Is Chinese Food on Xmas Kosher?

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imageSupreme Court Justice Elena Kagan amused the nation when, during Senate confirmation hearings, she responded to the question “where were you on Christmas day” that “like all Jews, I was probably at a Chinese restaurant.” However, my minyan experience challenges the propriety of this practice.

R. Yitzchak Hutner ruled that we may not observe days that are determined by the secular calendar.[1. Pachad Yitzchak, Iggeros U-Kesavim, p. 109. On the use of the secular (or Christian, as some call it) date, see Responsa Maharam Schick (YD 171) and She’eilas Shlomo 1:328 in the name of R. Tzvi Yehuda Kook who oppose using it and Yabia Omer 3:YD:9 who permits.] This comes into play most famously on Thanksgiving (link) but also many other times during the year. While you may eat turkey any time you want, he holds that you may not specifically eat it on Thanksgiving. While most halakhic authorities disagree, R. Hutner’s students follow his approach.

This morning, I attended a late minyan along with many people who do not have work today. However, not every shul adjusted their schedule for the day off. I used to live a block from Yeshiva Chaim Berlin, where R. Hutner served as rosh yeshiva and where his influence is still strong long after his passing. I remember that on any legal holiday, the shuls where his students were rabbi did not adjust their minyan schedules. The early commuter minyanim continued as if everyone was still going to work, so as not to mark the day in any fashion. (Of course, the local minyan factory, which always has a minyan every half hour, was even more packed than usual with people who wanted to sleep a little later than usual.)

According to R. Hutner, I believe, you may have Chinese food on any day you wish. However, you may not have it specifically on December 25 because that recognizes a day on the secular calendar. According to most other authorities, you may choose to eat Chinese food specifically on December 25. However, you must of course still make sure it is kosher.

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student has served two terms on the Executive Committee of the Rabbinical Council of America and currently serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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  1. The crux of the matter is what is the mechanism of “change.” Significant change has happened in the past (selling chametz, heter mechirah), but never because gedolei Yisrael simply decided, “we don’t like this anymore.” Rather bold mechanisms were found within halakhah to address what they felt was a burning issue. If we take today the issue of conversion in Israel – as I laid out in the Mosaic essay – and you look at what some significant poskim here are saying about this, they don’t just say “we need to convert these people; kabbalat mitzvot is no longer relevant.” Rather, they demonstrate that the definition of “kabbalat mitzvot” within the sources may be more elastic than we think. As Gil Student aptly wrote in response to my piece, this process is a delicate art. The time for that change here in Israel will come when enough significant poskim come on board, but that hasn’t happened yet.
    “Society changes but human nature does not.” Let me address this from the vantage point you raised – theological, rather than halakhic. – all moral issues, by definition are relational–what am I doing to another person–and hence some moral issues, too, have a certain degree of flex in them. Laws of inheritance have changed (women today inherit); the observance of yibum and chalitzah have changed over time. How do we know the limits of this? What is the formula for knowing exactly what to change when? This, alas, is an art, not a science.

  2. Thankyou Prof. Berman, for all eight articles and thankyou Rabbi Student for having the courage to present them. Sometimes I give up all hope that Jewish people will ever grow up intellectually; just knowing these articles exist and are available brightens up my day.

    My only regret is that they did not appear on the old Hirhurim where they would have doubtless provoked a multi-page comment thread by now packed with all sorts of “data from which to reason”.

  3. Aside from disagreeing with the idea that it’s viable to say that numerous ancient texts that lists “when someone does X, judge them Y” aren’t thinking in terms of statutory law. And disagreeing that we can think of the laws of the Torah as common law despite the vast majority being hypothetical. (A few cases aside: meqotzeitz eitzim, benos Tzelafchad, what to do with Pinechas’s qana’us…) So much for recapping previous comments.

    I have two problems with the basic thesis, both deriving from the fact that there is no legal process to a common law:

    The internal consistency issue is that these latter essays seem to conflate (a) a common law attitude to halakhah and (b) a statutory but a purpovist or original intentionalist approach that requires artistry rather than a strict constructionist or similar algorithm.

    The “frum” issue is that by the time we reach Chazal, we know halkhah is indeed statutory. The medrashei halakhah, the mishnah and Tosefta… This thesis introduced a discontinuity over which we cannot simply discuss in terms of an evolution in accord with halachic process. For that matter, it involves a start to the very concept of “halachic process” that is later than the giving of the (presumably common-) law at Sinai. This puts in question the Sinaitic nature of any pesaq-interpreted halakhah, clearly not the intent of the series.

  4. Rabbi Berman,

    Your argument goes way past examples like mechirat chametz which evades the original law. You’re talking about overturning — directly contradicting — earlier laws.

    This is much, much more radical than what liberal halachists normally argue for.

    If Moshe could decide a few decades after the Torah was given to overrule (not evade, but overrule) a detail in a mitzvah, then surely — according to your theory — we should have overruled (not evaded but overruled) tons of details by today, 3,000 years later, had we not somewhere along the way lost our understanding of how fluid Torah law was meant to be.

    Perhaps I need to learn a bit more about common law, but I find the whole theory a bit troubling.

    As matters stand now, when I read something in Chumash that is in dissonance with my feelings, I say to myself, “Yikes, I have to reshape how I think about this matter because although it doesn’t seem super bad to me, G-d obviously thinks differently.”

    According to what you’re saying, should I have these feelings? Perhaps not since they don’t represent G-d’s immutable will after all.

    When the Torah says “kares” (i.e., super bad) about certain sins, you’re telling me that this doesn’t necessarily represent G-d’s opinion. It simply was G-d’s opinion for one particular generation.

    What, then, am I supposed to have in mind when studying Torah if it isn’t G-d’s immutable will? Are the Torah’s pronouncements even guidelines? Or, as the old joke has it, are they merely suggestions?

    (Please forgive my tone. It’s because I take you seriously that I am grappling with these questions. If I thought your whole theory was bunk, I wouldn’t bother.)

  5. I think if you read my Mosaic piece carefully, you’ll see that I put a premium on consensus as a prerequisite for change. I think that many who argue for a more libertal interpretation of halakhah do not see the need for that.
    You raise a very important question about how we are meant to learn lessons from our reading of Chumash. Our pure, and initial intuition is as you say – I read the Torah, and I see Hashem’s will clearly spelled out, and then I shape my identity and perspective accordingly – aseh retzonchah kiretzono.
    However, then we encounter the Rambam (Esssay II) who tells us that the formulation of many mitzvot was directed at the spriitual needs of a specific generation. And then we encounter the mitzvah of Yibum–where the pshat clearly puts a premium on performing yibum over chaltizah as an icnredible act of hesed, but then we see that chaza”l over time put much more emphasis on chalitzah as the way to go–because chaza”l came to cherish monogamy as the best way to build a home. I think that in forming our identity and outlook, we need to consider the wide range of sources available to us through our mesorah. That’s why we have a Torah she-ba’l peh, int he widest sense of that term. Those, for sure, do not always speak with one voice. But it means that we are not utterly rudderless as we confront the compelxities and vagaries of our age.

  6. Wonderful essays, Rabbi Berman. An incredible resource.

    Two questions:

    1. I appreciate your treatment of ‘chok olam,’ but am curious of your interpretation of what the Torah means when it says that a law is “l’dorotam” or “l’doroteichem’– say, by Brit millah, Shabbat, the korban tamid, and Pesach. Should we not see these as immutable statutes?

    2. I think part of what disturbs people about your thesis is the possible implication that Cha”zal might have had the wrong idea about the Torah– i.e., that they regarded it as statute rather than common law, and then the Talmud institutionalizes the error by turning us into a people bound by statutes. Or is your view that Cha”zal essentially viewed themselves as engaging in a novel enterprise of codification born by the need to ensure coherence to the people at a time of chaos?

  7. Those mitzvot are, indeed, “for all generations.” But how, exactly, shabbat is to be observed, changed over time. Yirmiyahu was the first to expand the reach of its observance. If you accept the Netsiv’s approach that I mentioned in Essay VII, then one can well imagine that as the “chukim” changed, so did the practical applications of the “mishpatim” conerning shabbat.
    Concerning your secon set of questions, I engage much of this in my Mosaic essay – http://mosaicmagazine.com/essay/2013/12/what-is-this-thing-called-law/

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