Kapporos in Contemporary Orthodox Judaism

There are compelling Halakhic reasons that kapporos should be dropped from the menu of Orthodox usage and practice. Even using this wrongful rite as a pre-charity ritual is, as will be argued below,   quite problematic. According to Rabbi Shelomo Aviner, “the custom of Kapparot has been rooted among the Nation of Israel for a long time, and no one has the power to prohibit it.”   This assertion is patently wrong. A custom that is old, but neither required by the Talmud nor accepted by all Israel to be binding after the Talmudic sage, Rav Ashi, is always subject to review. A “practice,” which should not be confused with a custom, which must be consciously adopted as a legitimate custom to be binding,  is on face value valid if it does not violate Oral Torah norms and the rite becomes the accepted practice of all Israel. Kapporos meets neither threshold. The “power to prohibit” does not reside in the charisma of the “great man” persona, but in the legislated Law that is memorialized in the Oral Torah library. If the rite’s performance violates legislated Torah norms,  that rite must be prohibited, in spite of its popularity.  “Everyone is doing it” does not sell when our children want to do something improper and as  parents, we have to say “no.” And the Torah does  entertain the possibility that everyone can be in error [Lev. 4:13].

At Shulhan Aruch Orah Hayyim 605, Maran Joseph Karo  observes that “some [people] have the practice to perform an ‘atonement’ rite on the eve of the Day of Atonement, [which entails] to slaughter a rooster for all human males and to recite [seemingly] relevant [Scriptural] verses. It would be proper to forbid [limno’a carries this sense in the Arabic idiom extant in 16^th Century Safed] the custom. While conceding that there are many decent authorities who endorsed the practice [Bet Yosef ad. loc.], Maran references Nahmanides who regards kapporos to be an “Amorite usage,” a euphemism for idolatry.

Alternatively, Rabbi Moses Isserles makes the following points:

1. There are great rabbis who have written [approvingly] of the practice.
2. Also,many latter day rabbis have written approvingly of the practice.
3. This is the practice in these regions, and one ought not to change [the custom] because it is of ancient pedigree.
4. The normative practice is to take a male [bird] for a [human] male, for a [human] female a female bird, and for a pregnant person two birds, lest the human pregnant women give birth to a male.
5.  We pick white birds for this rite. Following Isaiah 1:18, and the slaughtered kapporos victims are either given [directly] to the poor or are converted to cash and given to the poor.
6.  There are places where one goes to the cemetery and gives abundant charity. All of these are proper practices.
7.  One should lean upon the to be slaughtered bird, analogous to a sacrifice.

According to Nahmanides, his student, Rashb”a,  and Maran Joseph Karo, the kapporos  rite is incompatible with canonical Orthodox Judaism [a] because of the rite’s deflection from early Talmudic concern, itself stemming from Deuteronomy, not to allow even apparent  sacrificial rites outside of  Jerusalem, [b] the implicit theological claim that this contrived rite wrongly suggests is that God actually approves kapporos  as an atoning instrument and gesture, and the biblical demand for cultic exactness is ignored.  The Nadav and Avihu  tragedy occurred because these two otherwise great men performed an unauthorized cultic event  [Lev. 10:1]. Maimonides would not memorialize kapporos in his compendium because it was [a] not legislated as an Oral Torah obligation and [b] there are also theologically problematic elements to the rite, to be reviewed below.

R. Isserles’ version of Orthodoxy reconstructs itself out of popular religion custom, which is self-empowered to supersede and thereby override covenantal Oral Torah law:

1. The fact that post-Talmudic great rabbis approved a practice means little, as it is not per se a recognized rule of legal recognition in Orthodox, Oral Torah Judaism. If no vetting or refereeing approval by a Beit Din ha-Gadol takes place, the rite does remain subject to review. Why these great rabbis felt that kapporos is a kosher cult gesture is not stated, explained, or justified by R. Isserles. Recalling that in his Introduction to his glosses to Shulhan Aruch, R. Isserles puts heavy valence in the customs and usages of  Ashkenazic antiquity when these acts have been approved by R.  Jacob Tam.   R.  Eliezer b. Joel, and R. Joseph Colon, all of whom maintained, with apodictic certainty, that the practice of the pious may override official religion Oral Torah statute [see bBetsa 30a regarding dancing and clapping on holy days]. For this “tradition,” Rabbinic decrees are downgraded into reviewable folkways. While great post-Talmudic rabbis are authorized to make great and convincing arguments, they are not so great that they may override or legislate new laws in the Oral Torah canon.
2. If a latter-day rabbi approved of a practice, we have to know why he did so and subject that approval to critical review. Maran Caro’s concerns regarding Kapporos  are dismissed by R. Isserles, but they are not addressed.  If Orthodox Judaism is a “religion”  like Roman Catholicism, then latter-day saintly rabbis, carrying the mantle of apostolic Tradition authority, are virtually if not actually infallible. If Orthodox Judaism is the religion that God gave in the Torah law, then the opinions of men are assessed against the benchmarks of that singular Torah law. As noted above, “everyone is doing it” is not a recognized source of legitimacy in Jewish religious law.
3. Anticipating Emile Durkheim and Mordecai Kaplan, God’s authentic opinion for R. Isserles appears in both Oral Torah text as well as in the popular practice of the faithful. Old practices are by definition not subject to challenge or change. Sanctity resides in hoary antiquity as well as in the sacred, documented written word. Therefore, the great rabbis are allowed to permit changes even if those changes violate the canon and popular changes, once canonized by the culture, are no longer subject to review. Whenever R. Isserles writesen le-shannot, “one may not change,” one invariably discovers a post-Talmudic deviation from official religion Oral Torah practice.

The advocates of the kapporos folkway view the rite as a vicarious atonement. According to Jewish theological thinking, only God—and not any popular religion consensus—is entitled and empowered make this claim, that a given act serves as an instrument of atonement.

1. The preoccupation with death, fear, substituting the bird for the human deemed worthy of death, and the leaning on the bird all lend an aura of mystery  of sacred cult—and occult—tokapporos. But Deuteronomy demands that there may be no animal cult outside of Jerusalem.
2. The same R. Isserles who approves of the kapporos rite, even though it looks like a pagan rite, on grounds of its popularity, antiquity, and folkway power  and even suggests that we recline on the victim bird, but he fails to reference the rule that according to Oral Law tradition, women may lean on their offerings, even though men should do that, to feel good. Curiously, R. Isserles forbids women to slaughter animals, read Megillah for men, or to wear the tallit. For R. Isserles’ Judaism, God’s will is not etched in Mt. Sinai stone; it is inscribed in the collective memory of the communal conscience and the conditioned taste of the accepted culture of the Orthodox social street. When popular push comes to social shove, the values encoded in the Oral Torah canon are superseded by the living religion that views its particular iteration to be Masorah, or “Tradition.” This “tradition” is the community ethos that filters how the official religion Oral Torah canon is read and applied; we are  always reminded that we do not rule according to the Babylonian Talmud or Maimonides, the former Oral Torah’s canonical trove and the latter an attempt to memorialize in a handy compendium the most logical normative conclusions of Talmudic reports.
3. Those who argue that Ashkenazi Jews are always bound to obey R. Isserles’ rulings would do well to recall that R. Issserles did not requireglatt kosher, he permitted—and did—study philosophy, he did not insist upon a constant male head covering, but he did require teffilin on the intermediate festival day.  Orthodox Jews follow the best, rational read of Jewish law, not social pressure, politics, nostalgia, or the inconsistencies of institutional elites, be they the opinion makers of Sefardi or Ashkenazi extraction.

Jewish law does permit kosher slaughter [Deut. 12:21].  It also forbids non-authorized pain caused to animals. [bShabbat 117b, 128b. 154b bBetsa 26a and bBaba Mezia 31a –33a].  This particular legal concern may even be a Biblical mandate.  If one is so concerned that a woman ought not to wear a talleit or slaughter kosher animals, both of which are permitted by God’s revealed law but are forbidden by what Open Orthodoxy’s detractors call “Tradition,” as well as by R. Isserles.  It would seem that Jewish law would require a real license in the Oral Law for the un-commanded taking of an animal life for an act that appears to be sympathetic magic at best and an instance of latter-day paganism at worse. The kapporos rite wrongly claims that the selected bird [a] be seen as a vicarious atonement and [b] and personal exchange.  The atonement claim, that the selected bird when twilled above one’s head with the declaration zo kapparati, “this bird is my atonement,” enjoys no precedent in the Oral Torah’s canon; [b] the  temura rite does not relieve the carrier of the relevant trait, it is not so much a transfer or exchange as it is an extension of that trait [mTemura  3:1] and [c] and according to the Oral Law, birds are not eligible for temura [mTemura 1:6].

Rituals are not magical gestures in Orthodox Judaism. They are either legislated, commanded acts or legitimate customs.  Kapporos bird swinging is a popular practice  that has raised eyebrows among many learned Jewish highbrows.  The rite causes unnecessary—and therefore unauthorized and forbidden— pain to its duly designated victims, it is performed like sacred slaughter outside of Jerusalem, and it  also makes very questionable theological claims.  The thinking and believing Orthodox Jew does not accept any human authority blindly; she or he accepts God’s entire law knowingly, lovingly, and critically. Charity is good to give because it is used for doing good.   Shaking shekels or twirling twenty dollar bills over one’s head appears to this reviewer to be an unauthorized, and therefore improper, act.  If the pious Jew is required to challenge the dreamer and “prophet” who contradicts the law, then R. Aviner must be pressed to explain why appeals to Great Men and popular consensus overrides plain sense, logical readings of Oral Law norms.

Jewish rabbinic authorities are both synchronic and diachronic actors. Rabbis both inherit a Tradition and they address a living reality. Jewish rabbinic authority is located in the legal norm, statute, and the legislation of the Oral Torah.  This authority does not reside in the intuition of great men, the charisma of popular leaders, the unchecked taste of popular culture, or  in the power of political elites.  A truly Great Rabbi must convince and not coerce his audience. God’s will is manifest in the sacred text and not in sacred intuition. By judging Jewish culture against the authentic benchmark of legislated Torah laws and values, Torah empowers the individual Jew to be a religiously critical thinker, what Rabbi Joseph Soloveitchik called a “religious Subject.”  The Kapporos rite is both popular and problematic.

If Orthodoxy is only what Orthodox Jews do, it is the nostalgic wing of Reconstructionism; if Orthodoxy is what Jews ought to do, then the Tradition of the sacred text necessarily trumps the “tradition” of familiar usage.

 For all of these reasons, people who observe kapporos may actually be in need of atonement; the rite ought to be deleted from the inventory of legitimate Orthodox customs.