2006-06-22

A few comments on the Washington Heights eruv e-mails

NB: This has been a bit late in coming, but I figured I’d wrap it up and post it anyway. So, belatedly...

Posted previously: first e-mail; second e-mail

First a note: I don’t use the eruv, not because of any particular controversy regarding this eruv, but because Rav Ovadia Yosef (whose rulings I endeavor to follow) does not favor relying upon the יש אמרים against the סתם ruling of מרן הש’’ע:
איזה היא רשות הרבים, רחובות הרחבים ט’’ז אמה, ואינם מקורים, ויש אמרים שכל שאין ששים רבוא עברים בו בכל יום אינו רשות הרבים. (חאו’’ם סי’ שמא ס’ ז)
And it is a general principle that בכל מקוֹם שיש סתם ויש אמרים בש’’ע הלכה כסתם.
        The issue is much more complicated than this and I won’t go further into it (nor will I pretend to be competent to do so), but since Rav Ovadia’s position on eruvin has changed relatively recently, I will quote the summary of the ruling in which he announces this change (יביע אומר ח’ ט סי’ לג):
האריך הרחיב בדין רשות הרבים בזמן הזה לדעת הפוסקים הראשונים ולדעת מרן הש’’ע, ודין הוצאה לכתחלה לרה’’ר על סמך העירוב של צורת הפתח כפי שנוהגים פה עה’’ק ירושלים, והעלה שנוהגים היתר בדבר יש להם על מה שיסמיכו, ולפי דעת אחרונים רבים אף לדעת מרן יש להקל, וכן כתבו גאוני ירושלים שאין לנו דין הרבים בזמן הזה. ולפי זה העירוב של צורת הפתח מועיל לטלטל לכתחלה ברשות הרבים בזמן הזה, אלא החרדים לדבר ה’ ונמנעים מלטלטל ברה’’ר תבוא עליהם ברכה, אולם רשאים הם למסור למי שמטלטל מתפחת או טלית וסידור. ואפילו הוא בר מצוה, וגנח להם לישראל אם אינם נבינים בני נבינים הם.
One obviously needs to read the ruling itself in order to understand Rav Ovadia’s reasoning for this change in position. For myself, however, since in my present situation I find I have no pressing need to carry on Shabbat, I have decided not to begin relying on this new, more lenient ruling. Accordingly, I have not done any investigation of whether the eruv in Washington Heights would be of a sufficiently high standard that I could rely on it under to this ruling. Should a time come when I feel I must carry, e.g. when I have children and my wife (quite rightly) is not overjoyed at the prospect of being housebound one day a week for an extended period of time, I will revisit the matter.

Turning to the e-mails...
        The author of the e-mails relies throughout on a certain picture of how the halachic system functions which I believe is, if not actually erroneous, at least seriously questionable. According to this picture, there is a more or less determinate hierarchy of halachic authority, at the apex of which stand the “Greatest Torah Authorities”. While this picture was largely true some time ago, when the Sanhedrin and halachic court system were in existence, it does not obviously obtain today. Shortly after the Sanhedrin ceased to exist, there emerged divisions within those broadly committed to the halachic system over authority within it. In other words, halachically committed jews (both laymen and poskim) took divergent views over who were the preeminent halachic authorities and which were its authoritative traditions. This is old news, and I think it is safe to say that this trend has generally strengthened through to the present. One need only look to the dramatically different halachic traditions, methodologies and authorities embraced by ashkenazim, sephardim, and temanim — not to mention the countless divisions within these groups! — to see that there is not at present, and has not been for a very long time, a unified determinate hierarchy of halachic authority, nor is there any general rule by which one can determine which of these various hierarchies of halachic authority are legitimate or which is “right” — the basis for such a rule is part of what is in dispute.
        That being said, there are still various hierarchies and more serious questions are rightly escalated up one or another of those hierarchies. But this is still too simple a picture. A given rabbi or posek may lie below more than one hierachy: either because he has been educated by members of multiple hierarchies, or because those hierarchies are specialized around different areas of halacha. Leaving aside the former case as it is not particularly relevant here, the latter case is very common. Faced with a question about safrut or monetary matters or eruvin, for example, a rabbi is quite likely to escalate that question to a different rabbi than he would escalate a question about shabbat or kashrut. This sort of pattern is very common and rightly so: it reflects the differing degrees of expertise and competence had by various hierarchies of halachic authority.
        Given this, the picture assumed by the author of the e-mails appears to be simply false: it is not even roughly a determinate matter who are the “Greatest Torah Authorities” who are relevant to deciding any particular halachic question. Which authorities are relevant will depend on who is asking and what is the question. Consequently, citing some chosen list of “Greatest Torah Authorities” cannot support a general claim about whether one should or may hold by the Washington Heights eruv (though it would support a such a claim for someone who held by the rulings of one of those authorities).
        Now, were it the case that virtually all those who stand at the apex of the many hierarchies of halachic authority were to rule that the eruv is posul then one could make a general claim that eruv cannot be relied upon. But this is demonstrably not the case. Very few poskim have issued any ruling regarding the Washington Heights eruv. Wisely, the author of the e-mails limits himself to the claim that “the vast majority of the Very Greatest of the Generation's Torah Authorities have poskined ‘asur’” (italics mine). But even among the “Greatest Torah Authorities” cited by the author, most are either dead, and a fortiori have not ruled on the eruv, or have yet to issue any ruling. (While the reasoning and precedent of the rulings of dead poskim demand central consideration by today’s poskim, the very existence of their past rulings does [not] answer any present halachic question, nor does it inherently bind current poskim in their rulings: authority in halachic decision making is vested in current poskim (see R.H. 25b).) Rav Yosef D Soloveitchik, Rav Ahron Soloveitchik, Rav Moshe Feinstein, Rav Yaakov Kaminetsky, Rav Ahron Kotler, and Rav Gedaliah Schorr are all dead. (The author also lists Rav Chaim Bick, but I couldn’t find any information about him; perhaps he meant to list Rav Moshe Bick, but he too is dead.) The author also names (as an aside) “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]”, but I submit that the only candidate on this list for being among the “Very Greatest Torah Authorities” is Rav Schachter and only he is quoted by the author as having prohibited use of the eruv. Perhaps others have prohibited it as well, but even the author admits that “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”. The author’s central claim that “the vast majority of the Very Greatest of the Generation's Torah Authorities have poskined ‘asur’” is without support.
        Perhaps, however, the author was speaking loosely when (more than once) he made this claim; he does, after all, make a weaker claim as well:
...the vast majority of the Generation's Greatest Torah Authorities who HAVE poskined on the matter have asured it's use 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...
But this claim, even if true, is irrelevant. Certainly, when very few current poskim have ruled on some question, nothing follows halachically from the fact that other poskim have not got around to doing their jobs and issuing a psak, except that anyone holding by the rulings of any of these poskim is left hanging without a psak — that is a problem for these poskim and those who hold by their rulings, not for anyone else. Were many poskim to rule one way or the other, then the weight of their precedent would weigh upon any posek considering ruling otherwise, and even then he could still use his judgment and argumentation to rule otherwise. Of course, that is not the case here: few poskim have ruled, so the weight of precedent is very light. The mere fact — if it is a fact — that a majority of poskim (who have ruled) have ruled one way, does not have any any halachic bearing beyond that carried by the precedent of their various rulings.
        The author does make one point that is worth repeating: Whether any individual can hold by the eruv depends on how her posek (himself, or via some hierarchy of halachic authority) rules. Setting aside practical problems with carrying this out, the point is essentially correct. What the author neglects to mention, however, is that for many people (to the extent that they ask questions of a posek at all) their posek is simply the rabbi of the synagogue which they attend. For the many members of the ever growing community of young jews in Washington Heights (a community centered on Mt. Sinai), that means their posek is the rabbi of Mt. Sinai, Rabbi Schnaidman. (It strikes me as disrespectful to a long-standing rabbi in Washington Heights that the author of the e-mail did not even so much as mention him.) He is surely entitled as consider the question of an eruv in the area surrounding his community, and to consult a qualified halachic authority expert in eruvin regarding it. Rabbi Benzion Wozner is surely such an authority. Trusting that Rabbi Schnaidman and Rabbi Wozner acted with integrity and in good faith, this looks to be an example of the halachic process at work: a serious question was escalated up the a hierarchy of halachic authority to an expert competent to answer it. For those that are following the psak of Rabbi Schnaidman, as the rabbi of their synagogue, this is all that is required for them to use the eruv.
        There is good reason to think that even those who follow many other poskim will also be able to use the eruv. (They should consult their poskim before acting, of course.) Many people hold by eruvin in the communities in which they grew up, studied, or have lived previously. It is not obvious that the Washington Heights eruv is more problematic than the eruvin in mid-Manhattan or Chicago, for example. Although I am no expert, it seems quite possible that the Washington Heights eruv is built to a higher halachic standard than many of the major metropolitan eruvin already relied upon by many members of the community; if they legitimately rely upon those eruvin, then they should be able to rely on the eruv here as well.
        The bottom line: Based upon my reading of the e-mails, the author’s reasoning is not cogent, and they are not to be taken seriously.

5 Comments:

Blogger florence gale said...

This comment has been removed by a blog administrator.

22 June, 2006 04:06  
Blogger Steg (dos iz nit der šteg) said...

This comment has been removed by a blog administrator.

27 June, 2006 01:03  
Blogger Steg (dos iz nit der šteg) said...

thanks for responding to that email!

27 June, 2006 08:12  
Anonymous Robert said...

"(While the reasoning and precedent of the rulings of dead poskim demand central consideration by today’s poskim, the very existence of their past rulings does answer any present halachic question, nor does it inherently bind current poskim in their rulings: authority in halachic decision making is vested in current poskim (see R.H. 25b).)"

i think you mean does not answer any present halachic questions. if so, you are definitely correct in this case where the situation is not exactly the same as the situations those deceased poskim were dealing with.

03 July, 2006 01:53  
Blogger ginsbu said...

[I just realized that I did not reply to the last comment. I guess that's what happens when comments come in and I'm on vacation.]

First, Robert is correct: I meant to say "does not answer any present halachic questions". I have now corrected the text.

Second, I mean to say something stronger than what Robert subsequently attributes to me. Even where the situation is exactly the same, the very existence of their past rulings does answer any present halachic question: contemporary poskim are (subject to certain constraints) free to disagree with their predecessors even in that case and they do so very frequently. This is the significance of R.H. 25b, which I cited. Now, it is true that in general the Amoraim, for example, do not overrule the established conclusions of the Tanaim (similarly for members of later periods); but this is a feature of the accepted practice of members of later periods toward their predecessors, not an original feature of the halachic system. (See the Kesef Mishne to Hilchot Mamrim 2:1; this isn't the only way to understand the phenomenon, however)

19 July, 2006 01:23  

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