2 I JEWISH ACTION Winter 5771/2010

Greetings from Jerusalem� OU President Stephen J. Savitsky’spraise of Rabbi Hershel Schachter inthe spring 2010 issue (“Building aBridge to Achdus, One Article at aTime”) caught my eye.

In the spring of 1991, members ofmy Shabbat afternoon study group inLos Angeles went to hear RabbiSchachter deliver a discourse on themitzvah of making aliyah.

None of us had ever heard aboutthis mitzvah before. By July, my wife,Susan, and I were on a two-week pilottrip to Israel. By October 1, we starteddisposing of our household items, andpacking what we would need to estab-lish our new lives in Eretz Yisrael. ByOctober 31, we–Susan and I and ourseven-year-old twin daughters, Eli-sheva and Sarah–had arrived in Israel.

The past nineteen years flew by sofast. We often wonder, how did Bev-erly Hills ever prepare us for the op-portunity to watch our daughtersmarry former IDF soldiers, give birthto Sabras, and settle in Kibbutz Shlu-chot and in the settlement of Kida?

Despite the difficult experienceswe underwent during the early yearsof our aliyah, we were quickly com-pensated with many, many blessings.Did we make the right decision by tak-ing Jewish Action so fast?

Rav Hershel Schachter—thank you!

GEORGE ROTHJerusalem, Israel

Concerned AboutKitniyot� In “Curious About Kitniyot,”(spring2010), Rabbi Yaakov Luban and Rabbi

Eli Gersten support the authority ofminhag by appealing to “the Torah ofyour mother” (Mishlei 1:8). However,many aspects of the minhag of kitniyot,as presented by the authors, do not re-mind me of my mother, or my grand-parents, or they way Judaism has beenobserved for hundreds of years.

For example, the authors reportthat although Maharsham permittedoils of kitniyot, this leniency is “notwidely accepted.” But I rememberwhen stores sold peanut oil. How didthe minhag change?

The authors quote Rabbi MosheFeinstein’s pesak permitting peanutson Pesach, and then in deference tothose who regard peanuts as kitniyot,state, “one is unlikely to find certifiedkosher-for-Pesach peanut products.”Similarly, the authors cite reasons toforbid quinoa, although clearly RavMoshe would permit it. Since the rab-bis remain divided, the OU does notrecommend quinoa.

Alas, the older generation is gone,and I have no one to ask about foodsmy family permitted on Pesach. I donot remember these foods, in part, be-cause when I went to yeshivah, Ilearned from my rabbis that our min-hag does not permit kitniyot at all, pre-pared in any way. It took me years tonotice how bizarre it was to learn frommy rabbis not to trust the minhag ofmy mother.

The OU seems to take the stringentposition on nearly every issue. Despitethe principle that a doubtful case ofTorah law should be decided strictlyand a doubtful case of rabbinic law le-niently, here we have doubtful cases ofcustom, nearly all of which are decided

Letters

Jewish ActionTHE MAGAZINE OF THE ORTHODOX UNION

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4 I JEWISH ACTION Winter 5771/2010

stringently. Either the rabbis rulestringently, and instruct us not to eat acertain food, or they do not rule at all,so that no such item can get a hechsher,effectively endorsing the strict opinionwithout issuing a ruling. Over time, ourfidelity to purported minhag has intro-duced customs which our grandpar-ents would not have recognized.

ELIEZER FINKELMAN Southfield, Michigan

Rabbis Yaakov Lubanand Eli Gersten Respond� Eliezer Finkelman raises some ex-cellent points, and, on one level, weagree with his arguments. Minhagimshould be observed the same way theywere in previous generations.

Nonetheless, while individualsshould remain loyal to family min-hagim, the OU, as a communal organi-zation, attempts to be inclusive of thewide range of halachic positions when-ever possible. When there are conflict-ing minhagim, the OU seeks to avoidfavoring one tradition over another andto maintain a position of neutrality.

You might ask, as Mr. Finkelmandoes, why doesn’t the OU just adoptthe lenient position? By adopting astringent position (such as not super-vising corn oil for Pesach), isn’t the OUbeing just as exclusionary as it wouldbe by adopting a lenient stance?Not really.

Not granting certification (to cornoil, for example) is not tantamount totaking a stand. The OU is not saying,“Don’t eat this product if there is noOU symbol on the label.” However,certifying a product whose status issubject to debate would be interpretedas a solid endorsement of that product.It is simply not feasible to write the fol-lowing note on a label: “OU certifiedfor those individuals whose family cus-toms conform to the lenient positionon which this supervision is based.”

Respecting the validity of conflict-ing viewpoints, the OU follows the dic-tum of “shev ve’al ta’aseh odif,” which isto say that, at times, abstention is thebest course of action.

We would, however, like to makeone clarification. In our article, wewrote, “Since OU posekim are divided

on this issue, the OU does not recom-mend using quinoa on Pesach.” Bystating “does not recommend,” wemeant that the OU takes a neutral posi-tion and does not offer direction to thepublic with regard to the use of quinoaon Pesach. We did not mean to implythat we oppose using quinoa, and apol-ogize for being imprecise.

Still, Mr. Finkelman is correct that,de facto, the absence of an OU symbolon certain items, such as peanut prod-ucts for Pesach, creates the impressionthat eating peanuts on Pesach is not ac-ceptable. Yet it is precisely for this rea-son that our article is important. In thearticle, we made it clear that there aredifferent opinions about peanuts,quinoa, and oils of legumes, and thatthose who have family minhagimshould adhere to those traditions.

Rabbi Yaakov Luban is executive rabbiniccoordinator, OU Kosher. Rabbi Eli Gersten is the recorder of OU pesakand policy.

What Did Rav Moshe Really Say?� In the summer 2010 issue of JewishAction, Rabbi Michael Broyde wrote aletter in response to a statement byRabbi Aharon Feldman in his newbook, The Eye of the Storm. Rabbi Feld-man wrote: “Halacha is determined bythe cumulative decisions of the genera-tions of commentaries and decisors.Thus an opinion of the Rishonim,when codified by the major later au-thorities, is inviolable.”

Rabbi Broyde disagrees with thisview and attempts to prove that Torahscholars are free, under certain circum-stances, to disagree with the great au-thorities of previous times.

As his source, he cites Rabbi MosheFeinstein who defends his right to ruleleniently on an issue which earlierAcharonim had dealt with more strin-gently. However, the citation has anomission of several lines (indicated byan ellipsis) in which Rav Moshe adds acaveat: “We are certainly permitted toargue . . . assuming it is not counter theopinions of the renowned decisors, theauthors of the Shulchan Aruch, whichwere accepted in all our lands . . . ”

According to this caveat, RabbiFeldman’s words, that “an opinion ofthe Rishonim, when codified by the

major later authorities is inviolable,”echo those of Rav Moshe, and RabbiBroyde’s source- proof is unfounded.(In the most recent edition of JewishAction, this omission is detailed and at-tributed to an inadvertent editing error.Be that as it may, the citation validatesRabbi Feldman’s words rather than dis-proves them.)

Furthermore, the citation of thepertinent passage by Rav Moshe con-tains a serious error. Rabbi Broyde’stranslation reads: “. . . But in cases ofgreat need, and certainly in seriousmatters regarding the ending of mar-riages as is this case, we are certainlyobligated to rule [leniently] even if wemerely deem it plausible to be lenient,and it is forbidden for us to be amongthe humble . . . ”

The true translation of Rav Moshe’swords is: “. . . but in cases of great need. . . we are certainly obligated to rule[leniently], only if it appears to us to bepermitted [emphasis added], and it isforbidden for us to be among the hum-ble . . . ” Nowhere is there an implica-tion that plausibility, as opposed tohonest conviction, is sufficient basis tooverrule the rulings of previous gener-ations concerning Torah prohibitions.

Furthermore, Rabbi Broyde repeat-edly presents Rav Moshe’s opinion asthat in times of great need contempo-rary Torah scholars can argue with Ris-honim. In his words: “[When] all otherauthorities, including Rishonim, dis-agree.” The implication is that this ap-plies to any single Rishon or to anynumber of them. This, however is aninaccurate depiction of Rav Moshe’swords, which are: “And even if our un-derstanding will differ with the opin-ion of some great scholars from amongour masters, the Acharonim, what of it?Even we are certainly permitted to dis-agree with the Acharonim, and even attimes with some Rishonim, when thereare proper proofs and, more impor-tantly, proper logic. . .” Rav Moshewrites clearly that one is permitted,with the proper proofs and logic, toargue only with “some Rishonim.”

Finally, Rabbi Broyde’s understand-ing of Rav Moshe that it is “the role ofevery Torah scholar to step forward”and not “show deference to greaterposekim” is plainly limited to thosewho have reached an appropriately

high level of mastery of Torah. It wouldbe absurd to apply Rav Moshe’s ap-proach to halachic decision-making to“every Torah scholar.”

One should bear in mind that thesame line in the Talmud (Sotah 22A)criticizing scholars who have reachedthe level of higi’a l’hora’ah (the abilityto rule) for not willing to rule also criti-cizes those who have not reached thatlevel and nevertheless rule.

YOSEF WIENERBaltimore, Maryland

Rabbi Michael Broyde RespondsRabbi Yosef Weiner misunder-

stands my letter. I have no interest indisagreeing with Rabbi Aharon Feld-man or Rabbi Aharon Lichtenstein re-garding when one can argue withRishonim. Both of them are far greaterscholars of Torah than I.

I merely wrote to point out thatRav Moshe disagreed with both oftheir views.

One who looks at the quote fromIggerot Moshe sees clearly that RavMoshe is of the opinion that the unani-mous view of the Rishonim is bindingonly when it is codified without dis-pute in the Shulchan Aruch and itscommentators. That is a far cry fromwhat Rabbi Feldman wrote.

Rabbi Weiner also questions mytranslation of a section of Rav Moshe’steshuvah, which was in Hebrew. “Avalbemakom tzorech gadol . . . vadaimechuvin gam anachnu lehorot im raknire’eh lanu lehatir, veassur lanu lehiyotmeiha’anavim.”

Rabbi Weiner insists the transla-tion is, “But in cases of great need . . .we are certainly obligated to rule [le-niently], only if it appears to us to bepermitted, and it is forbidden for us tobe among the humble . . .”

This translation is wrong. “Rak im”is not the same as “im rak.” The formermeans “only if,” the latter, “if it is only.”Rav Moshe is not saying that we areobligated to rule leniently only if wethink it is permitted. Would anyone en-tertain the idea that Rav Moshe is cor-recting those who would rule lenientlydespite the fact that they thought it notpermitted? Moreover, the phrase“nire’eh lanu lehatir,” is a reference tothe fact that one is not 100 percent cer-

tain–nire’eh being a classical rabbinicword to denote “less than 100 percentcertain.” My translation:

“But in cases of great need . . . weare certainly obligated to rule [le-niently], even if we merely deem itplausible to be lenient, and it is forbid-den for us to be among the humble . . .”is correct. Rav Moshe means that incases of urgent need, a posek can adoptan understanding of the halachah thathe genuinely thinks is reasonable, evenif he himself recognizes that other un-derstandings of the Talmudic sourcescan be just as correct; he can prove hisview as a plausible read of the sources,but not the exclusively correct under-standing. This is a common situation inJewish law.

Rav Moshe wrote these words in1934, when he was a young man andcertainly not considered a Torah giantby the gedolim of that era. Rav Moshewas addressing the question ofwhether a woman may immerse in amikvah using earplugs; she would notimmerse without them, and that wouldlead to this couple getting divorced.

Rav Moshe wrote a total of sixteshuvot (Iggerot Moshe, YD 98-103)on this issue. These teshuvot repre-sent the longest collection of teshuvoton a single topic in all of IggerotMoshe. Rav Moshe presents a novelanalysis of the question, and permit-ted the woman to immerse in thismanner so as to avoid divorce.

One respondent asked Rav Moshewhether it is proper to rely on RavMoshe’s understanding of halachah,since it reaches a novel conclusion andall other authorities (including someRishonim) disagree. That is the ques-tion he is answering in the excerptabove. After stating his view that onemay argue with Rishonim when onehas proof, Rav Moshe concludes asfollows (after the word “humble”quoted above):

and cause Jewish women to remainunable to marry, or cause fellow Jewsto stumble in prohibited activities, oreven simply cause a Jew’s financialloss—see Gittin 56, which states, “Be-cause of the humility of RabbiZecharya ben Avkulas, the BeitHamikdash was destroyed”; why doesit say “his humility” and what doesthat incident have to do with humility?

See the comments of Maharatz Chayotthere for a correct interpretation—This, indeed, is what results [fromthese types of failures to act], and weare compelled to rule [leniently] evenfor practical application when wedeem it appropriate with evidence andclear understanding, and particularlyin a serious matter of leaving a womanwithout a husband or avoiding a se-vere temptation. Rav Moshe’s citation of the Ma-

haratz Chayot is central to under-standing his view. The Talmud tells usthat Rabbi Zecharya ben Avkulascould have prevented the destructionof the Second Beit Hamikdash, sincehe had a halachic basis for permittingone to bring an invalid sacrifice undercertain circumstances. This couldhave avoided insulting the Roman em-peror who sent an invalid animal as asacrifice. The Maharatz Chayot(Gittin 56a) states:

We see from this that the rabbisthought that the manner of RabbiZecharya was not proper, as he feltthat such sacrifices could be brought[and he should have so stated]. . . How-ever, because of his great modesty, hedid not have the strength to act accord-ing to his views halachah lema’aseh[and save the Jewish people]; rather, hewas afraid that other rabbis would ac-cuse him of permitting activity prohib-ited by halachah, and he did not thinkof himself as a great enough sage topermit people to act according to hisunderstanding of the halachah. Hethought that these types of decisionswere left only to the wisest of the gen-eration (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 adivorce—one should not defer to thegedolei hador of the generation, buteach Torah scholar should put forwardhis view of the correct understandingof the halachah in order to avoida tragedy.

Our community should be blessedto have more scholars like Rav Moshe;his vision, breadth, knowledge andwisdom are missed in this time ofterrible need.

Rabbi Michael J. Broyde is professor of lawat Emory University School of Law in At-lanta, Georgia, and a dayan of the Beth Dinof America.

Winter 5771/2010 JEWISH ACTION I 5

A Leadership Shabbat

A Leadership Shabbat FOR RABBIS, PRESIDENTS AND SYNAGOGUE DELEGATES

Spend a very special Shabbat, together with OU national leadership, as a delegate from your shul. Help set the agenda of the Orthodox Union for the years ahead.

Visit www.ou.org/convention or call 212.613.8188 for details.

Ask your OU-member shul about becoming a delegate. OU-member synagogues may designate up to eight delegates (subject to size of congregation). Hotel and travel costs for delegates are tax-deductible in accordance with IRS rules.

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