbis. “The custom became invalid with the immigrations to Israel, they simply forgot to tell the Ashkenazim” he says, “ We are just letting them know”.
And who has not accepted this ruling? Rabbi Bar-Hayim’s wife, obviously. “I have been eating kitniyot for the past few years” says the head of the religious court, “My wife, in the meantime is not convinced”.
The Religious Court of Machon Shilo feels that there is a need to redefine the identity of the citizens of this country as “Jews of Israel”, so that we will be a nation and not a collection of exiles. According to them, this is not just the case in the matter of kitniyot, but also with regard to the paschal sacrifice and the rebuilding of the temple.
And what do the rabbis say?
Rabbi Yuval Sherlo, head of the Hesder Yeshiva in Petach Tikvah and one of the founders of “Tzohar” agrees that “ instead of differentiating between Israel and other nations, the laws of Kashrut differentiate between Jews and Jews”, yet firmly disagrees with the conclusion of the rabbis of Machon Shilo. According to him there should not be a subversion of the prohibition of kitniyot, rather there should be a prevention of the friction between different groups, a process that should be done very delicately.
Rabbi Sherlo directs his words to the “Ashkenazi anxiety” in regard to all the customs of this type, that according to him have made the custom of kitniyot more severe, and have almost made it into pure hametz (leavened bread).
“Couples from different groups can not go to their parent’s homes for Passover because of the different customs”, says the rabbi, and he called for a return to the source, which prohibits eating the kitniyot themselves. “The stringencies that have been added in previous years are a stringency that may lead to a laxity, for because of them many young people today then ignore the whole custom”.
On the call to establish a new identity of a “Jew from Israel” and to act according to local custom, Rabbi Sherlo says: “For intellectual integrity it is always worth beginning these processes with an acceptance upon yourself. After this test you can think if there is room to annul these customs”. For example, he states that in Israel they had a custom to pray every day at sunrise and to begin reciting the “Selichot” prayers 40 days before the high holidays.
The Sephardi rabbi, Rabbi Shmuel Eliyahu, rabbi of Tsfat, is not really in the game. As a view from the other side, he says that the new ruling does not have any significance since we are talking about a large group of Ashkenazim who have fervently kept this custom, and a very small number of unknown rabbis who have permitted kitniyot.
With this, he says in the name of his father, Rabbi Mordechai Eliyahu, one of the leaders of Religious Zionism: “The first Ashkenazim in Jerusalem before the establishment of the state allowed fresh legumes and only prohibited dry legumes, but when the students of the Vilna Gaon and Baal Shem Tov came to Israel, they ‘brought with them’ from Europe the prohibition against fresh legumes”.
According to the ruling of his father, since the first Ashkenazim in Israel were lenient in this matter- Ashkenazim today should act in a similar manner.