Thursday, June 01, 2006

Washington Heights Eruv - Article

I received the following article via email. There are many troubling parts in it, if not problematic ones. However, I won't be able to post on them until post-Shavuos. So please, print and read it, and after yom tov we can discuss it: (If this has been posted on other blogs, please let me know)

From Haedah Today . revisions May 28.

please delete all previous copies of this article

Editors note: The initial version of this article has been revised since the first one was misunderstood by a number of readers on account of a small numbero of people misunderstanding what was written. Most people took it for granted that the content is all true and obvious. We hope that this revised article, with its tortuously repetitive and redundant verbiage, will reduce readers' tendencies to mistake the meaning of this article.

"There is an eruv around Bennett Avenue".

That sentence contains a lot of presumptions, and one of those presumptions is that you and I can use it to carry on Shabbat.

But can we? That is the subject of this article, and the PERMISSIBILITY of using it will be explored. The purpose of this article is not to explain the halachos of eruvin, but rather our Mesorah's unanimously held of procedure for employing rabbinic authority to our lives in a relatively narrow type of situation which will be described below-- an example of this scenario is what we are faced with in regard to this Bennett eruv.

First a summary of the conclusion of the article, then we'll provide some background, then we'll elucidate the main point of the article further:

WE STATE what should be obvious, after careful consideration of the facts mentioned in the rest of this article as to what special situation exists with regard to this eruv on Bennett that would require special psak halacha to be allowed to use it. We all take it for granted that all agree that a non-gadol hador can pasken shailos. Indeed, that is the structure of psak. There are local poskim who do render their own decisions. Of course, we trust them since we expect them to apply the principles and precedents of the Greatest Torah Authorities in the world in the arena of rendering psakim - But the point of this article is that if the [ vast majority of ] the greatest authorities in the world were to contradict what we took to be a "pedestrian psak" [ a psak from a bone fide rav who poskins for his talmidim or congregants who however is not one of the Greatest Torah Authorities of the generation] then we would have to give it up [ the pedestrian psak ] and either

[1] ideally, go ask for a psak on the matter from our rebbe muvhok who is- through a rebbe- talmid/ posek- talmid relationship - one of the greatest Torah Authorities of the generation, as per the criteria explained below, and then go in accordance with their psak, whether the psak is 'asur' or 'mutar', whether the poseik is in the majority or in the minority OR

[2] we would need to default to the majority of the greatest Torah authorities of the generation who paskined stringently on the matter at hand [ e.g.for [2] the event that we happened not to have a rebbe muvhok, or we didn't have access to him for this shailah, or he indicates he cannot render a decision on this shailah and doesn't know to whom to direct us to for the shailah, etc....] [ the lomdus for why the above is the case is not the concern of this article. We advise anyone to simply go to any of the Greatest Torah Authorities for their particular lomdus as to why all of these authorities maintain this position.

This is the thrust of this article. Now for some background regarding the Torah Greats positions regarding an eruv covering a street in Manahttan. The majority of the Greatest Torah Authorities of this generation who have poskined on Manhattan Eruvs have said that its prohibited to use this type of Manahttan eruv [ all things considered].

Amongst these top authorities who prohibited its use are ....

Rav Yosef D Soloveitchik

Rav Ahron Soloveitchik

Rav Moshe Feinstein

Rav Yaakov Kaminetsky

Rav Ahron Kotler

Rav Chaim Bick

Rav Gedaliah Schorr

This is a question of an isur skilah { Torah Prohibition } according to the above [ though the precise lomdus behind the psakim of these individuals may differ ], and, according to others ( not the ones listed above ), it's a shailah of an isur malkos { Rabbinic Prohibition, on account of the construction }.

From an adam chashuv who is a rav currently living in NY comes this report as to what a number of talmidim of Rov Soloveitchik reported: A group of Manhattan rabbis came to meet with the Rov in the 1960's in his apartment in Washington Heights - on the YU campus. These rabbis came armed with a list of arguments formulated by Rabbi M. Kasher to demonstrate that Manhattan was not a reshus ha-rabbim d'Oraysa. Before the rabbis were able to finish their presentation to the Rov, the Rov stopped them and indicated that he could not accede to their point, commenting that it seemed like the rabbis felt that the eruv issue was of the same level as a question of one forgetting to recite Ya'aleh V'yavo on Rosh Chodesh. The Rov's intent was to indicate his surprise that these rabbis were willing to advocate leniency in a question of an issur chamur me'od - a very grave prohibition (Chillul Shabbos) - whereas in other matters of far less gravity, everyone is extremely careful. The Rov felt that this was inconsistent and very wrong.) And so as one person summed it up, RYDS's basically communicated that this is not a shailah of forgetting Ya'aleh V'yavo on Rosh Chodesh. This is a sofek s'kilah, and we cannot be maikil on it.

This very day, Rav Hershel Schachter, nor Rav Willig, nor Rav Bleich, nor Rav Genack, nor Rav Meyer Twersky, nor Rav Dovid Feinstein nor Rav Shmuel Kaminetsky, nor Rav Yisroel Belsky ( just to mention a number of prominent names ), none of them poskin for their talmidim, " go ahead and use it if you want to"; some of them actually asur its use.

We're being painstakingly explicit in saying that some do not " allow " its use; we're not saying they have all paskined that it is 'asur' to use the Bennett eruv. Some will not poskin on the issue. As of today, w e have yet to hear of any of the universally recognized "Greatest of the Living Torah Authorities" poskining " one may go ahead and use the Bennett Avenue Eruv". So far this is all just background information. [ of course there are Top authorities who teach their talmidim some of the serious considerations to this shailah and present permissive opinions regarding those considerations. But to hear these teachings are not enough to permit us to use the eruv. The question, " Why not? " will be explored instantly.]

Incidentally, and also not to the main point of this email, the following rabbis who live in Washington Heights or have communal Rabbinic positions of authority in Washington Heights who have been asked " May I use the eruv? " have not paskined to anyone " Yes, go and use it if you wish" [ regardless of whether they hold that this is not a reshus harabim and that the construction is perfect]: Rav Gelly, Rav Schachter, Rav Posen [ Poseik of KAJ ], Rav Kohn [ Dayan of B'D of KAJ], Rav Levy [ Rosh Kollel and Dayan of KAJ B'D], Rav Block [ Rav of W.H. Cong ], Rav Maybruck [ a Rav of Mount Sinai Shul ] , Rav Hoffman [ Rav of Shaarei Tikvah], Rav Reider and Rav Balsim [ Ravs of Reider Shul ], and Rav Goldberg [Rav of the Agudah Shul] [ forgive us if we are leaving anyone out].

Again, we are not saying that each of these rabbis asur it- we're only saying that they are not permitting [ as a psak ] the Bennett avenue eruv. [ unless private heterim have been handed out, which of course doesn't concern us since we didn't receive the heter].

Once again, due to the invective that some people who don't read closely have heaped upon us on account of a more succinctly written version of this article, we explicitly reiterate: We are not saying all of the above have asured it, rather that they are not issuing a psak permitting the eruv to their talmidim who ask them, " Would you poskin for me that I may use this eruv of bennett avenue? ".

One more point before we elaborate upon the main point of the article: Rav Herschel Schachter has orally told multiple people that he holds the Bennett Avenue eruv is posul [ as per a shailah of an isur derabbanan- unlike the at least 8 above who asured it on account of a shailah of an isur deorasia [ a shailah of an isur skilah ]. And Rav Schachter refers people to his written sefer B'Ikvei HaTzon in siman 13 for his reasons. That's an actual psak of " asur". [ A false rumor has spread that he permits use of the eruv and only personally holds a chumrah that causes him to not use it, but that he really allows this eruv. This rumor is a grotesque falsehood created by people who feel that they can " Psyche- out " a Poseik's inner position and give the impression on his behalf that permission exists where none exists. Others have actually posted on a web site that 'they' are unaware of his position on this Bennett Avenue eruv. As of May 28th this seems almost impossible, and we wonder why this pleading to ignorance has not been removed from the site. The fact is however, that Rav Hershel Schachter has not given permission for ANYONE to use this Bennet Avenue eruv and has poskined it is actually posul. Finished. Rav Schachter's non allowance of use of this eruv can be easily verified: call him up if you are one of his talmidei muvhok, or read his sefer.

As we've said in the beginning, the vast majority of the Greatest Living Torah Authorities who have paskened on this matter [ not theoretically but rather limaaesh ] and who could likely be the rebbe muvhok [ up the chain of " Rebbe muvhok to talmid relationship "] of various numbers of residents of the Heights continue to not paskin " Go ahead and use it if you want to". We don't know of one of the Greatest Living Torah Authorities who have paskened on this matter for their talmidim " Go ahead and use the eruv".

This is the background .

Where did this mantra come from that we're hearing from many people in the Heights and elsewhere that you and I can just use this eruv? Answer: The people spreading the idea do so on account of the fact that the Rav of a shul instructed a Rav Hamachshir, who makes many eruvim, to make an eruv surrounding Bennett Avenue- and it's inferred from this that the very fact of this allows us to use it. That is some people's assumed Torah justification for permitting us to use it.

So is that assumption at all valid? No. Of course it isn't. It isn't valid because the vast majority of the Generation's Greatest Torah Authorities who HAVE poskined on the matter have asured it's use [ mentioned above] and nearly all, or all of the rest, of the Greatest living authorities are not issuing psakim for their talmidim or congregants that one may use this Bennett Avenue eruv, for whatever the particular reasons of the rav in question are. So the fact that a rav hamachshir made an eruv doesn't give us the authorization to use it [ *** this of course doesn't imply that a rav hamachshir can't use an eruv, or that a rav who allowed a rav hamachshir to make the eruv can't use it- no such suggestion is being made. The opposite of course is taken for granted....that they are either from the Greatest of the Generation or surely went to their Rebbes/ Poskim who are from the Greatest of the Generation for clearance, and received a psak of " mutar".]

Before we go back to the main point of the article, let's mention that a few weeks after the use of the eruv began and some people started carrying on Bennett on Shabbat, one of the shul's in the community, the Mt. Sinai Shul, inserted this text in their FAQs section of their web site, which reads:

"...everyone is encouraged to decide whether to use any eruv based on a discussion with his or her personal posek....''

This statement is a communication by the writer of the web site that the permissibility or prohibition of using this eruv is not decided by the de facto construction of it by a rav hamachshir; but rather it's decided by one's poseik ( actually the wording on the web site could be read in a way that is misleading, though I am sure the writer didn't intend as such: Really, the halachic permissibility of using the eruv is not "based on a discussion with his or her personal posek..." but rather, based upon receipt of permission to use it BY one's poseik].

Back to the main point of this article: There is one possible situation whereby someone who isn't one of the Greatest Torah Authorities could use this eruv [ given all of the above background information]: namely, via the employment of a halachic policy and procedure that is unanimously held of by all of the Greatest Torah Authorities alive, which, depending on the outcome, could be employed to allow use of this eruv. This policy and procedure was mentioned above briefly, and will be described again below shortly. [ see Rav Hershel Schachter's " The Qualified Few" brought below ]:

Requirement # 1 - we ask our poseik whether we can use it [ the poseik we ask most of our questions to, our rebbe muvhok] and...

Requirement # 2a - if our poseik is one of the Greatest Authorities of the generation and he permits it, then we can use it even if he is a minority opinion, OR

2b - if our poseik is not one of the Greatest Torah Authorities of the generation but he himself has a rebbe muvhok who is one of the greatest Torah Authorities of the generation, as per the criteria explained below, and that Rav permits the eruv, then we can use the eruv.

[ *** if we found ourselves in a situation where the rabbi we go to for most of our questions actually ignores the majority of the Greatest Ones who render a psak of " asur" on an issue, and this Rabbi isn't one of the Greatest Ones of the generation himself, and he doesn't have a rebbe muvhok he goes to himself who is one of the Greatest who has poskined for him ] and he nonetheless simply poskins on his own, "mutar" in a shailah in this category then it seems like it's time to get ourselves a new rabbi. ]

There is no entitlement for us to simply choose to use it because we like the halachic rationale behind the eruv as we hear about it from other authorities, even a great one, who is in the minority, unless he is - or connected through - a "chain" back ot the one who is our rebbe muvhok.

Living up to the truth of course is our life's struggle and it's few people's place to render judgment on another person, we all agree- but this has nothing to do with this article.

Question- Now how do we know that this is the halachic policy and procedure we must follow for the specific category of shailah discussed above?

Answer- Because the answer can be determined empirically- it's the unanimously held halachic policy position of all of the Greatest Torah Authorities in the world--- and this can be verified by asking them..

Now we want to repeat [ ad nauseam ] what should be obvious with careful reading of the above as to what special category of circumstance it is to which these requirements apply, and to which set of general circumstances these comments don't apply: The above requirements takes it for granted that all agree that a NON-gadol hador can pasken shailos. Indeed, that is the structure of psak. There are local poskim who do render their own decisions. Of course, we trust them since we expect them to apply the principles [ sometimes precedents] of the Greatest Torah Authorities in the world in the arena of rendering psakim - But the point of this article is that IF the greatest authorities in the world were to contradict what we took to be a "pedestrian psak" [ a psak from a bone fide rav who however is not one of the greatest authorities of the generation] then we would have to give it up and go with our rebbe muvhok as per the criteria explained above in " Requirement 2a or 2b, or we would "default" to the majority psak of the greatest authorities of the generation who HAVE poskined stringently on this matter [ e.g. examples of when we would find ourselves in this situation may be in the event that we happened not to have a rebbe muvhok, or we are in a situation where we go to a few set rebbes for different types of shailos due to our comfort level with each, or we didn't have access to our rebbe for this shailah, or he indicates he cannot render a decision on this shailah and doesn't know whom to direct you to for the shailah, or he is ill etc....]

We found it quite astounding that while most people we speak to take the "above" as something totally obvious and known to all, there are nonetheless a number of people - quite a number of people- who do not. To some we have communicated with, this is the first time they have ever heard of anything like this, or they "kinda" heard something like this, but never knew how it really went.

Final Note:

Some irresponsible people are clamoring to others regarding rabbis in the community that don't permit the eruv, saying that ' the eruv issue on Bennett is all politics and has nothing to do with halacha and I therefore don't have to concern myself with these rabbis politics and can decide [ sic ] that they really permit its use [ meikur hadin ], and/or the above listed Great Torah Authorities who prohibited it are not relevant' . Also it's been passed around regarding some of these rabbis " They are lenient with some halachic positions on eruvin and not others and haven't explained themselves to us as to why they poskin the way they do, and so they are fraudulently communicating that this issue is a shailah of being machallel shabbes bifarhesiah , etc....[ hameivin yavin]"

The statements above infer that there are Rabbis who are poskining improperly on this issue because their positions are not based on halacha but because of 'politics' [ implying that values or halachos outside of isur/chiyuv, tamei tahor questions are not halachic and are thereby invalidated as matters of Torah by calling them "politics" ] - or that these rabbis are making mistakes or being hypocritical by saying the questions are questions of isurim when they really are not. A warning: to say such a thing, to impute ulterior motives to qualified rabbis when they make a particular halachic announcement, charging that the rav isn't being honest with the psak, doesn't truly hold by the psak, but is only using it as an excuse for other non Torah motives is an isur of Mach'chish Maggideha'. To cite Rav Hershel Schachter:

Did the Rabbi Distort the Psak? [excerpted]
by Rav Hershel Schachter

"Rav Soloveitchik zt"l pointed out on various occasions that when the Rambam speaks of the various heretics, he puts together the "one who denies the (Divine origin of the) Torah shebaal peh, and the one who contradicts its teachers ['Ma'ch'chish Maggideha'-blogger's note ]." One who imputes ulterior motives to the psakim (halachic decisions) of an honest bona-fide rabbi, and says that Rabbi X was a convert, so that's why he always favors converts, and Rabbi Y didn't like women, so that's why in his decisions he will always put down women, and Rabbi Z is a Zionist, so that's why he will always pasken lehokel in matters regarding Eretz Yisroel, is in violation of this Ikar (principle) of faith. We not only believe that there existed at one time a Torah shebaal peh which was Divinely ordained; but rather we believe that Hashem continues to assist the G-d fearing qualified rabbis so that they should pasken properly. Emmunas chachomim is the foundation of all Orthodox Tradition!"

another piece of Rav Hershel Schachter:


Rav Hershel Schachter on the Reliability of the Ba'alei HaMesorah /2004/moadim/rsch_shavuos.html
excerpted from "Why Was the Torah Forced Upon Us?"
Rav Hershel Schachter
[emphasis added]

[A]ccording to Talmudic tradition (Shabbos 88a), G-d pressured the Jewish people to accept the Torah, and forced it upon them against their wishes. The commentaries on the Talmud all wonder, why it was necessary to force the Torah upon the Jews if they had already enthusiastically expressed their willingness to accept it? The people were prepared to accept both G-d's written Torah, and all the halachos l'Moshe miSinai – transmitted directly from G-d. But the bulk of the Oral Torah is really [ ] halachos which were developed over the centuries with much rabbinic input. This the Jews at Har Sinai were not prepared to accept. This is a human Torah, and all humans can err. Why should they agree to be subservient to the idea of other human beings? And it was this part of the Torah that G-d had to force upon us. Whether we like it or not, G-d expects us to follow the positions set forth by the rabbis in interpreting the Torah. This is the significance of the expression we use (from the Rambam's formulation), that we believe (ani maamin) that the Torah as it is observed today, is an accurate transmission of that Divine Torah which was given to Moshe Rabbeinu. This added phrase, "as it is observed today", implies exactly this idea – to include all of those halachos where there was rabbinic input. We have "emunas chachomim". We believe that throughout all the generations there was an invisible Divine assistance given to the rabbis to develop the halacha in a correct fashion .
Of course, the application of those "middos" is a science unto itself, which is only mastered by a small handful of qualified individuals in each generation . And the new additional halachos that read "in between the lines" have to "fit in" with "the spirit" of the rest of the Torah, which again can only be fully sensed by those few qualified individuals who have a proper sense of what "the spirit of the law" is!"


from a shiur from RHS at this link called eilu v'eilu [ notes taken by Saul Mashbaum

"There is another aspect to eilu v'eilu – one may accept minority opinions of one's rebbe muvhak, and a community may continue its traditions and follow its rov even if other opinions reject their minhag or his psak."

In line with the above mentioned approach, the writer of this article assumes that the statement above of Rav Schachter agrees that if a sudden call from the vast majority of the Greatest Living Authorities of the Generation took a position of "isur" on a shailah, then the rov [ were he not one of the Greatest of the Generation ] would need to have to go to the authority he went to for shailos he couldn't answer [ e.g. his own rebbe muvhok who was from the Greatest of the Generation- entitled to an opinion on such matters given such a situation ] and ask him if they could maintain the present practice of the shul or would they need to change their position and go with the majority.

Finally, one more interesting quote from the RHS shiur:

" Rav Soloveitchik said several times, and wrote this as well, that it is not true that halacha
and hashkafa are to separate domains. Hashkafa is the halacha of the mind.
Just as there are things it is forbidden to do, so there are things it is forbidden to believe.
Eilu v'eilu applies to hashkafa as well, but there are boundaries, just as there are in



Scenario # 1: If Yankel's rebbe muvhok , Rabbi "X", was one of the Greatest Torah Authorities of the generation and did not consider Bennett a reshus harabim, and did not have any problem with the construction of the eruv, but had another problem, whatever it might be, let's say for example, the fact that one shul out of many decided to go along with constructing an eruv without the agreement of the others in town, and that issue caused Rabbi "X" to refuse to permit use of the eruv, then Yankel is not permitted to HALACHICALLY use the eruv.

Scenario # 2 The fact that one may look to the Rav Hamachshir as an expert on eruvim doesn't help us with the permissibility of OUR using the eruv since he isn't our sole poseik / rebbe muvhok, nor is he of perhaps any of the residents of Washington Heights. We therefore don't even need to go further into discussing his role in this eruv.

Scenario # 3 Someone suggested to me that Rav Ovadiah Yosef - surely one of the Greatest living Poskim of our generation- would allow this Bennett Ave. Eruv. First off, we have no idea if ROY would, bottom line, allow this eruv in every respect . But let's say he did! We still couldn't use it! Why? For the same reasons as stated above, namely, none of us has a rebbe muvhok who is connected by a "chain" , rebbe muvhok to rebbe muvhok back to ROY.[ I assume ]

Scenario # 4 And let's say Rabbi "X" is Yankel's rebbe muvhok, and is one of the Greatest Torah Authorities of the generation, and says privately that the eruv is probably mutar to use, but that he will not actually permit its use for reasons X, Y, and Z, one of them being that politically he doesn't want to cause further erosion of the status quo or some other reason, --- then Yankel can't HALACHICALLY use the eruv because he didn't get a psak to do so! Yankel can't choose which aspects of a psak he will accept and which aspects of a psak he will reject. It's kind of like saying that our rebbe would permit a certain kind of woman's tefillah group in terms of 17 siffim in the Shulchan Aruch, and only refuses to allow it on account of one remaining sif, so we are going to take part in a woman's tefillah group since we're not so keen on our rebbe's interpretation of that last remaining sif. That's not acceptable. That way of keeping mitzvos isn't part of our Mesorah according to any of the Great Torah Authorities in the world, and is simply a clever idea created by those who are not entitled to an opinion on the matter. [ see R H Schachter's article above]

[ What if a psak was privately given over with the condition that the name of the authority not be divulged. Well this would really put the public user of the eruv in a quagmire if asked, upon whose psak do you rely to use the eruv and he says " My rebbe wants me to keep it quiet " - after all, this is a public action. ]