Kol Nidrei and the Fëanorian Oath by Independence1776

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Kol Nidrei and the Fëanorian Oath

Kol Nidrei is one of the most popular Jewish rituals and is a release of vows a person makes between themselves and God. It occurs immediately before the evening service for Yom Kippur. (There are technical reasons for why it’s not a part of the service itself, but that’s beyond the scope of this essay.) A typical Ashkenazic translation-- there are variations-- of the text is:

Every vow, renunciation, declaration, pledge, promise, obligation, oath, which we have vowed, sworn, declared, and renounced upon ourselves from this Yom Kippur until the next Yom Kippur-- may it come upon us for our good!-- we renounce them all, we are released from them all, they are erased and abolished, they have no binding force or obligation. Our vows are not vows, our renunciations are not renunciations, our oaths are not oaths.1

The question is: if Maglor were to say Kol Nidrei, would his oath be annulled?

The first problem dealing with Maglor and Kol Nidrei shows up immediately: Maglor’s not Jewish and Kol Nidrei is for Jews. So Maglor needs to convert, which brings up two more questions: a) is it possible for an Elf to convert and b) is it possible for a murderer?

1a) Is it possible for an Elf to convert?

Tolkien says in Letter 153 that “Elves and Men are evidently in biological terms one race, or they could not breed and produce fertile offspring.” The simple answer would be yes.

But this gets complicated if you take the bit from “Of the Beginning of Days” in The Silmarillion that implies the Elves have no free will because beings without free will cannot convert. This brought to you by the traditional Jewish thought that aliens do not have free will.

For the purpose of this, I’m ignoring the “do Elves have free will?” thing because if not, what’s the point of looking further into the Kol Nidrei matter? Also, I disregard that bit in general, so I’m not doing anything I wouldn’t ordinarily do.

1b) Is it possible for a murderer to convert?

The answer: yes. Maglor would have a difficult time finding a rabbi who would do so, but it is indeed possible. A more detailed look at the “can bad people convert?” matter can be found in this Forward article. There’s also an article on the Times of Israel about a former mobster who converted.

2) So now that we know Maglor can indeed become Jewish, what effect would Kol Nidrei have on the oath?

This is where things get complicated. It turns out that Kol Nidrei is not the only way to invalidate oaths and vows– and it may not even be a valid way of annulling them.

The following five paragraphs come from Entering the High Holy Days by Rabbi Reuven Hammer, Chapter 7 “The Yom Kippur Liturgy I: Kol Nidrei,” The Meaning of Kol Nidre:

On the surface, the subject of Kol Nidre is clear: it is a renunciation of vows. But what vows, and made when– during the last year or in the year to come? And if the subject is vows, why then do we recite the verse from Numbers, which refer not to vows but to the story of one of Israel’s greatest sins: the slander against the Land of Canaan told by the Israelite spies and the subsequent rebellion and refusal of the people to enter the Land they had been promised?

Vows are a serious subject within Judaism. Specific laws in the Torah pertain to them, and the rabbinic writings devote whole tractates to them. The specific terminology of Kol Nidre is actually borrowed from a law in Numbers 30:14, which talks of ‘every vow and every sworn obligation,’ kol neder ve-khol shevu’ah. [In context, referring to vows a woman makes without her husband’s permission.]

Why are vows regarded with such seriousness? The writer of Ecclesiastes felt that vows could be dangerous: ‘When you make a vow to God, do not delay to fulfill it … It is better not to vow at all than to vow and not fulfill’ (5:3-4). The Rabbis advised against making a habit of swearing vows (B. Nedarim 20a), and some, like the Amora Samuel, were of the opinion that making a vow, even if one fulfills it, is a sin (B. Nedarim 22a). Furthermore, certain vows were considered automatically void: ‘The Sages have invalidated four types of vows: incentive vows, exaggeration vows, erroneous vows and vows made under pressure (M. Nedarim 3.1).* Rabbinic Judaism also evolved a specific method for annulling legitimate vows, requiring that they be declared void by an ordained teacher or by three laymen (Shulchan Arukh Yoreh De’ah 228).

* Incentive vows are those made in business dealings when all assumed that positions were taken only for bargaining purposes; exaggeration vows refer to ways of speaking that are not meant to be taken seriously, such as ‘I saw as many people as crossed the Red Sea’; erroneous vows refer to vows are those where one had incorrect information; and vows under pressure refer to vows that were made but could not be kept because of unforeseen circumstances, such as a flood that prevented one from reaching one’s destination.

Although at first glance Kol Nidre appears to be a legal formula for such a nullification of vows, it does not, in fact, meet the criteria for doing so. It does not specify the vows that are to be annulled, nor is there any specific court convened for doing so. All in all, Kol Nidre is something of a paradox. And before we can unravel it, we must look into its origins.

For Eärendil’s Silmaril, him flying in space would likely count for the ‘vows under pressure’ angle!

From there, I went to the English Shulchan Arukh found on Sefaria. Neither Chabad’s nor Wikisource’s versions had Yoreh De’ah 228 available. Sefaria, on the other hand, did– albeit only two paragraphs.2 (Sefaria’s translations are largely community translations and can thus be randomly scattered throughout a document.) They follow:

Yoreh De’ah 228.1:

One who took a neder (sic: vow) and regrets it, can rectify the acceptance of the neder by having remorse. Even if one took a neder with the name of G-D. What should that person do? They should go to a wise (Torah Scholar) who is an expert, who (is well versed in) learns logical inferences and deductive (talmudic) reasoning. If there is no expert, one should go to three average people. These should be people who study with logical inferences and deductive reasoning, and who also know how to find loopholes; and they will release the vow. Nowadays there is no one considered to be an expert who is able to release a vow solely by themselves.

Yoreh De’ah 228.14:

Prior to annulment, (one) must state the vow explicitly and the reason the vow was taken. If the vow was not stated, the nullification is not (considered) a nullification. However, if one states the vow to one (of the people) that are nullifying the vow, then it suffices.

A bit of halakhah (Jewish law) linked on Sefaria with these two paragraphs:

Mishneh Torah, Oaths 6:1 (this was listed only with 228.1)

If anyone took a rash oath and regretted it; he realized that he would suffer if he kept this oath, so he changed his mind; or something occurred to him of which he was unaware at the time of the oath, and is sorry on its account, he should apply to a sage, or to three laymen if no sage is available, and they will absolve him from his oath, and he will be permitted to do the thing he swore not to do, or not to do the thing he swore to do. This is called absolution from oaths.

Mishneh Torah, Oaths 6:5 (listed with both)

How are oaths absolved? The person who took the oath should present himself to the distinguished scholar, or to three laymen if no expert is available, and say: "I took an oath concerning this and that, and now I am sorry. Had I known that I might be distressed because of it to such a degree, or that such a thing might happen to me, I would not have taken the oath. Had I known at the time of the oath what I know now, I would not have sworn." Thereupon the scholar, or the eldest of the three laymen, should say to him: "Have you regretted it indeed?" And he should reply: "Yes." Then he should say to him: "You are set free, you are pardoned," or anything similar in meaning in any language. If, however, he said to him: "Your oath is void," or "Your oath is eradicated," or something similar in meaning, what he said is of no avail, because none except a husband or a father can revoke an oath. A scholar may use only terms of absolution and pardon.

So not only is there a halakhic way for Maglor to have his oath revoked, we have the procedure for doing so– and it’s not Kol Nidrei.

Yet Kol Nidrei has been argued back and forth across the centuries as to if it is or is not a valid legal text that annuls vows.

Entering the High Holy Days has a section about Kol Nidrei’s origins. It says that the origins of Kol Nidrei are unknown and that two common theories (it originated in Spain during the Inquisition or when the Visigoths forcibly converted Jews in the seventh century) are historically suspect. There are two theories Hammer considers plausible:

The first is that Kol Nidre is a later displacement of an ancient customs mentioned in the Talmud, a ceremony held to annul vows on the eve of Rosh Hashanah. […] It should be noted, however, that the Talmud indicated (on the very same page, no less) that this idea was not to be taught publicly ‘so that vows would not be treated lightly.’ It would seem strange, then, to have this furtive teaching turned into a major public ceremony. It should also be noted that this practice refers to annulling vows for the coming year, while the ancient text of Kol Nidre speaks of vows already taken but not fulfilled.

The second credible explanation of the origins of the prayer derives from Aramaic texts (discovered during this [last] century) containing formulas very similar to Kol Nidre. During the gaonic period in Babylonia (the ninth and tenth centuries CE), magic formulas were in common use among Jews and non-Jews alike. Many of these were written in bowls and used as spells for the exorcism of demons and evil spirits.3 These formulas contain many of the key-words we find in Kol Nidre, such as ‘released,’ ‘abandoned,’ ‘inoperative,’ ‘null,’ and ‘nullified.’ It has been suggested that Kol Nidre may have originated as a magical formula to eliminate demons, assuring that no evil spirits could interfere with the sacredness of Yom Kippur. This explanation would account for the vehement opposition to this popular custom on the part of many Geonim4 because it strayed so far from the non-magical beliefs of normative Judaism. Whatever its origin, scholars generally agree that Kol Nidre was not an official prayer formulated by the Tannaim5 or even by the Geonim, but was the popular creation of the masses, who overcame the official opposition to make Kol Nidre the most sacred of all prayers.

Rabbi Stuart Gershon’s book Kol Nidrei: Its Origin, Development, and Significance deals with the same material as the above, but in greater detail. I can’t summarize the entire book6, but there are some quotes that illustrate the difficulties Kol Nidrei inherently has. I put the quotes in more-or-less chronological order, not in chapter order, so they would flow better.

From Chapter 12, “Summary of Finding,” The Nullification of Vows:

Biblical sources made it abundantly clear that vows were a serious business that must be carried out. At the same time, however, Numbers 30 established the principle of revocation of vows (hafarat nedarim) for female minors and married women. Fathers had the power to revoke the vows of their daughters (as minors), and husbands had the power to revoke the vows of their wives. Since no other population besides female minors and married women has even the possibility of being released from their vows, biblical sources encouraged people not to make vows at all. Numbers 30 nowhere mentions the nullification of vows (hatarat nedarim). Indeed, there is no provision for the nullification of vows in the Hebrew Bible. It is strictly a postbiblical phenomenon. […]

Jewish law also recognized a procedure for the anticipatory invalidation of vows that may be undertaken in the future. This action prevents future vows from ever taking force. This procedure involves the declaration of intent to invalidate future vows in the form of an advance stipulation (bitul tenai). This procedure is described in B. T. Nedarim 23b. Rava7 did not want this procedure to be taught to the public, lest they begin to disregard their vows. Rava’s objections notwithstanding, by the eighth century Nedarim 23b was attributed to be the talmudic source of kol nidrei.

From Chapter 2, “Vows in the Rabbinic Period”:

In this context [that oaths and vows had magical components involving a curse] the biblical and rabbinic statements against vows and oaths take on a new significance. Deuteronomy 23:23 and Ecclesiates 5:4 urged people not to make vows. Similarly, we have a rabbinic proverb: ‘Right or wrong, do not involve yourself in an oath.’ The seriousness with which vows and oaths were held was due not only to their abstract legal and ethical stature, but also to the concrete fact that the abuse of a vow or oath activated the curse the swearer had imposed upon himself or herself, or a loved one.

In the Fëanorian oath, that curse would be the Everlasting Dark aspect.

From Chapter 3, “The Nullification of Vows in the Mishnah and the Talmudim”:

The rules of hatarat nedarim [annulment of vows] are complex. For the purposes of our study, these are the most salient points:

1. An individual cannot annul one’s own vow (M. Negaim 2:5). Only a sage has the authority to annul a vow (B. T. Shevuot 28a). In the absence of a sage, however, a vow can be nullified by three knowledgeable laymen, that is, a bet din (M. Nedarim 2:5; B. T. Bekorot 26b/37a).
“2. The vower must specify the contents of the vows to the sage or bet din (B. T. Gittin 35b).

The grounds for the nullification of vows in Jewish law are based upon the concept of ‘regret’ (charatah). Charatah has two possible forms, one simple and one complex. Simple ‘regret’ occurs when an individual expresses sincere regret for his vow and claims that it was made under abnormal circumstances, such as in a fit of rage (B. T. Nedarim 21a/22b). Under some circumstances this may be sufficient grounds to annul a vow.

But in Jewish law the mere fact that an individual regrets having undertaken a vow does not, in most instances, release the person from the vow. Most often the second and more complex form of charatah is required. In this instance, the sage of bet din must find a petach charatah (opening of regret) for the vower. A petach is a foreseeable but unconsidered fact, circumstance, or consequence, such that the vower can truthfully claim, ‘Had I know or considered X, I would not have made this vow’ (M. Nedarim 2:1, 5; chap. 9 and B. T. Nedarim 22b, 77b).

Maimonides (Rambam)8 described the procedure for the nullification of vows in the following manner: ‘The swearer must appear before outstanding scholar or before three ordinary men where no expert is available and say, ‘I swore an oath concerning such and such matter, and I now regret it. Had I known that I would be in such distress through it, or that such and such a thing would happen to me, I would not have sworn,’ or ‘had I been of the same mind at the time of swearing as I am now, I would not have sworn.’ The sage, or the senior of three consultants, should then say to him, ‘and do you indeed regret it?’ He should reply, ‘yes.’ Whereupon the sage should say to him, ‘you are released’ [sharui lekha] of ‘you are absolved’ [mutar lekha] or ‘you are pardoned’ [machol lekha] or something to the same effect in any language.’

The annulment was justified on the grounds that since the vower neglected to realize all the ramifications of his vow, he made the vow by mistake. The sage or bet din annulled the vow on the basis that it was not the vower’s true intent to undertake this vow. But if the vower was lying about his feelings of regret, then the vow remained binding even if the sage or bet din annulled it. In modern parlance, we would designate the process of potchim petach as ‘finding a legal loophole.’

From Chapter 12, “Summary of Finding,” Kol Nidrei and Incantation Texts:

The discovery of the Babylonian magic bowls sheds new light on the religious praxis of Babylonian Jewry, particularly with respect to kol nidrei. For example, some of the incantation texts inscribed on the magic bowls nullified the malevolent oaths, curses, and spells. In addition, some of these incantations employed terms found in kol nidrei, including, remarkably, the very words ‘kol nidrei.’

The linguistic parallels and conceptual affinities between kol nidrei and the Babylonian incantation texts have been interpreted in two ways. The minimal claim, represented by Levine, holds that kol nidrei was a legal fiction for the nullification of human vows. Believing in the power of legal formulae such as the nullification of vows, bills of divorce, and contracts to bind humans and demons alike, the authors of these Babylonian incantation texts utilized the same legal terminology as found in kol nidrei but applied it to a magical context.

The maximal claim, represented by Gordon and Gold, holds that kol nidrei was a magical incantation in its own right and can best be understood as belonging within the context of the Babylonian incantation texts. […] In this view kol nidrei did not annul human vows at all. Kol nidrei functioned as an incantation against demons by annulling the entire ranges of curses people bring upon themselves and others.

From Chapter 8, “The Babylonian Geonim and Kol Nidrei”:

Except for Amram’s remarks, the Geonic responsa uniformly attributed their opposition to kol nidrei on legal grounds: (1) kol nidrei was a nullification of vows they had already prohibited; (2) the practice had no precedent in rabbinic tradition; (3) kol nidrei violated Rava’s talmudic dictum against educating the public about procedures to nullify vows. Beyond these explanations the Geonic sources do not go.

From Chapter 9, “Kol Nidrei in the Medieval Period”:

By his citation of Numbers 30:6, the Maharam9 may have been refuting the argument put forward by critics of Rabbenu Tam’s10 emendation that kol nidrei must refer to unfilled past vows or there would be no need for divine forgiveness. Numbers 30:6 explicitly stats that God would forgive a woman whose father forbade her from fulfilling her vow. Consequently she must have required forgiveness, even though she was fully aware that her vow had already been revoked, demonstrating that divine forgiveness is required even for vows that never actually took force. Hence kol nidrei can request divine atonement without referring to past vows.

From Chapter 9, “Kol Nidrei in the Medieval Period”:

The Rosh’s11 refutation of Rabbenu Tam’s arguments is twofold. First, he asserts that the language of kol nidrei is indisputably in the past tense. […] Second, he believed it was the express intent of the early authorities that kol nidrei refer to past vows so that the public could be spared the serious divine punishment that would be incurred by the failure to fulfill vows already in force. […]

As for the other legal objections raised by Rabbenu Tam, the Rosh sought to demonstrate in each case that kol nidrei fulfilled all the requirements of talmudic law for a valid nullification of past vows. Regarding the objection that kol nidrei did not contain a charatah, he claimed the existence of a general assumption that anyone who failed to uphold a vow must have had a charatah. In addition, he maintained that the requirement for a bet din in the absence of a sage to authorize the relief from vows was more than fulfilled by the fact that the entire congregation chants kol nidrei along with the prayer leader. Finally, the Rosh claimed that Rav Pappa’s12 rule by which the vow must be specified before a sage referred only to situations in which the sage was concerned that the vower wanted to annul a vow that involved a mitzvah. But since kol nidrei cannot annul mitzvah obligations, this rule does not pertain.

From Chapter 4, “Versions of Kol Nidrei”:

All three kol nidrei versions [Ashkenazi, Western Sephardic, Eastern/Oriental Sephardic/Mizrahi] straddle the fence between Amram’s nullification of vows and Hai’s prayer for absolution, by combining both elements in equal measure. For example, both the classic Ashkenazi and Western Sephardi kol nidrei lack one element necessary for a prayer of absolution: they never mention God! On the other hand, both the Western and Oriental version of kol nidrei lack a critical element associated with the nullification of vows: they never declare the vows ‘null and void’ (betalin umevutalin).

By the thirteenth century kol nidrei had undergone another major emendation. In an attempt to further strengthen the legitimacy of kol nidrei to nullify past vows, Meir ben Baruch of Rothenberg (Maharam) added a preamble that justified the release from vows on the basis of consent of the majority. This emendation was universally accepted through the Jewish world: ‘By the authority of the heavenly court and by the authority of this court on earth, with the consent of God and with the consent of this congregation, we permit prayer with transgressors.

Modern thoughts on Kol Nidrei lean toward that it is a legally valid way to annul oaths taken between a person and God. That said, it’s possible to easily find people still arguing that it isn’t. (Just look at Entering the High Holy Days!)

Reformjudaism.org says:

Recited in a mix of Hebrew and Aramaic, the vernacular language of the time, Kol Nidre cancels and annuls all unintended vows made to God during the previous year.

Here’s the relevant paragraphs from a page on the Orthodox Union’s site:

Dating back until at least the ninth century, Kol Nidrei , at first glance, seems to have nothing at all to do with Yom Kippur. Indeed, it appears to attempt to release one from keeping his oaths and vows. Many commentators address this issue and their main approach seems to be that Kol Nidrei , in actuality, emphasizes the importance of keeping one’s word and reaffirms our belief of honoring our commitments. How appropriate, as we enter a day when we will be saying over and over how we plan to change and do teshuvah [repentance].

Over the years various versions of Kol Nidrei have been adopted in various places. Indeed, the version found in most siddurim [prayerbooks] actually contain parts of each version. This stems from a machlokes (halachic dispute) over whether Kol Nidrei is to annul vows from the past year (Babylonian traditional) or to declare annulled all vows of the coming year (European tradition, Tosafot).

The Observant Life (edited by Michael Cohen and published by the Conservative Movement’s Rabbinical Assembly) says in its subsection on Kol Nidrei in the “Holy Days and Holidays” chapter:

It is ironic that this incredibly emotional and moving service is based on something as banal as the technical procedure for undoing rash oaths, but history and custom somehow come together to infuse the liturgy with a sense of holiness and spirituality that is almost without parallel. […] It is essential to note– and this is emphasized in all reputable High Holiday prayerbooks– that the only vows that Kol Nidrei has the power to annul are those between an individual and God. Kol Nidrei does not, nor did it ever, refer to vows, promises, or commitments made to other people. These binding agreements can only be nullified by a mutual agreement between the parties themselves.

What does all of this mean for Maglor’s oath?

There’s a chance the Fëanorian oath was null and void the instant Eärendil took the Silmaril into space… but The Silmarillion says that Maglor and Maedhros still had to retrieve the other two Silmarils, so it seems their oath was still in effect, at least in part. It is possible to argue that Eärendil’s Silmaril was removed from the oath given that their response to seeing it in the sky was happiness and not anything else.

Kol Nidrei, regardless of its origins and the halakhic controversy, does not apply due to the timeframe constraints: Maglor did not make his oath in the past year (no matter what past year it was when Maglor converted) nor will he be making it in the coming year.

It seems Maglor’s only Jewish option for full nullification of his oath would be to follow the rabbinic procedure outlined in the Talmud.

Chapter End Notes

1. Entering the High Holy Days by Rabbi Reuven Hammer, Chapter 7 “The Yom Kippur Liturgy I: Kol Nidrei,” The Text of Kol Nidre (Back to text)
2. Sefari’s Shulchan Aruch Yoreh De’ah 228:1 (Back to text)
3. You can see a picture of these incantation bowls on my Tumblr. (Back to text)
4. Geonim are religious leaders of the Jewish Babylonian community. The singular is gaon. (Back to text)
5. Early rabbinic sages in the land of Israel, from about 200 BCE to 200 CE. (Back to text)
6. I do recommend reading this book if you’re interested in Kol Nidrei in and of itself; the most recent edition is from 1994. Unless you buy a used copy, it’s likely you’ll have to order it through Interlibrary Loan. (Back to text)
7. One of the sages of the Talmud in the fourth century CE. (Back to text)
8. One of the greatest Jewish scholars; he lived in Egypt in the 1100s. (Back to text)
9. Rabbi Meir of Rothenberg; a German Talmud scholar in the 1200s. (Back to text)
10. A French Talmud scholar in the 1100s; grandson of Rashi (another of the greatest Jewish scholars). (Back to text)
11. A German Talmud scholar who studied under Rabbi Meir. (Back to text)
12. A Babylonian Talmud sage in the fourth century CE. (Back to text)

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