Wednesday, June 29, 2016

Part 1: Rebuttal of Hagaon Rav Yosef Heller Shlita’s, Two Shiurim on Eruvin

After reading a transcription of the Rosh HaKollel, Hagaon Rav Yosef Heller shlita’s, two shiurim opposing an eruv in Crown Heights, I feel that there is a need to clarify the many misconceptions mentioned in the shiurim. I will only address pertinent points, and I will omit the rest of the transcription.
It is unfortunate that the initial assumption in Chabad is that an eruv is proscribed. This conjecture is so entrenched that some are willing to go to great lengths and pile on layer upon layer of assertions in opposition to an eruv even if these arguments were never Chabad issues. The assertion that Brooklyn is classified as a reshus harabbim according to the Alter Rebbe is baseless and is being used to convince the gullible public to inveigh against an eruv.
I reiterate, the purpose of this rebuttal is not to judge the efficacy of an eruv for Crown Heights but only to prove beyond a shadow of a doubt that Crown Heights would not be classified as a reshus harabbim according to the Alter Rebbe.
The following are notes from a shiur on the Crown Heights eruv delivered on Sunday, 13 Sivan, from a talk in Kollel by Harav Heller Shlita, transcribed and edited by Rabbi M. Greenberg
The argument: Eruv is a concept in Torah and halacha, and one who does not hold of the concept of eruv is an apikoros. There is no such thing as “not holding of eruv.” However, you can say you don’t hold of “this” eruv.
The rebuttal: I am sure Rav Heller made this important point because he realizes that with all the rancor against an eruv in Crown Heights people are bound to say things that smack of apikorsus.  In fact, many people in Crown Heights have been saying things that appear to be rooted in apikorsus, such as, “Chabad does not hold of eruvin,” c”v.
The argument: I once asked R. Sholomo Miller about the eruv he built in Toronto and he told me it is one of the best eruvin in America, yet Bnei Torah shouldn’t use it. With “bnei Torah” he meant those who are mehader b’mitzvos. He built the eruv, yet it was clear to him that someone who is mehader b’mitzvos shouldn’t use it.
The rebuttal: Hagaon Rav Sholomo Miller shlita reestablished an eruv in Toronto and most people rely on this eruv including almost all Chasiddim. However, this eruv is in conflict with Rav Miller’s rebbe, Rav Aharon Kotler zt”l shitos in eruvin; therefore, he suggests that Bnei Torah should not make use of the eruv. Rav Aharon’s arguments include that the criterion of mefulash u’mechuvanim, even as it applies to mavaos hamefulashim, is conditional of a walled city, and that we pasken asu rabbim umevatlei mechitzta. The Tzemach Tzedek clearly maintains that in order to classify mavaos hamefulashim as a reshus harabbim, they would need to be mefulash u’mechavanim m’shar l’shaar even in an unwalled city (Chidushim, Eruvin 5:6). Furthermore, the Alter Rebbe maintains that we pasken lo asu rabbim umevatlei mechitzta (363:42; 364:4, and Kuntres Achron, 345:2). These positions are clearly in conflict with Rav Aharon’s shitos in eruvin. Therefore, Rav Miller’s stringencies are not pertinent to the issue whether or not we classify Brooklyn as a reshus harabbim according to Chabad.
The argument: You can’t make an eruv in crown Heights. Crown Heights is unlike Borough Park where there is a machlokes if one can make an eruv or not. Great rabbonim made the eruv there and say you could use it, while other great rabbonim say that an eruv cannot be made there. It was always the subject of a machlokes.
The rebuttal: As an aside, I have seen people cite the Igros Moshe, O.C. 4:86 as proof that an eruv cannot be erected if the rabbanim are not all in agreement. They are incorrect, for Rav Moshe Feinstein zt”l’s concern was not the consensus of other rabbanim but the halachah as he saw it.  A case in point: Had the position of other rabbanim been a consideration, Rav Moshe would not have allowed the Manhattan rabbanim to establish an eruv (ibid., 4:89 and HaPardes, 33rd year, vol. 9), even though he maintained otherwise, and he undoubtedly knew that there were rabbanim other than himself who were also against the establishment of an eruv (see Kuntres Tikkun Eruvin Manhattan, pp. 168-169). Moreover, even regarding the Flatbush eruv, we see from Rav Moshe’s teshuvah (Igros Moshe, O.C. 4:87) that he did not advise the rabbanim who erected the eruv that the issue of consensus would negate the establishment of an eruv there.
The following notes are from the subsequent shiur on the Crown Heights eruv delivered on Thursday, 17 Sivan, from a talk in Kollel by Harav Heller Shlita, transcribed and edited by Rabbi M. Greenberg
The argument: In order to make statements about Hilchos Shabbos you must know hilchos shabbos. R. Moshe Feinstein and R. Zalman Shimon Dvorkin knew hilchos Shabbos and they both said it is impossible to make an eruv in big-city neighborhoods such as Crown Heights.
The rebuttal: Let’s start from the beginning.  Rav Dvorkin zt”l signed a kol korei of the Agudas Harbbanim without penning a teshuvah on the matter. This kol korei is similar to the spurious anti-eruv 1979 Flatbush kol korei which supposedly most rabbanim signed on. The original Flatbush kol korei stated clearly that the anti-eruv 1962 Manhattan kol korei included an issur on the entire New York City and all large cities in America, which is definitely an invention of the Flatbush kol korei. The Manhattan kol korei is extant, and it clearly only refers to a Manhattan issur and not the entire New York City or any other large city in America. On the kol korei which Rav Dvorkin signed, they also made a comprehensive declaration that the issur on Manhattan included all large cities. In truth, this broader assertion is an invention of this kol korei.
Not only were eruvin established in many large cities across America, Rav Moshe obviously did not agree that the issur included all large cities. Rav Moshe allowed an eruv even after he signed the Manhattan kol korei for Detroit, Michigan, and moreover, he allowed an eruv for Kew Garden Hill, Queens. Even more so, when the rabbanim in Flatbush wanted to establish an eruv they asked Rav Moshe about the matter. Not only did Rav Moshe not declare that it was prohibited to construct an eruv in any large city (as the Flatbush kol korei claims that it was already proscribed in the 1962 Manhattan kol korei), he did not even recommend that they not erect an eruv there.[1]
Clearly Rav Moshe did not consider the Manhattan kol korei a hindrance to erecting an eruv in Brooklyn or in any large city. Moreover, there is no doubt that Rav Moshe did not sign any kol korei opposing an eruv in Brooklyn. Rav Moshe’s signatures on all of these kol korei’s are simple forgeries (see The 1979 Flatbush Kol Korei Exposed; Part 2: The 1979 Flatbush Kol Korei Exposed, and The 1981 Boro Park Kol Korei Exposed). Consequently, every kol korei that has been issued by the Agdas Harabbanim especially regarding eruvin should be discounted (besides for the Manhattan kol korei [2]).
Furthermore, it does not seem like Rav Moshe gave much credence even to the Manhattan kol korei. Rav Moshe wrote a letter to Rav Shalom Yehuda Berman of the Lincoln Square Synagogue on 7 Teves 5745/December 31, 1984 and declared that even in Manhattan ― where he signed the kol korei opposing the eruv ― Rav Shimon Eider zt”l does not need to follow his opinion and can establish an eruv. Apparently, Rav Moshe did not even consider the Manhattan kol korei a limitation on the ability for others to establish an eruv in Manhattan. 
Therefore, since these kol koreis do not inspire much credibility and are more hyperbolic then factual, even if Rav Dvorkin signed onto this kol korei, it does not mean that its words are etched in stone and are obligatory.



[1] The above debases Rav Michel Zalman Shurkin’s writings that have been bandied about lately in Crown Heights. Rav Shurkin claims that when some “modern rabbanim” of Flatbush wanted to establish an eruv, Rav Moshe changed the language of the kol korei from שכל מי שמוציא בשבת ע"י העירוב הזה הרי הוא 'כ'מחלל שבת בפרהסיא to הרי הוא מחלל שבת בפרהסיא. In fact, as I mentioned above, Rav Moshe wrote (Igros Moshe, O.C. 4:87) that these Flatbush rabbanim came to him prior to establishing the eruv yet Rav Moshe was not mocheh, and moreover, never issued a p’sak din barur. So who are we to believe ¾ Rav Shurkin’s writing or Rav Moshe’s own writing on the matter? Furthermore, these rabbanim from Flatbush were no more modern than Rav Shurkin himself; some of them were also talmidim of Rav YB Soloveichik. Rav Chaim Zev Bomzer. also a talmid of Rav YB Soloveichik and who was involved with the Flatbush eruv, stated that when he asked his rebbe if he could be involved with the eruv Rav Soloveichik answered that Rav Bomzer is a rav and has a right to pasken as he sees fit. Rav Bomzer then asked his rebbe about his opposition to the eruv in Massachusetts to which Rav Soloveichik answered that Brookline is not Brooklyn.
[2] Regarding the Manhattan kol korei, Rav Moshe wrote that he signed mainly because of Rav Aharon Kotler (Igros Moshe, O.C. 4:86 and Addendum to O.C. 4:89). It is of interest to note that in the end Rav Moshe did not seem too proud of the Manhattan kol korei’s language since he omitted its last line in his teshuvah (ibid.).

Tuesday, June 21, 2016

Part 7 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

In summation: 1) Brooklyn would not be classified as a reshus harabbim since there is no street where 600,000 people traverse any section of it on a daily basis.
2) Even if one does not agree that the criterion of shishim ribo is conditional of a street, no part of Brooklyn would be classified as a reshus harabbim since there is no street that is mefulash u’mechuvan on one side to a platya and on the other side to a sratya.
3) Even if one would argue that the criterion of mefulash is only conditional of a walled city and that the criterion of shishim ribo is conditional of a city, nevertheless, the entire borough would be classified as a reshus hayachid me’d’Oraysa since the streets are encompassed (on four sides) by mechitzos habbatim, and, moreover, the borough is bounded on three of its sides by mechitzos which are omed merubeh al haparutz.  
Furthermore, even if one would allege that according to some poskim the above criteria would not remove from Brooklyn the classification of a reshus harabbim,[14] nevertheless, they would have to agree that each issue is still at the very minimum a safek. Consequentially, we are dealing with a sfek sfek sfeika, and we would therefore go l’kula even if the matter was a d’Oraysa.[15] How much more so, according to the Alter Rebbe, once a tzuras hapesach was established the issue would not be a matter of a d’Oraysa only of a d’rabbanan.



It is important to note that the Alter Rebbe maintains (362:19) that one should be stringent and follow the Rambam who considers a tzuras hapesach a valid mechitzah only when utilizing at the minimum two mechitzos which are omed merubeh al haparutz (Shulchan Aruch, O.C. 362:10). Where this is not the case, each pole can be no more than ten amos apart from the other. However, since the proximity of property lots in Brooklyn is such that they are omed merubeh al haparutz particularly the fences that surround the property lots any eruv in Brooklyn would be classified as a Rambam eruv. Additionally, since Brooklyn is bounded on three of its sides by mechitzos which are omed merubeh al haparutz, consequently, any eruv in Brooklyn would definitely be considered a Rambam eruv.




[14]  Of course, it is always possible to cite shitos yachidos to argue that an area is classified as a reshus harabbim; however, ruling according to shitos yachidos is not the correct approach in halachah. [The Chasam Sofer writes (Y.D. 37) that if we were to collect all the shitos ha’ossrim we would not be able to eat bread or drink water.] Even more so, in hilchos reshuyos and eruvin, since all criteria have to be met for the area to be classified as a reshus harabbim, even if we were to employ a shitas yachid regarding reshus harabbim that would then disqualify the eruv based on only one criterion, the other conditions would not be met and an eruv would be permissible l’chatchilah. Consequently, to invalidate an eruv, one would have to selectively choose from disparate shitos yachidos which in many cases are contradictory and that is an unjustifiable approach to halachah. The reality is that if someone learns hilchos reshuyos and eruvin with an open mind, he would realize that since it is almost impossible to meet all the criteria of a reshus harabbim, creating an eruv l’chatchilah is a real possibility.
[15]  The Tzemach Tzedek states (Eruvin, 5:6) that since shitas Rashi was not accepted by most of the Rishonim and most poskim do not agree that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid, a yorei shomayim should not employ these criteria. However, as I mentioned previously, the Rebbe assumed that we do rely on the criterion of shishim ribo l’chatchila. Moreover, today we know of additional Rishonim and that most Achronim maintain that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid. Consequently, there is no reason not to enact these criteria as a sfek sfeka.
       Furthermore, the Tzemach Tzedek would classify Brooklyn as a reshus hayachid because the streets are not mefulash u’mechavanim on one side to a sratya and on the other side to a platya. Moreover, even if one would argue that the Tzemach Tzedek would categorize our streets as sratyas and platyas, the fact that the borough is encompassed by mechitzos which are omed merubeh al haparutz would classify the city as walled and the Tzemach Tzedek would definitely require the streets to be mefulash u’mechavanim, as well.
Consequently, even if one would argue that these criteria are not applicable, they would have to admit that, at the minimum, the Tzemach Tzedek would accept that these issues are a sfek sfek sfeika, and thus, even a yorei shomayim can rely on the fact that Brooklyn would not be classified as a reshus harabbim.

Monday, June 20, 2016

Part 6 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: G) Conclusions that Apply with regard to Actual Practice
As explained, according to the rulings of the Alter Rebbe and the Tzemach Tzedek, a general eruv encompassing the community as a whole with a tzuras hapesach would not be valid. It is, however, possible to use a tzuras hapesach to make an eruv that encompasses areas deemed as a karmelis. Areas that are deemed public domains according to Scriptural Law could not, however, be included in such an eruv.
Which parts of the community would be deemed public domains? Let us return to the definition of a public domain given by the Alter Rebbe in sec. 345: 11:
What constitutes a public domain? Roads and marketplaces that are sixteen cubits by sixteen cubits in area, for the road in the camp of the Levites in the desert had these dimensions ....
Similarly, thoroughfares that run from town to town that are sixteen cubits wide and so too, lanes that are sixteen cubits wide that run from one road to another or from roads to thoroughfares that are sixteen cubits wide are deemed public domains in a complete sense.
He mentions four types of public domain:
a)      Roads -I.e., major arteries of human traffic. Eastern Parkway and Empire Blvd. would certainly be placed in this category.
b)      Marketplaces -Kingston Ave, Nostrand Ave, and Utica Avenue would certainly be placed in this category. After all, the Tzemach Tzedek (Chiddushim 33c) considered the town square of Lubavitch as being considered a marketplace -and therefore a public domain -even though the village was home to no more than a few hundred families.
c)      Thoroughfares that run from town to town -Highways of this nature are not found in our community.
d)      Lanes that are sixteen cubits wide that run from one road to another - Such lanes would not ordinarily be considered as public domains because, in and of themselves, they do not produce a large amount of human traffic. Nevertheless, because they are connected to major roads or marketplaces, it is likely that human traffic from the roads and marketplaces will spill over into them. Hence, they too are deemed public domains.
Most of the streets in the community, Brooklyn Ave, Albany Ave, President Str. Crown Str. Montgomery Str. Etc. would be placed in this category because they run either from Eastern Parkway to Empire Blvd. (from one road to another) or from Kingston to Utica or Nostrand (from one marketplace to another).
In which places could an eruv be constructed using a tzuras hapesach? In the alleys that run behind the homes in the streets between Union and Empire, for these alleyways are not places through which people at large pass.
The rebuttal: Going forward, it is important to keep in mind that the Alter Rebbe maintains that an area encircled with a tzuras hapesach is a reshus haychid me’d’Oraysa, and the obligation of delasos is only me’d’rabbanan. Since the issue is only me’d’rabbanan, we can be lenient [safek d’rabbanan l’kulla] and apply any additional heter to remove the requirement of delasos. This shita of the Alter Rebbe should in its own right have terminated this debate, but the writer of this article chose to be stringent in all matters regarding reshuyos.
To begin with, this entire argument is extraneous. If we maintain, as the writer would have us believe, that the criterion of shishim ribo is conditional of a city, every street in the entire borough would be classified as a reshus harabbim, and no part of the community (besides for some shared alleyways) would be deemed a karmelis. There would be no need to ascertain the classification of each and every road whether it is a reshus harabbim or not. [Nevertheless, even according to the writer, as we mentioned above, Brooklyn would not be classified as a rehsus harabbim since all the streets in Crown Heights, even Eastern Parkway, are not mefulash u’mechavanim on one side to a platya and on the other side to a sratya. Notwithstanding the argument that the criterion of mefulash u’mechavanim is conditional of a walled city, the parkway is halachically classified as walled since it is lined by mechitzos habattim and, moreover, our entire borough is encompassed by mechitzos; therefore, the borough is classified as a walled city.]  
We, however, maintain that shishim ribo is conditional of a street, and therefore we need to explore the categories of public domains, and how they apply to our roads today.
As discussed previously, the Alter Rebbe mentions four domains which, when they satisfy the criteria of a public domain are classified as a reshus harabbim: rechovos [marketplaces (or according to the Tzemach Tzedek town squares)], shvakim [(large) marketplaces], derachim shovrim b’hen m’ir l’ir [intercity roads], and mavaos hamefulashim [open-ended alleyways].
According to the Tzemach Tzedek (Shabbos, 6a), three of the four public domains [rechovos, shvakim, and derachim shovrim b’hen m’ir l’ir], are inherently a reshus harabbim, and in an unwalled city, they would not require the criterion of mefulash to be classified as a reshus harabbim.
Eastern Parkway and Empire Blvd. do not fulfil these three categories. As mentioned previously, they are definitely not a marketplace or an intercity road or a thoroughfare, such as a town square, which was meant for people of the entire city to congregate on. The Ravad writes (Kasev Shom, Eruvin 6a) that only roads which function primarily as sratyas [rechovos] and platyas [shvakim] are classified as such. The fact that at times some roads are used to sell wares or to go from city to city or to congregate on does not make it the roads’ primary function. Eastern Parkway’s primary function is a large local expressway and not an intercity road (it does not lead directly out of the city on either end). Additionally, the purpose of its flanking pedestrian malls is for local people to stroll and relax on, unlike a town square which functions as the gathering place of the entire city.
Kingston Ave, Nostrand Ave, and Utica Avenue, do not fulfil the category of a marketplace.  As mentioned above, we do not have shvakim, marketplaces today as all of our stores are indoors. Even if some streets are lined with stores, this does not halachically classify them as marketplaces. [Moreover, even if one were to argue that some of our roads are similar to the sratyas and platyas that the Tzemach Tzedek is referring to, since Brooklyn is encompassed by mechitzos on three of its sides, as all the streets in the borough eventually end at a mechitzah, the Tzemach Tzedek would definitely require the streets to be mefulash u’mechavanim, as well.]
Thus, the only domain that all thoroughfares in Crown Heights (even Eastern Parkway) would be halachically similar to is mavaos hamefulashim. Consequently, according to the Alter Rebbe all the roadways in the neighborhood would need to fulfil all criteria of a public domain to be classified as a reshus harabbim. These thoroughfares do not satisfy the criteria of shishim ribo since no street in Crown Heights has 600,000 people traversing (any section of) it daily. Additionally, since we do not have rechovos and shvakim in Crown Heights, the mavaos cannot possibly be mefulash u'mechavanim into any of them; therefore, there is no doubt that the Tzemach Tzedek would not classify any of the roads in the neighborhood as a reshus harabbim.
Moreover, and it is very telling that this issue was omitted from this entire translation,[13] that even if we were to include a road that meets all the requirements of a reshus harabbim, the fact that Brooklyn is encompassed on three of its sides by mechitzos, which are omed merubeh al haprutz [more than 50 percent of the length of each side must actually consist of a wall], the borough would nevertheless be classified as a reshus hayachid me’d’Oraysa according to the Alter Rebbe and the overwhelming majority of poskim (see Map of the Mechitzos Encircling Brooklyn 2).
The argument: As mentioned initially, the purpose of this treatise is not to judge whether or not it is desirable to make an eruv in Crown Heights, but rather to clarify whether making such an eruv is possible according to the halachic tradition of Chabad-Lubavitch.
The rebuttal: As I mentioned previously, the purpose of this rebuttal is not to judge the efficacy of an eruv for Crown Heights, but only to prove beyond a shadow of a doubt that Crown Heights would not be classified as a reshus harabbim according to the Alter Rebbe. Clearly, Rabbi Levine’s entire argument was based on preconceived ideas about large city eruvin, which he then shoehorned in the Alter Rebbe to fit. 



[13]   Rabbi Levine in fact claims in his thesis that Crown Heights is not included in these mechitzos. B’mechilos kvodo, he is simply incorrect, and it seems that he did not even bother to ascertain if the mechitzos encompass Crown Heights. Besides for the fact that we can make use of on four sides mechitzos habbatim (which according to the Alter Rebbe is definitely sufficient), there are mechitzos which are omed merubeh al haparutz that encompass the entire borough.  These mechitzos were ascertained by rabbanim in Boro Park including members of Rav Yechezkel Roth’s Bais Din.

Part 5 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: Moreover, there is one day a year, Labor Day that 600,000 people certainly pass through Eastern Parkway and its side streets. According to many authorities, that is sufficient to affect the street's status.
The rebuttal: “According to many authorities,” this is fascinating. The title of this treatise is, “Eruv in Crown Heights According to the Alter Rebbe,” thus, if the Alter Rebbe weighed in on the matter it is his opinion that concerns us here. In fact, the Alter Rebbe (following the Shulchan Aruch) maintains (345:11) that the criterion of shishim ribo is a daily requirement, and one day a year would not classify a street as a reshus harabbim.[12] Furthermore, it is doubtful that even on the day of the parade that 600,000 people actually traversed a particular section of the parkway.
[Besides for the criterion of shishim ribo, there are additional reasons, which we will discuss further on, why Eastern Parkway is not classified as a reshus harabbim, such as mefulas u’mechavanim and mechitzos.]
The argument: F) Must the Main Street be Straight and Run from One End of the City to the Other
The proponents of the thesis that it is the existence of a major thoroughfare that determines whether an area is deemed a public domain or not find an argument for leniency in our Sages' statement that for a street or a marketplace to be deemed a public domain, it must run straight from one end of the city to the other.
In his Shulchan Aruch  (sec. 345:11), the  Alter Rebbe addresses this issue, stating that marketplaces and major roads are deemed public domains "provided they are not roofed and they are not encompassed by a wall or even if they are encompassed by a wall but [the road] runs from gate to gate."
Thus, the leniency that a major road is considered a public domain only when it runs straight, from one end of the city to the other, applies on1y in a city with walls. If a city does not have walls, a road can be classified as a public domain even if it does not run from one end of the city to the other. This conclusion is also clearly stated by the Tzemach Tzedek (Chiddushim, pp. 33d-34a) who explains that since Lubavitch was unwalled, its main streets were considered public domains even though they did not run from one end of the village to the other.
The rebuttal: This entire argument is incorrect. The assertion that the criterion of mefulash u’mechavanim is conditional of a walled city is relatively a new one and one which most poskim would not have subscribed to (the cities that the following poskim applied the criterion of mefulash to were not walled: Bais Meir, 363:29, 364:2; Yehudah Yaleh, O.C. siman 54; Divrei Malkiel, 4:3; Rav Shlomo Dovid Kahane zt”l, Divrei Menachem, O.C. vol. 2, pp. 42-43). Therefore, to make use of the criterion of mefulash is not just some, “found argument for leniency,” that the writer would have us believe but only the suggestion of the Gedolie Haposkim.   
Additionally, the allegation that according to the Alter Rebbe the criterion of mefulash is conditional of a walled city is totally without merit. The Alter Rebbe (following the Shulchan Aruch) is referring to rechovos and shvakim [marketplaces] that are walled on two sides and not to a walled city. There is no difference between our city streets and rechovos and shvakim; they are both fronted by houses [which are mechitzos l'kol hadeios], and both would not be classified as a reshus harabbim if they are not mefulash u’mechavanim m’shaar l’shaar (in any case, the city is bounded by mechitzos as well, and, therefore, would be classified as a walled city).  
Regarding the Tzemach Tzedek, this is a gross misrepresentation of his understanding of mefulash. Only in regards to these main roads, sratyas [intercity roads or town squares] and platyas [marketplaces] in an unwalled city, does the Tzemach Tzedek posit that there is no requirement of the criterion of mefulash u’mechavanim. Conversely, the Tzemach Tzedek upholds that, even in an unwalled city, we require that a mavoi [open-ended alleyway] be mefulash u’mechuvan on one side to a platya and on the other side to a sratya.
We do not have marketplaces, in the Crown Heights vicinity. As the Bais Av (2:6:2) argues, our marketplaces are currently indoors, in a private domain, so they are not classified as the outdoor platyas that some assert are inherently a reshus harabbim. Additionally, with the introduction of highways we do not have intercity roads [sratyas] in our area. Furthermore, our roads do not serve as town squares. 
Consequently, since our streets can only be equivalent to mavaos hamefulashim (more about this later), even the Tzemach Tzedek would require that in order to be classified as a reshus harabbim they would need to be mefulash u’mechavanim on one side to a platya and on the other side to a sratya, and neither one of these domains are included in the neighborhood (our cities are not laid out with one central corridor a derech hamelech which connects the marketplaces and the intercity roads). Moreover, even if one were to argue that some of our roads are similar to the sratyas and platyas that the Tzemach Tzedek is referring to, since Brooklyn is encompassed by mechitzos on three of its sides, it is classified as a walled city [since all the streets in the borough eventually end at a mechitzah], and the Tzemach Tzedek would definitely require the streets to be mefulash u’mechavanim, as well.
Furthermore, even those poskim [Rav Moshe] who maintain that the criterion of mefulash u’mechavanim is only conditional of a walled city would have to admit that Brooklyn is halachically considered walled on three of its sides. In order to enter and exit the borough, one would need to traverse over a bridge or through a tunnel on at least one of its sides. Thus the bridge or tunnel would need to be continuously mefulash u’mechavanim and run straight through Brooklyn from end to end. However, all roads that lead to the bridges and tunnels in Brooklyn are not mefulash u’mechavanim, and, therefore, would not be classified as a reshus harabbim.




[12]  Most poskim agree that it is daily necessity: Zivchei Tezdek, siman 102; Aishel Avraham 345:3; Kinyan Torah, 4:40:7, and Igros Moshe, O.C. 1:139:5, 4:87-88, 5:28:16. However, some maintain that it would be sufficient to classify the street as a reshus harabbim if shishim ribo would traverse the road many/most days of the year: Maharsham, 3:188; Minchas Elazar, 3:4, and Minchas Yitzchok, 8:32:1. No poskim uphold that once a year would suffice.

Sunday, June 19, 2016

Part 4 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: E) Why the Arguments Supporting the Boro Park Eruv Would Not Apply in Crown Heights
The exponents of the Boro Park eruv base their argument on the thesis that the question of whether or not an eruv can be established does not depend on the number of inhabitants of the city as a whole, but on the number of people who pass on a city's main street and the other roads leading into it. Their rationale is that the cities of the Talmudic era consisted of one main thoroughfare with side streets leading into it. This was its public domain. Thus, they contend, if 600,000 people do not pass through the main street of a neighborhood and its side streets on one day, that neighborhood is not considered a public domain.
As mentioned, according to the Alter Rebbe, the emphasis is on the city as a whole, not on its main street. However, even according to the other approach, there is a fundamental difference between Crown Heights and other neighborhoods. Eastern Parkway is a major thoroughfare with many other streets leading into it. Besides all the people who live in the neighborhoods surrounding it, many commuters on public transport use it and a large number of cars pass through. Hence, it is quite likely that 600,000 people pass through it and its side streets on an ordinary day.
The rebuttal: As I mentioned previously, no one of stature argues that shishim ribo is conditional of the population of the city. This is a modern day argument. The Alter Rebbe certainly does not understand the criterion as such either. It is simply untrue that there is a difference between Crown Heights and Boro Park.   The same argument which is being made about Eastern Parkway was made about Ocean Parkway, and most rabbanim allow an eruv that would include Ocean Parkway. 
The writer declares, without any substantiation, that those who uphold that the criterion of shishim ribo is conditional of a street, would include those people traversing the side streets leading into the thoroughfare in the tally.[8] In fact, this entire argument is specious. Roads that bisect main thoroughfares would not be included in the count of those traversing the main roadway; we only judge the volume of people traversing each section and not the entire length of the roadway in order to calculate the total (see Bais Ephraim, siman 26 p. 47; Yeshuos Malko, siman 27; Bais Shearim, the end of siman 132, and Minchas Yitzchak, 8:32). It is illogical to include the entire length of a thoroughfare in one aggregate. Those entering along one section of the roadway are only traversing that particular section and are independent of those traveling along the roadway at a different point.    
Furthermore, as mentioned above, Rav Moshe admitted that the simple reading of the Shulchan Aruch (shishim ribo ovrim bo b’chol yom) is that the criterion of shishim ribo is conditional of the street and of the myriads traversing that particular section of the road on a daily basis (Igros Moshe, O.C. 1:139:5, 4:87). Therefore, Rav Moshe posited that in order to classify a intercity road (which the writer argues Eastern Parkway is) as a reshus harabbim, according to the Shulchan Aruch 600,000 people would need to traverse a particular section of the road on a daily basis (ibid., 5:28:16).  Accordingly, we would not include vehicles or individuals entering the roadway at different points in the total count as they are each traveling along different segments of the roadway.
Finally, the Bais Av weighed in on this matter, as well. In the same teshuvah and seif that the Rebbe quoted, the Bais Av (2:5:3) clearly states that the requirement of the criterion of shishim ribo is that the 600,000 people gather in one place. No doubt the Bais Av maintains that only those people traversing a particular section of a road are included in the tally.
Consequentially, since no section of Eastern Parkway includes shishim ribo traversing it, we would not classify the parkway as a reshus harabbim
Additionally, most poskim maintain[9] that the occupants of a vehicle are not tallied in the shishim ribo. See note [10] below concerning the Alter Rebbe’s opinion in regards to the occupants of vehicles. Therefore, there is no doubt that there is nowhere near shishim ribo traversing the parkway.  
In any case, even according to the writer, you would think that since he declared that, “it is quite likely that 600,000 people pass through Eastern Parkway on an ordinary day,” he would have done some research and perused the city’s statistics to ascertain if it is even a remote possibility. However, it does not seem like the writer did any investigating since he did not offer any figures to go with his claim. Actually, even the suggestion itself is spurious for if we were to include the entire length of Eastern Parkway in one tally, it is not credible to claim, in a borough as vast as Brooklyn, that one out of every 4.3 people of the entire borough’s population (2,600,000) is traversing Eastern Parkway on any given day (even if we added the few hundred thousand people who come into the borough daily). In fact, the statistics corroborate that this is an incorrect suggestion (see note [11] below for the figures).




[8]  It is interesting that Rabbi Levine argues that the criterion of shishim ribo cannot be conditional of a street because it would be difficult for 600,000 people to traverse a sixteen amos wide street in a single day. Clearly Rabbi Levine understood that those who maintain that the criterion is conditional on a street require the myriads to traverse each section of the roadway. If Rabbi Levine would allow that the criterion includes those passing over any section along the entire length of the roadway and that we include the population of the streets leading into the main thoroughfare, his proof would be inconclusive since it would be much more of a probability for the collective count of a lengthy roadway to include 600,000 people traversing it on a daily basis (as they are actually claiming here regarding Eastern Parkway).
This begs the question of why, at this point, is Rabbi Levine arguing that, even according to those who posit that the criterion of shishim ribo is conditional of a street, Eastern Parkway is definitely a reshus harbbim because of the collective number of people from all the segments of the parkway, when previously he understood that we would only count each section separately.  This is the fallacy of the entire treatise; Rabbi Levine is so aggressive in labeling Crown Heights as a reshus harabbim that he lost track of what he wrote previously.
[9]   See the following poskim who maintain that the occupants of a vehicle are not tallied in the shishim ribo: Sheilas Yavetz, 1:7; Bais Ephraim, O.C. 26; Yeshuos Malko, siman 26-27; Tikkun Eruvin Krakow, 1:3; Maharsham, 1:162; Harei B’samim, 5:73; Bais Av, 2:9:3; Chavalim BaNe’imim, O.C. 3:14; Mahari Stief, siman 68; Divrei Yatziv, 2:172:13; V’yaan Yoseph, 1:155:1; Kuntres Tikkun Eruvin Manhattan, siman 12 p. 105; Kinyan Torah, 4:40:6, Tzitz Eliezer, as cited in The Contemporary Eruv, 2002 p. 54 note 119.
The reason is either because a vehicle in itself is considered a reshus hayachid and therefore its occupants are not part of the total or because we only include pedestrians (holchei regel) who traverse the street in the tally. It’s important to note that the concept that only holchei regel create a reshus harabbim is already mentioned in the Rishonim (Or Zarua, Hilchos Erev Shabbos siman 4 and Rabbeinu Avraham ben HaRambam in Birchas Avraham, siman 15).
[10]  באמת גם לדברי השו"ע הרב (סימן שמ"ה סעיף י"ט), יל"פ מש"כ שאינו נח תשמיש הליכתו, שקאי על הספינה דמשו"ה לא הוי רה"ר, היינו כיון שאין יכולין לדרוס ברגל כ"א בספינות מפני המים, משו"ה לא הוי רה"ר, ומה שלא כתבו הטעם משום דספינות הוי רה"י, היינו משום דיש ספינות שאינו רה"י, וכמו שראינו בדברי השבלי הלקט (דף מ"ב) שכתב וז"ל: כתב הרב אביגדור כהן צדק דוגית שאינה גבוה מן המים עשרה טפחים אין מטלטלין בה, וכ"כ אח"כ וז"ל: ומצאתי בדברי הגאונים שאם המחוז יבש שאין הספינה יכולה להתקרב ביבשה וכו', מותר לירד בעברה הוא ביצת קטנה שהעברה הוא כגשר, והר"ר אביגדור כהן צדק כתב שאין ליכנס בדוגית קטנה עי"ש, הרי שהיה שכיח טובא ספינות כאלו, שאינם רה"י, ע"כ כתבו טעם דשייך על כל הספינות.

[11]  At the outset, it is important to note that the poskim maintain (Kuntres Tikkun Eruvin Manhattan, p. 108; Kinyan Torah, 4:40:7, and Rechovas Ha’ir, 23:2) that the same people traversing a road in both directions (even if we include in the tally those traveling in a vehicle) are only counted traveling in one direction.  Consequently, since the following statistics include many of the same people coming and going, the actual number of those passing through would be closer to half the number cited here. The approximate statistics quoted here are all culled from the US Census and the average daily weekday MTA and city and state DOT statistics.
The parkway has at the most 43,000 vehicles [with an average of 1.5 occupants per vehicle] traversing it daily in both directions. If we tally the average daily vehicular traffic of all of the parkways intersecting roads, it would be approximately 200,000 vehicles traversing it daily in both directions (some of these vehicles actually turn on to the parkway and were already included with those passing over the parkway itself). Roughly 25,000 people live along the length of the parkway (and many of them were already included in the subway, buses and vehicular totals). If we add those entering and exiting the subway stations along the length of the parkway, it would be approximately 40,000 people. Regarding buses, it is difficult to figure how many people are actually passing over the parkway itself since the MTA’s ridership statistics include the buses’ entire run. The tally on the entire length of the many bus routes that traverse all of the bisecting roads of the parkway, is roughly 150,000 people riding the buses daily in both directions.
Consequently, a rational total for the parkway with all of its intersecting roads [by adding up the figures and including average occupancy and then dividing the total in half]  would be roughly 275,000 unique people daily, which is far from the requirement of 600,000 people passing over the road on a daily basis. Moreover, these are average weekday statistics. Shabbos and Sunday are not included, and in fact, the average tally is considerable less on these two days. Therefore, since according to the Alter Rebbe the criterion of shishim ribo is a daily requirement and on these two days of the week Eastern Parkway has far fewer people traversing it, the parkway would definitely not be classified as a reshus harabbim. Furthermore, as I mentioned above, the overwhelming majority of poskim maintain that we do not include in the tally those traveling in a vehicle; thus, the total is not even close to the prerequisite of 600,000 people traversing the road on a daily basis.
However, this is all an exercise in futility, since only those traversing a particular section of the road are included in the tally. Moreover, even if the parkway meets the criterion of shishim ribo, there are additional criteria of a reshus harabbim [mefulash and mechitzos] which would render the parkway a reshus hayachid me’d’Oraysa