Letters

Greetings from Jerusalem
OU President Stephen J. Savitsky’s praise of Rabbi Hershel Schachter in the spring 2010 issue (“Building a Bridge to Achdus, One Article at a Time”) caught my eye.

In the spring of 1991, members of my Shabbat afternoon study group in Los Angeles went to hear Rabbi Schachter deliver a discourse on the mitzvah of making aliyah.

None of us had ever heard about this mitzvah before. By July, my wife, Susan, and I were on a two-week pilot trip to Israel. By October 1, we started disposing of our household items, and packing what we would need to establish our new lives in Eretz Yisrael. By October 31, we–Susan and I and our seven-year-old twin daughters, Elisheva and Sarah–had arrived in Israel.

The past nineteen years flew by so fast. We often wonder, how did Beverly Hills ever prepare us for the opportunity to watch our daughters marry former IDF soldiers, give birth to Sabras, and settle in Kibbutz Shluchot and in the settlement of Kida?

Despite the difficult experiences we underwent during the early years of our aliyah, we were quickly compensated with many, many blessings. Did we make the right decision by taking Jewish Action so fast?

Rav Hershel Schachter—thank you!

George Roth
Jerusalem, Israel

Concerned About Kitniyot
In “Curious About Kitniyot,”(spring 2010), Rabbi Yaakov Luban and Rabbi Eli Gersten support the authority of minhag by appealing to “the Torah of your mother” (Mishlei 1:8). However, many aspects of the minhag of kitniyot, as presented by the authors, do not remind me of my mother, or my grandparents, or they way Judaism has been observed for hundreds of years.

For example, the authors report that although Maharsham permitted oils of kitniyot, this leniency is “not widely accepted.” But I remember when stores sold peanut oil. How did the minhag change?

The authors quote Rabbi Moshe Feinstein’s pesak permitting peanuts on Pesach, and then in deference to those who regard peanuts as kitniyot, state, “one is unlikely to find certified kosher-for-Pesach peanut products.” Similarly, the authors cite reasons to forbid quinoa, although clearly Rav Moshe would permit it. Since the rabbis remain divided, the OU does not recommend quinoa.

Alas, the older generation is gone, and I have no one to ask about foods my family permitted on Pesach. I do not remember these foods, in part, because when I went to yeshivah, I learned from my rabbis that our minhag does not permit kitniyot at all, prepared in any way. It took me years to notice how bizarre it was to learn from my rabbis not to trust the minhag of my mother.

The OU seems to take the stringent position on nearly every issue. Despite the principle that a doubtful case of Torah law should be decided strictly and a doubtful case of rabbinic law leniently, here we have doubtful cases of custom, nearly all of which are decided stringently. Either the rabbis rule stringently, and instruct us not to eat a certain food, or they do not rule at all, so that no such item can get a hechsher, effectively endorsing the strict opinion without issuing a ruling. Over time, our fidelity to purported minhag has introduced customs which our grandparents would not have recognized.

Eliezer Finkelman
Southfield, Michigan

RABBIS YAAKOV LUBAN AND ELI GERSTEN RESPOND
Eliezer Finkelman raises some excellent points, and, on one level, we agree with his arguments. Minhagim should be observed the same way they were in previous generations.
Nonetheless, while individuals should remain loyal to family minhagim, the OU, as a communal organization, attempts to be inclusive of the wide range of halachic positions whenever possible. When there are conflicting minhagim, the OU seeks to avoid favoring one tradition over another and to maintain a position of neutrality.

You might ask, as Mr. Finkelman does, why doesn’t the OU just adopt the lenient position? By adopting a stringent position (such as not supervising corn oil for Pesach), isn’t the OU being just as exclusionary as it would be by adopting a lenient stance? Not really.

Not granting certification (to corn oil, for example) is not tantamount to taking a stand. The OU is not saying, “Don’t eat this product if there is no OU symbol on the label.” However, certifying a product whose status is subject to debate would be interpreted as a solid endorsement of that product. It is simply not feasible to write the following note on a label: “OU certified for those individuals whose family customs conform to the lenient position on which this supervision is based.”

Respecting the validity of conflicting viewpoints, the OU follows the dictum of “shev ve’al ta’aseh odif,” which is to say that, at times, abstention is the best course of action.
We would, however, like to make one clarification. In our article, we wrote, “Since OU posekim are divided on this issue, the OU does not recommend using quinoa on Pesach.” By stating “does not recommend,” we meant that the OU takes a neutral position and does not offer direction to the public with regard to the use of quinoa on Pesach. We did not mean to imply that we oppose using quinoa, and apologize for being imprecise.

Still, Mr. Finkelman is correct that, de facto, the absence of an OU symbol on certain items, such as peanut products for Pesach, creates the impression that eating peanuts on Pesach is not acceptable. Yet it is precisely for this reason that our article is important. In the article, we made it clear that there are different opinions about peanuts, quinoa, and oils of legumes, and that those who have family minhagim should adhere to those traditions.

Rabbi Yaakov Luban is executive rabbinic coordinator, OU Kosher.
Rabbi Eli Gersten is the recorder of OU pesak and policy.

WHAT DID RAV MOSHE REALLY SAY?
In the summer 2010 issue of Jewish Action, Rabbi Michael Broyde wrote a letter in response to a statement by Rabbi Aharon Feldman in his new book, The Eye of the Storm. Rabbi Feldman wrote: “Halacha is determined by the cumulative decisions of the generations of commentaries and decisors. Thus an opinion of the Rishonim, when codified by the major later authorities, is inviolable.”

Rabbi Broyde disagrees with this view and attempts to prove that Torah scholars are free, under certain circumstances, to disagree with the great authorities of previous times.
As his source, he cites Rabbi Moshe Feinstein who defends his right to rule leniently on an issue which earlier Acharonim had dealt with more stringently. However, the citation has an omission of several lines (indicated by an ellipsis) in which Rav Moshe adds a caveat: “We are certainly permitted to argue . . . assuming it is not counter the opinions of the renowned decisors, the authors of the Shulchan Aruch, which were accepted in all our lands . . . ”

According to this caveat, Rabbi Feldman’s words, that “an opinion of the Rishonim, when codified by the major later authorities is inviolable,” echo those of Rav Moshe, and Rabbi Broyde’s source- proof is unfounded. (In the most recent edition of Jewish Action, this omission is detailed and attributed to an inadvertent editing error. Be that as it may, the citation validates Rabbi Feldman’s words rather than disproves them.)

Furthermore, the citation of the pertinent passage by Rav Moshe contains a serious error. Rabbi Broyde’s translation reads: “. . . But in cases of great need, and certainly in serious matters regarding the ending of marriages as is this case, we are certainly obligated to rule [leniently] even if we merely deem it plausible to be lenient, and it is forbidden for us to be among the humble . . . ”

The true translation of Rav Moshe’s words is: “. . . but in cases of great need . . . we are certainly obligated to rule [leniently], only if it appears to us to be permitted [emphasis added], and it is forbidden for us to be among the humble . . . ” Nowhere is there an implication that plausibility, as opposed to honest conviction, is sufficient basis to overrule the rulings of previous generations concerning Torah prohibitions.

Furthermore, Rabbi Broyde repeatedly presents Rav Moshe’s opinion as that in times of great need contemporary Torah scholars can argue with Rishonim. In his words: “[When] all other authorities, including Rishonim, disagree.” The implication is that this applies to any single Rishon or to any number of them. This, however is an inaccurate depiction of Rav Moshe’s words, which are: “And even if our understanding will differ with the opinion of some great scholars from among our masters, the Acharonim, what of it? Even we are certainly permitted to disagree with the Acharonim, and even at times with some Rishonim, when there are proper proofs and, more importantly, proper logic. . .” Rav Moshe writes clearly that one is permitted, with the proper proofs and logic, to argue only with “some Rishonim.”

Finally, Rabbi Broyde’s understanding of Rav Moshe that it is “the role of every Torah scholar to step forward” and not “show deference to greater posekim” is plainly limited to those who have reached an appropriately high level of mastery of Torah. It would be absurd to apply Rav Moshe’s approach to halachic decision-making to “every Torah scholar.”

One should bear in mind that the same line in the Talmud (Sotah 22A) criticizing scholars who have reached the level of higi’a l’hora’ah (the ability to rule) for not willing to rule also criticizes those who have not reached that level and nevertheless rule.

Yosef Wiener
Baltimore, Maryland

RABBI MICHAEL BROYDE RESPONDS
Rabbi Yosef Weiner misunderstands my letter. I have no interest in disagreeing with Rabbi Aharon Feldman or Rabbi Aharon Lichtenstein regarding when one can argue with Rishonim. Both of them are far greater scholars of Torah than I.

I merely wrote to point out that Rav Moshe disagreed with both of their views.

One who looks at the quote from Iggerot Moshe sees clearly that Rav Moshe is of the opinion that the unanimous view of the Rishonim is binding only when it is codified without dispute in the Shulchan Aruch and its commentators. That is a far cry from what Rabbi Feldman wrote.

Rabbi Weiner also questions my translation of a section of Rav Moshe’s teshuvah, which was in Hebrew. “Aval bemakom tzorech gadol . . . vadai mechuvin gam anachnu lehorot im rak nire’eh lanu lehatir, veassur lanu lehiyot meiha’anavim.”

Rabbi Weiner insists the translation is, “But in cases of great need . . . we are certainly obligated to rule [leniently], only if it appears to us to be permitted, and it is forbidden for us to be among the humble . . .”

This translation is wrong. “Rak im” is not the same as “im rak.” The former means “only if,” the latter, “if it is only.” Rav Moshe is not saying that we are obligated to rule leniently only if we think it is permitted. Would anyone entertain the idea that Rav Moshe is correcting those who would rule leniently despite the fact that they thought it not permitted? Moreover, the phrase “nire’eh lanu lehatir,” is a reference to the fact that one is not 100 percent certain–nire’eh being a classical rabbinic word to denote “less than 100 percent certain.” My translation:

“But in cases of great need . . . we are certainly obligated to rule [leniently], even if we merely deem it plausible to be lenient, and it is forbidden for us to be among the humble . . .” is correct. Rav Moshe means that in cases of urgent need, a posek can adopt an understanding of the halachah that he genuinely thinks is reasonable, even if he himself recognizes that other understandings of the Talmudic sources can be just as correct; he can prove his view as a plausible read of the sources, but not the exclusively correct understanding. This is a common situation in Jewish law.

Rav Moshe wrote these words in 1934, when he was a young man and certainly not considered a Torah giant by the gedolim of that era. Rav Moshe was addressing the question of whether a woman may immerse in a mikvah using earplugs; she would not immerse without them, and that would lead to this couple getting divorced.
Rav Moshe wrote a total of six teshuvot (Iggerot Moshe, YD 98-103) on this issue. These teshuvot represent the longest collection of teshuvot on a single topic in all of Iggerot Moshe. Rav Moshe presents a novel analysis of the question, and permitted the woman to immerse in this manner so as to avoid divorce.

One respondent asked Rav Moshe whether it is proper to rely on Rav Moshe’s understanding of halachah, since it reaches a novel conclusion and all other authorities (including some Rishonim) disagree. That is the question he is answering in the excerpt above. After stating his view that one may argue with Rishonim when one has proof, Rav Moshe concludes as follows (after the word “humble” quoted above):

and cause Jewish women to remain unable to marry, or cause fellow Jews to stumble in prohibited activities, or even simply cause a Jew’s financial loss—see Gittin 56, which states, “Because of the humility of Rabbi Zecharya ben Avkulas, the Beit Hamikdash was destroyed”; why does it say “his humility” and what does that incident have to do with humility? See the comments of Maharatz Chayot there for a correct interpretation—This, indeed, is what results [from these types of failures to act], and we are compelled to rule [leniently] even for practical application when we deem it appropriate with evidence and clear understanding, and particularly in a serious matter of leaving a woman without a husband or avoiding a severe temptation.

Rav Moshe’s citation of the Maharatz Chayot is central to understanding his view. The Talmud tells us that Rabbi Zecharya ben Avkulas could have prevented the destruction of the Second Beit Hamikdash, since he had a halachic basis for permitting one to bring an invalid sacrifice under certain circumstances. This could have avoided insulting the Roman emperor who sent an invalid animal as a sacrifice. The Maharatz Chayot (Gittin 56a) states:

We see from this that the rabbis thought that the manner of Rabbi Zecharya was not proper, as he felt that such sacrifices could be brought [and he should have so stated]. . . However, because of his great modesty, he did not have the strength to act according to his views halachah lema’aseh [and save the Jewish people]; rather, he was afraid that other rabbis would accuse him of permitting activity prohibited by halachah, and he did not think of himself as a great enough sage to permit people to act according to his understanding of the halachah. He thought that these types of decisions were left only to the wisest of the generation (gedolei hador) [when in fact, he should have acted].

Rav Moshe’s view thus is that in a time of urgent need—such as to avoid a divorce—one should not defer to the gedolei hador of the generation, but each Torah scholar should put forward his view of the correct understanding of the halachah in order to avoid a tragedy.

Our community should be blessed to have more scholars like Rav Moshe; his vision, breadth, knowledge and wisdom are missed in this time of terrible need.

Rabbi Michael J. Broyde is professor of law at Emory University School of Law in Atlanta, Georgia, and a dayan of the Beth Din of America.