TRADITION Questions: “Ghost Mitzvot” Response
Rabbi Chaim Strauchler raises a series of fascinating questions in his recent TRADITION Quetsions post about Biblical Mitzvot which many Ashkenazic Jews did not practice for centuries, but which are beginning to come “back to life” with renewed interest and observance in our modern era. In a response, Baruch Sterman correctly notes that lack of performance on account of a lack of practical historical availability (as in the case of tekhelet) is different from lack of performance on account of economic pressure. Yet, both posts group together two mitzvot that were not followed in Europe for centuries, the prohibition of eating the new grain before the second day of Pesach (hadash), and the requirement to give priestly meat portions to the Kohanim whenever an animal is slaughtered (matanot).
I would add that even the comparison between hadash and matanot is imperfect. As I have argued elsewhere, there is scant Talmudic evidence that the priestly meat portions are limited to Israel, and even those few Rishonim that provide the leniency (such as Rashi, cited in the original “Ghost Mitzvot” post), confess that in truth the practice should be followed in the Diaspora.
In contrast, Tannaim (Kiddushin 37a), Amoraim (Menahot 68b, 84a), and numerous Rishonim all hold that the rules of new grain are Biblically limited to Israel and do not apply to the Diaspora. Though, indeed, it is correct to argue that “The majority of Rishonim rule that hadash is applicable outside of Israel,” it is far from clear whether a majority of Ashkenazic Rishonim believes the case of new grain is Biblically prohibited in the Diaspora. Arukh ha-Shulhan (Y.D. 293:19) cites seven authorities including Rabbeinu Baruch (Responsa Maharam [Lemberg], 199), Ohr Zarua (328), and possibly Terumat ha-Deshen (per Magen Avraham 489:17) who are lenient. Yes, Rosh (Responsa 2:1), Ravya (527), Semag (142) and Semak (217) are stringent—but the question is far more open. Arukh ha-Shulhan (Y.D. 293:21) writes that it is “completely permitted” to eat the new grain in Diaspora locations that are far from Israel, in recognition of a long standing halakhic tradition from Rabbeinu Baruch through his day.
Rabbi Yehudah Spitz’s article in The Journal of Halacha and Contemporary Society (Fall 2017) frames the leniency of hadash, like the leniency of matanot, as one that was doubted even by many of those that argued for it. This results in a leniency under duress that was only intended in a specific, limited context. For example, he says that Arukh ha-Shulhan, the leading posek for late 19th century Ashkenazic Jewry, did not himself support this leniency (n. 18), but closer inspection of Arukh ha-Shulhan (Y.D. 293:21 and O.H. 603:2) indicates that he did actually believe it was totally permitted today in the Diaspora and does not express hesitation about the position.
Leniency about the priestly meat portions (Arukh ha-Shulhan Y.D. 61:53) is a leniency without strong basis in the sources which even the Rishonim felt should be rejected, but leniency about the new grain has a far more well-grounded basis. Is it true that “At times, economic and social forces necessitate the abridging of halakha. The exigencies of Jewish history have forced the abandonment of certain practices”? Yet, in the case of hadash, it seems to me that we merely have an example of an agricultural mitzva Biblically limited to Israel with little reason to be extended to the far reaches of the Diaspora, and not an example of economic forces pressuring the rabbinic opinion throughout generations to “abridge” halakha.
To frame this point slightly differently: There is a difference between mitzvot that lapse because the economic costs become too high, and those where rabbis embrace a lenient view on the basis of halakhic reasoning which happens to align with economic interests—coincidentally, serendipitously, subconsciously, or providentially (depending on one’s view of how halakha operates). The meat portions fall into the first category: as Rashi notes, the mitzva is merely a mitzvat Asse, and halakhasists argue that it lapsed as a result of economic pressure. But eating hadash is a prohibition, and a fairly serious one as forbidden foods go, and is better understood as being part of the second category. Leniency here is a matter of principled halakhic analysis, and in that case, there is less of a drive or push towards changing practices when circumstances change.
Dr. Yaakov Jaffe is the Rabbi of the Maimonides Kehillah, and Dean of Judaic Studies at Maimonides School.
Chaim Strauchler responds: I thank both Dr. Baruch Sterman and R. Yaakov Jaffe for their careful analysis of differences within a category that I recently termed “Ghost Mitzvot.” That is, practices whose abandonment highlight the gap between widely-assumed Torah ideals and lived Jewish reality. Sterman and Jaffe are both correct to note that Jewish communities did not observe tekheilet and hadash for distinct reasons, not necessarily economic. The commonality that tekhelet, hadash, and matnot kehuna share is modern social efforts for their renewal within Jewish life. My essay questions how modern economic prosperity as well as social pressures within modern Jewish life make these efforts more or less successful.