Thursday, December 01, 2005

Part 3: A Critical Analysis of Rav Yisroel Hirsch’s Critique of Eruvin in Brooklyn

Continued from part II

Page 4 comment 7:
“The true nature of this work is now clearly exhibited. A sniff l’heter? We are dealing here with a s’fek d’oraysoh which is always l’chumrah! And not just any d’oraysoh, but one of chillul Shabbos! If this alone was the objection to the eruv it would be more than sufficient grounds for opposition! Note that although it is not here reveled, R’ Moshe Feinstein objected to all these points. For instance, the point that streets are made for cars and not people, and therefore are not a legal part of a רה"ר, is complete nonsense! Chance a guess at who in fact is driving these cars, Monkeys, baboons, orangutans – of course, people! Failure to disclose to the reader R’ Moshe’s opposition is an act of dishonesty.”

As stated in Eruvin in Brooklyn (p. 15) there are three primary reasons why Brooklyn is not a reshus harabbim. This sniff l’heter is only noted in a footnote and is not included in the three fundamental reasons to allow an eruv in Brooklyn. Therefore to say, “The true nature of this work is now clearly exhibited,” is extraneous to say the least. Additionally, this is the way most teshuvos are written; after the main points are expounded on the poskim will usually add that we can also include a sniff l’heter. Regarding the subject of who is driving the cars, Rav Hirsch is conflating two issues. This is what’s stated in the kuntres, “Since the streets are designated for cars, the streets and the sidewalks on either side of the street are not considered connected to form one continuous 16 amos (Tikvas Zechariah, p. 40; Divrei Yatziv, O.C. 2:172:13 see also Oim Ani Chomah, siman 63).” The kuntres is not referring to whether or not we include the occupants of the vehicles in the tally of shishim ribo only if streets and the sidewalks on either side are considered as one contiguous sixteen amos. Even regarding the subject of tallying the occupants of vehicles, what many don’t realize is that most poskim maintain that the occupants of cars would not be tallied in the shishim ribo (Bais Ephraim, O.C. 26; Maharsham, 1:162; Yeshuos Malko, siman 26-27; Harei B’samim, 5:73; Bais Av, 2:9:3; Mahari Stief, siman 68; Satmar Rav, Kuntres Meoz U’Mekedem p. 27; Divrei Yatziv, 2:172:13; V’yaan Yoseph, 1:155:1; Kuntres Tikkun Eruvin Manhattan, siman 12 p. 105; Kinyan Torah, 4:40:6, and Rabbi Eliezer Y. Waldenberg shlita, author of the Tzitz Eliezer, as cited in The Contemporary Eruv, 1998 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. This list is indicative of whom Rav Hirsch considers to be uttering, “complete nonsense.” The kuntres dedicates many pages to Rav Moshe’s shitos but definitely does not claim to quote all of them. Particularly when the kuntres is only using this issue as a snif it doesn’t have to quote others.

Page 4 comment 8-9:
“There is a fundamental distinction between a street that is itself covered, and a street that at random juncture is bisected above its air-space, creating a covered area. The former is not דומה לדמ"ד and would therefore be invalidated as a ר"הר דאורייתא. The latter, on the other hand, would not.”

Rav Hirsch is conflating mikorah [roofed] with mefulash [open]. For any part of a street to be classified as mikorah only the area that is roofed would be considered as such. Rav Moshe adds (Igros Moshe, O.C. 1:140) that a street, which is bisected by a roofed roadway even if it’s not along its entire length, it would not be classified as mefulash. [However, according to Rav Moshe, a roofed area does not divide the tally of shishim ribo into separate parts of less than shishim ribo (ibid., 5:28:20).]

Page 4 comment 10:
“This is perhaps the most blatantly inaccurate statement in this entire booklet, the result of either outright deception or intellectual dishonesty. R’ Ahron does indeed quote the מג"א who maintains such a position, but devotes much energy and considerable time to refuting its halachic accuracy. … This point [of mefulash] was an absolutely integral component of R’ Ahron’s halachic synthesis upon which he assured (אסור) an eruv for New York City.”

This is what is stated in the kuntres: The Magen Avraham, (345:6) understands mefulash me’shar le’shar as meaning mefulashim u’mechuvanim [straight] me’shar le’shar, straight in an uninterrupted line from city gate to city gate. The poskim concur (Bais Yosef, 345:8; Prei Megadim, Aishel Avraham, 364: 2; Bais Ephraim, O.C. 26; Tiferes Yisroel, in his introduction to Meseches Shabbos; U’Bacharta B’Chiam, siman 123; Shoel U’Maishiv, 2:87; Yehuda Yaleh, O.C. siman 54; Mahari Slutsk, O.C. siman 11; Minchas Eliezer, 3:4; Mishna Berura, 345:20; see also Misnhas Rav Ahron, 6:2, where Rav Ahron Kotler zt”l states, that it’s accepted that for a street to be a reshus ha’rabbim it has to be mefulashim u’mechuvanim me’shar le’shar). While Rav Aharon does not agree with the aforementioned poskim (note that he was not included in the list of those who pasken as such) he admits that it was accepted that a street has to be mefulashim u’mechuvanim me’shar le’shar in order to be classified as a reshus harabbim. That’s all that was stated in the kuntres. Additionally, Rav Hirsch is mistaken; Rav Aharon never wrote a teshuvah regarding Manhattan (see Divrei Menachem, O.C. vol. 2, p. 16).

Page 5 comment 11:
“The requirement of [600,000 people traversing] “daily” is not in accordance with R’ Moshe’s own view. He was of the opinion that since the Poskim who stipulate the requirement of ששים רבוא, i.e. Rashi, Tosafos, Rosh, etc., do not mention “daily”, it is not a necessary condition. Even ששים רבוא over a few days a year would be enough. Even if there is not ששים רבוא at one time but as a sum total of the days’ traffic. But he concedes that, possibly, one may disagree with him and uphold a contrary position that would admit leniency on this point.

This is incorrect. Rav Moshe zt”l maintains that according to the Shulchan Aruch’s shita, the requirement is daily (Igros Moshe, O.C. 1:139:5, 4:87-88, 5:28:16). Rav Moshe explained that the Shulchan Aruch is referring to a sratya which requires that the shishim ribo traverse it daily in order that it be classified as a reshus harabbim. This is as opposed to a city (a twelve mil by twelve mil area) where he posits that if there is a population of 3,000,000 it would support shishim ribo in its streets and then the city would be classified as a reshus harabbim. Additionally, Rav Hirsch’s statement that, “Even ששים רבוא over a few days a year would be enough,” is misleading since we can infer from these words that the shishim ribo can be tallied collectively over a few days when in fact Rav Moshe clearly maintains that the shishim ribo must be over one day. Rav Moshe just questioned (ibid., 4:88) if the requirement is every day of the year or would a single day suffice. More so, Rav Hirsch is misinterpreting this aforementioned teshuvah. In this teshuvah Rav Moshe concludes that "אך בזה כיון דבשו"ע כתב בדעת שיטה זו דצריך שיעברו ס' ריבוא בכל יום בסימן שמ"ה סעי' ז' יש אולי להקל." Nowhere did Rav Moshe mention that, “he concedes that, possibly, one may disagree with him and uphold a contrary position that would admit leniency on this point.” It’s the Shulchan Aruch’s leniency and therefore, Rav Moshe himself would agree that it’s possible to be lenient. More so, in the aforementioned teshuvos Rav Moshe states clearly (ibid., 1:139:5, 4:87, 5:28:16) that the requirement of shishim ribo is daily.

Part IV