The Bialystoker Controversy

The following column was in The Jewish Press over a month ago and started quite a controversy. I will reproduce portions of the column, with my comments interpersed.

The Jewish Press
Friday, February 6, 2004

Halachic Questions
Rabbi J. Simcha Cohen

Carrying A Child On The Sabbath

       Question: What is one to do on the Sabbath, in an area not covered by an eruv, when a child who is already in a thoroughfare simply refuses to walk?

       Response: Not too long ago I was on the Lower East Side on Shabbat in order to deliver the opening monthly Friday evening lecture at the Bialystoker Synagogue. As I was walking home the next morning after prayer services, I witnessed the following scene.
       A young child was sitting on the sidewalk, crying. Standing next to him was his mother, who was pleading with him to get up and start walking home. The area has no official eruv sanctioned by the local rabbinate that would permit carrying on the Sabbath. Therefore the mother, who was obviously religious, simply would not pick up the child and carry him home. The child ignored his mother’s words and continued to cry. The mother, looking somewhat embarrassed, merely stood next to the child, constantly pleading that he stop crying and begin to walk home with her. Was there another option available for the parent?…
       My grandfather, a renowned halachic scholar who authored Minchat Shabbat, pointed out that in Europe many parents carried their children in the street on the Sabbath even when there was no eruv. He noted the following in defense of their behavior (lelammed zechut):

I just want to point out that an halakhic scholar who is really renowned does not need to be introduced as such. It is only because almost none of the readers have ever heard of his father that R. Cohen has to introduce him to us. The term "renowned" is, essentially, self-contradictory.

       The Peri Megadim rules that on Shabbat a shevut di’shevut bi’mekom mitzva is permissible. This means that if an action is potentially forbidden on the Sabbath only because of the combination of two distinct rabbinic ordinances, and the action is performed for the sake of a mitzva, it is permissible. It is well known that carrying a child who is able to walk is prohibited only by rabbinic decree, since chai nosei et atzmo - a living being, especially a human being, carries itself. It is not a Biblical transgression.

He could have stopped here and said that a child until the age of nine or ten has a status of a holeh she-ein bo sakanah (a non-critical sick person - see Shulhan Arukh, Orah Hayim 276:1, 328:17; Shemirat Shabbat Ke-Hilkhatah, ch. 37 par. 2 vol. 1 p. 495) and, if such a child is hysterical one may violate a rabbinic prohibition on his behalf. Since, if a child can walk on his own the prohibition to carry him is only of rabbinic origin, and if a child is hysterical he has a status of a holeh she-ein bo sakanah for whom one may violate a rabbinic prohibition, it follows that one may carry such a hysterical child. There is no need for further lenient factors, the kind that get you into trouble with the local rabbinic authorities. But R. J. Simcha Cohen did not stop here.

       In addition, the majority of halachic scholars maintain that our streets are not a "Biblical thoroughfare" (reshut harabbim de’oraita). Out streets are designated as a karmelit, which means that carrying therein is prohibited only by rabbinic law. Thus, carrying a child in our streets on the Sabbath is prohibited only if we combine both rabbinic bans. Therefore, rules the Peri Megadim, it is permissible if done for the sake of a mitzva. (See Orach Chayyim, Mishbetzot Zahav 325:1.)... The conclusion of the Minchat Shabbat is that such a legal loophole should not be advocated as a lechat’chila (at the outset) ruling but can serve as a rationale for withholding criticism of those who are lenient and carry children in public on the Sabbath in communities without an eruv (Minchat Shabbat 82:28).

Pay close attention because here is where the trouble starts.

       There is another consideration of importance. Many years ago HaRavh HaGaon R. Menachem Kasher rules that one may carry on the Sabbath thoughout the entire island of Manhattan. At that time the Aggudat HaRabbonim and many Roshei Yeshiva disagreed with Rav Kasher. In recent years the Manhattan Eruv was revised (tikkunim were made) and it is checked weekly for the Sabbath. On the Upper East Side of Manhattan, for example, the congregant of all major Orthodox synagogues openly carry on the Sabbath and rely on the eruv - with the sanction of their rabbis. Of interest is the fact that this same eruv extends to and includes the area of the Lower East Side of Manhattan. Now if the Minchat Shabbat ruled that one may not object to parents carrying children in areas without an eruv altogether, one certainly should not criticize those who carry children on the Lower East Side of Manhattan, which is part of the Manhattan Eruv, despite the fact that local rabbis have not formally sanctioned carrying in the area.

R. J. Simcha Cohen just committed a big no-no. It is one thing to suggest that an eruv in Manhattan of Brooklyn is valid despite the strident opposition to them of R. Moshe Feinstein, R. Aharon Kotler and many other great scholars. To take such a position is valid, although gutsy (because of the great scholars opposing you) and politically dangerous. You are guaranteed to be called all sorts of names by going against the "accepted" position in this very touch subject. But R. Cohen went one step further. He suggested to people in the Lower East Side that the eruv might serve some purpose to them. Of course, the Lower East Side was the home of R. Moshe Feinstein and his rulings are followed very closely by its rabbis and residents. Just like the residents of R. Yossi Ha-Gelili’s hometown followed his rulings and no one has the right to tell them not to, the residents of the Lower East Side are bound to the rulings of their local posek, none other than R. Moshe Feinstein (who need not be called renowned because he really is). R. Cohen could have made his overly stringent (in my opinion) point without mentioning the eruv and would not have been criticized. But implying that the eruv exists for residents bound to R. Moshe Feinstein’s rulings is simply inappropriate.

Furthermore, R. Cohen was a guest of the Bialystoker Synagogue and really has no business making rulings for the attendees of that synagogue or any other synagogue that has a rabbi. Let local rabbis rule for their congregants, as I am sure R. Cohen would have requested of any visiting scholar when he had his own pulpit.

Soon to come... the reaction of the rabbi of the Bialystoker Synagogue and other local residents.