Sunday, December 07, 2008

My Response to the Responsa – Shulchan Halevi: Part 2

Continued from part I

Shulchan Halevi:
Number of passerby: Others set on finding a loophole for eruvin in large cities looked to the wording of the Shulchan Aruch, who writes that a reshus ha’rabbim is one that is traversed by six-hundred thousand people each day. This, they suggested, means that even if an area or thoroughfare was potentially capable of handling the traffic of six-hundred thousand people, if the number of actual passerby each day was fewer, it could not be classified as a public domain. This would allow the construction of halachic ‘doorways’ in and along such thoroughfares. The Mishnah Berurah takes issue with this interpretation, saying, “I have looked through all the Rishonim who discuss this view, and this precondition is not mentioned by them. [The Rishonim] only say that a city must be populated by six-hundred thousand.” Given this, all of a city’s roads and thoroughfares are to be considered a reshus harabbim, even if no existing street carries six-hundred thousand people daily.
The rebuttal:
Rav Belsky is conflating two distinct arguments regarding the criterion of shishim ribo. Is the fundament of shishim ribo conditional of the city or street or is the obligation of shishim ribo bokim a daily requirement or not? As I mentioned earlier, Rav Belsky is incorrect as there is no doubt that the criterion of shishim ribo has been understood through the ages as being conditional of the street. Regarding the Mishnah Berurah (345:24), it is clear that he is only referring to the issue of shishim ribo bokim being a daily requirement or not. However, this issue is not pertinent since there is not one day of the year that any of our streets have shishim ribo traversing them. Moreover, at this point in time, it is clear that the Mishnah Berurah has been superseded since we now know that there are many Rishonim who uphold that the criterion of shishim ribo is a daily requirement (Are There Rishonim Who Require a Daily Shishim Ribo?).

Shulchan Halevi:
As an aside, the idea that there are streets through which 600,000 people traverse daily gives credence to a fantasy. No such street ever existed and imagining this to be a requirement for a reshus ha’rabbim is essentially an attempt to institute halachic reform for the sake of modern convenience. The danger of such an approach is self-evident.
The rebuttal:
Prior to making such a categorical statement, it would have been prudent of Rav Belsky to peruse the Rishonim and Achronim to distinguish how they applied the criterion of shishim ribo. As I mentioned previously, there is no doubt that the Achronim understood the criterion of shishim ribo as being conditional of the street. In regards to the Gaonim and Rishonim, the original source for the criterion of shishim ribo is the Gaon the Behag (Berlin edition, p. 131), who clearly refers to a street that contained shishim ribo. Additionally, there are many Rishonim who mention the criterion of shishim ribo in conjunction with a street (Rashi, Eruvin 6b; Tosfos, Eruvin 6a, 26a, and Shabbos 64b; HaEshkol, Hilchos Tzitzis ois 31 and Hilchos Eruvin ois 64; Sefer Ha’itim, ois 206, 209; Ra’avan, Shabbos 349; Ravyah, Hilchos Eruvin 379; Sefer HaMinhag, Hilchos Shabbos Hatzrichos ois 138; Sefer HaTerumah, ois 214, 239; Or Zarua, Hilchos Shabbos siman 16, Eruvin 129; Piskei Mahrach Or Zarua, Eruvin Perek 2 ois 57; Semag, Hilchos Shabbos p. 17; Maharam MeRotenberg, siman 31, Eruvin ois 10; Smak, Mitzvos Hatluyos B’Shabbos p. 296; Ramban, Shabbos 57a; Riaz, Eruvin Perek 1:5; Meiri, Shabbos 57a; Rabbeinu Yerucham, Toldot Adom V’Chavah Nesiv 12:4, 12:17; Rivevan, Eruvin 6b; Ran, Eruvin 6a; HaAgur, siman 537, and Sefer HaNeyar, Hilchos Eruvin p. 51).

Although, some of the Rishonim mention a city when discussing the criterion of shishim ribo, it is important to examine what a city denotes. Rashi, our source for the criterion of shishim ribo, states (Eruvin 59b; see also Tosfas Rid, ad loc.) that cities had one main thoroughfare used by all the residents to enter and exit the city, and this was the reshus harabbim, of the city (accordingly, all those who cite the lashon “air” that Rashi at times used as proof that he maintained that shishim ribo was conditional of the city are missing the point; to Rashi, city and street were one and the same). [On the other hand, today’s cities do not only have one main thoroughfare.] Furthermore, we see that some of the Rishonim alternate between using a lashon of a city and that of a street which indicates that they are one and the same (see Ritva, Eruvin 59a where he references city and in Shabbos 6a where he mentions a street). Therefore when some of the Rishonim make use of the term city they must be referring to a city’s main street including shishim ribo as Rashi outlines.

Consequentially, it is patently clear that the Rishonim assumed that there was a possibility for a street to be traversed by shishim ribo since they maintained that the criterion of shishim ribo was conditional of a street. Moreover, the Gemara in Berachos (58a) states that Yishai the father of Dovid HaMelech always traveled and lectured to a multitude of shishim ribo so we see that the Gemara assumed that there was a possibility for shishim ribo to congregate in one area.

Shulchan Halevi:
The law of the land: In one city, a certain Rav justified the building of an eruv based on the halachah of dinna d’malchusa dinna, that the law of the land is halachically binding. It is the law of the land that all people, pedestrians and vehicles alike, are required to come to a full stop at a red light. Therefore, this Rabbi opined that the barrier of the traffic signal should be considered a halachic ‘wall’ separating one city block from the next, breaking up the city into hundreds of separate blocks. On the basis of this idea, one which was never previously mentioned in halachic literature, he permitted the construction of an eruv in an area where the Torah prohibition to carry remained.
The rebuttal:
Well, no previous posek mentioned the concept of using red lights as a “halachic wall” because there were no traffic signals in previous days to talk of. It is interesting that, for some reason, in this sefer Rav Belsky omitted the name of the rav to whom he had earlier (he mentioned this issue in two shiurim) pegged this heter to, namely Rav Menashe Klein shlita. It is even more fascinating that Rav Belsky disparaged Rav Klein because of this heter but never derided the Klausenberger rebbe zt”l whom Rav Klein stated in his teshuvah was the originator of this chiddush (see Rav Klein’s Shaarei Halachos, 11 p. 27 and the Klausenberger rebbe’s Divrei Yatziv, 2:172:14, 173:4).

Moreover, Rav Belsky assiduously cites the example of the red lights as a paradigm of the arguments set forth by those who allow eruvin in large cities. With this reference, Rav Belsky is trying to make light of the mattirim as if this is their main argument to allow large city eruvin. In fact, Rav Klein mentions eleven reasons to allow an eruv in Boro Park, and the red lights are only one of them. Rav Kein includes fundamentals such as that the streets do not meet the criterion of mefulash u’mechuvanim m’shaar l’shaar, and that Brooklyn is encompassed by mechitzos. The question is why didn’t Rav Belsky address these fundamental reasons and chose instead to only focus on the red light heter?

In any case, to those not acquainted with what the poskim maintain are the underlying conditions of a reshus harabbim, it may seem that the red light heter is questionable. In truth, this heter is based on previous poskim. The Shoel U’maishiv (Mahadurah Kama, 1:251) and the Avnei Nezer (1:267:5) declare that if the authorities do not allow access to an area at a certain time, it is not classified as a reshus harabbim since one of the prerequisite of a reshus harabbim is that it always be accessible to the public. These Gedolie Haposkim maintain as such even though there are no physical barriers that inhibit the traffic. Why should the legal requirement to stop at a red light be any different? I will add that those poskim who suggested the red light heter would agree that it should only be looked upon as a snif l’heter.

Moreover, it is customary of the rabbanim who write teshuvos to build upon a heter by adding layers of additional rationale to be lenient. Rav Belsky is no stranger to this phenomenon and is known to employ it regarding modern-day kashrus issues and can be extremely creative in discovering additional reasons to be lenient. Why then can’t he understand when others do so when the issue is eruvin?

Shulchan Halevi:
The severity of hotza’as Shabbos: It is one thing if a person relies on an established leniency among the Rishonim, such as Rashi and Tosafos. No one will be taken to task by the Ribbono Shel Olam after one hundred and twenty years for carrying in an eruv that was built in consideration of the minhag ha’kehillos, the custom of the European communities, and founded on the opinions of Rashi and Tosafos.
Even so, when it comes to relying on the city-wide, European eruvin, the Mishnah Berurah often repeats the telling phrase, “uba’al nefesh yachmir – and a sensitive soul should be stringent.” In our times, it is no longer a question of stringency. With city populations easily exceeding six-hundred thousand, it is a genuine matter of a Torah prohibition. Creative rationales have no place anywhere in halachah, especially when we are dealing with a serious issur like hotza’as Shabbos.
The rebuttal:
Well, excuse us all for relying on the leniencies of the Gedolie Achronim, such as the Divrei Malkiel, the Achiezer and the Chazon Ish, who understand the Rishonim better than all of us. It is preposterous for one to suggest that one will be, “taken to task,” for relying on these Gedolie HaPoskim. Furthermore, we follow the Shulcahn Aruch who informs us as to which Rishonim we follow, and there is no doubt that the Shulchan Aruch applies the criterion of shishim ribo to a street. [Those who argue that the Shulchan Aruch understood the criterion of shishim ribo as applying to a city would need to answer why does the Shulchan Aruch use the term shishim riboovrimbo (implying that the shishim ribo need to traverse the street). According to their argument, the Shulchan Aruch should have written shishim ribodarimbo (implying a city containing a population of shishim ribo).] Moreover, since all of those carrying are just following their rav, there is no doubt that they will not, “be taken to task by the Ribbono Shel Olam after one hundred and twenty years for carrying in an eruv” (see further on). Is Rav Belsky suggesting that one should not follow his rav?

In fact, the Mishnah Berurah would have to admit that even a Baal Nefesh can be lenient since the overwhelming majority of Rishonim pasken that we can rely on shishim ribo (Part 1: According to the Mishnah Berurah, May a Baal Nefesh Carry in an Eruv of Tzuras HaPesachim?). There were cities in Europe that contained shishim ribo, and most people carried in these city eruvin. Cleary the minhag was that the criterion of shishim ribo was conditional of a street and not the city as Rav Belsky is suggesting. Even without relying on the criterion of shishim ribo, there are additional fundaments that are definitely not “creative rationales” which would allow an eruv in large cities namely the criterion of mefulash and that the area is encompassed by mechitzos. Consequently, as there are numerous grounds to allow our large city eruvin, there is no doubt that we will not be transgressing a “Torah prohibition.”

Shulchan Halevi:
The prohibition of hotza’ah, of carrying on Shabbos, is one of the most serious prohibitions in the Torah. Family purity, which is dear to everyone (and no one would ever think to be lenient in this), carries a punishment of kareis spiritual severance from HaKadosh Baruch Hu. Hotza’ah is far more serious, and carries the death penalty of skilah – stoning, in addition to kareis.
The issur of carrying is unique amongst all the thirty-nine melachos of Shabbos. The discussion of hotza’ah in the Talmud is ten times longer than the next most extensive topic. Over two hundred pages of Gemarah are dedicated to the intricacies of forbidden hotza’ah. No other issur d’Oraisa is protected by so many Rabbinical ordinances and stringencies. We refrain from performing two Torah mitzvos, and one ordinance of the Prophets – shofar, lulav, and megillah – in deference to the issur of hotza’ah on Shabbos. According to most Rishonim, the entire edifice of muktzah, the restriction of handling unnecessary items on Shabbos, is to guard against accidental hotza’ah. Shlomo HaMelech wisely developed the requirements of eruvin even in non-public areas, and Hashem approved it, as a safeguard against violating the Torah prohibition of hotza’ah.
If anyone would ask why the first Beis HaMikdash was destroyed, the natural response would be to quote the Gemara in Yoma (9b): “Because of three things… idolatry, immorality, and murder.” But Yimiyahu HaNavi gave another reason altogether:
Thus says Hashem, Guard your lives and do not carry any object… do not take out from your homes any object on the Sabbath day… If you do not heed Me to sanctify the Sabbath day and not to carry objects, and you come to the gates of Jerusalem on the Sabbath day, I shall kindle fire in her gates, and I shall consume the palaces of Jerusalem, and it will not be extinguished” (Yirmiyahu 17:21-22,27).

The rebuttal:
All of the above was uttered in vain. No one denies that the matter of hotza’ah is a serious issue, but this is the reason to establish an eruv. All of the issues regarding hotza’ah that Rav Belsky mentioned are only when one carries in an area not encompassed by an eruv, but this is not our situation at all. Of course, Rav Belsky’s argument is that the eruv is not kosher so it is as if people are carrying in an area that is not included in an eruv. However, no doubt Rav Belsky is aware of Rav Moshe Feinstein zt”l’s teshuvah (Igros Moshe, O.C. 1:186) were he states that when one follows one’s rav on any issue, even on issurei chilul Shabbos, albeit the halachah is not like their rav’s interpretation, no aveirah is transgressed. Consequentially, since those utilizing the eruvin in Brooklyn are just following their rav’s opinion that the eruv is kosher, no issur was transgressed. Is Rav Belsky suggesting that one should not follow his rav? Moreover, there is no doubt that the Brooklyn eruvin are more kosher then much of what we put into our mouths today. Vhamayvin yavin.

Shulchan Halevi:
Instead of seeking leniencies and finding rationales to permit what is assur, we should take Chazal as our guide and guard ourselves from the issur of hotza’a, relying only on the solid views of the Rishonim. We should shun modern-day excuses for carrying on Shabbos Kodesh.
The rebuttal:
Yet again it would seem that Rav Belsky is suggesting that we should discount the views of the Gedolei Achronim, such as the Divrei Malkiel, the Achiezer and the Chazon ish, who allow large city eruvin. There is no doubt that these Gedolie Achronim understood the Rishonim unlike Rav Belsky. Moreover, Rav Belsky time and again fails to recognize that there are numerous grounds in addition to the criterion of shishim ribo that would allow eruvin in large cities l’chatchilah namely mefulash, and that the city is encompassed by mechitzos. These “excuses” are as old as hilchos eruvin itself.

Shulchan Halevi:
The Gemara (Eruvin 101a) states that when Yerushalayim was completely surrounded by walls, it was rendered a karmelis. The question then arises, why indeed did they not make eruvei chatzeiros or shitufei mevo’os to permit carrying on Shabbos? Many mefarshim answer that it was an accepted minhag not to build eruvin in large cities even where it was permissible.

The rebuttal:
I challenge Rav Belsky to cite one “meforesh” besides for Rav Moshe zt”l who argues, “that it was an accepted minhag not to build eruvin in large cities even where it was permissible.” All the mefarshim give alternative reasons why an eruv was not erected in Yerushalayim at the time (the Noda B’Yehudah, Mahadura Tinyana Kuntres Achron siman 21 and the Tiferes Yisroel, Eruvin 10:57, maintain that an eruv was allowed in Yerushalayim, however it was not possible to establish an eruv at the time). Moreover, some Rishonim clearly state that while they did not enclose the entire city of Yerushalayim, they did enact eruvei chatzeiros for the mavo’os of the city (Ravyah, p. 398). It is obvious that the Rishonim did not know of this “accepted minhag.”

Shulchan Halevi:
It should be noted when making eruvin in cities where the population is less then 600,000 one must be on guard for an increase in population which would render the existing eruvin invalid.
The rebuttal:
It appears that Rav Belsky is alluding to the Yerushalayim and Beni Brak eruvin which today contain a population greater than shishim ribo. It would be interesting to hear the reaction to Rav Belsky’s arguments in these cities in Eretz Yisroel where it seems that they do not agree to his understanding of the criterion of shishim ribo. Moreover, even though Rav Moshe zt”l allowed an eruv in Kew Gardens Hills, Rav Belsky should argue that it is invalid since it is part of a borough that contains a population that is much greater than shishim ribo.

Shulchan Halevi:
Furthermore, almost all the creative reasons invented to permit eruvin in large cities today would result in rules that would make it impossible for the existence of a reshus ha’rabbim, even those surrounded by walls, such as Yerushalayim, and the Babylonian city of Mechuza. It is self-evident that reasoning which leads to absurd conclusions is flawed by definition. It is surely the most ridiculous absurdity to imagine that there were never any public domains when so many of them are actually identified by Chazal and in light of the many decrees that were made by Chazal to prevent carrying on Shabbos. This alone is proof enough to invalidate this entire modernistic approach to halachah.
The rebuttal:
This is not an argument at all. Of course there were cities that were classified as a reshus harabbim even according to those who maintain that shishim ribo is conditional of the street. As Rashi explains (Eruvin 6b) regarding Yerushalayim and Mechoza, the reshus harabbim of the city was sixteen amos wide, mefulash u’mechuvanim m’shaar l’shaar and included shishim ribo traversing it. Later, Rashi illuminates how the cities of that time were designed (Eruvin 59b). They had one main road that all residents used to exit and enter the city, and this was the reshus harabbim, of the city. Consequently, only cities with such a layout could possibly meet all the criteria of a reshus harabbim. However, our cities have more than one main street thus they would not meet the criterion of shishim ribo.

It would be illuminating to peruse the words of one of the greatest poskim of his time, HaGaon Rav Shlomo Kluger. In his Sefer HaChaim (siman 345:7) he states that in the time of the Chachmei HaShas there was the possibility of a reshus harabbim, but as Rashi maintains, in our days there is no such thing as a reshus harabbim. In the times of Rav Kluger, there were cities such as Paris and London that contained a population greater than shishim ribo. Nevertheless, he argued that only in the time of the Chachmei HaShas was there a possibility of a city being classified as a reshus harabbim. Rav Kluger was not bothered that in his day there was no such thing as a reshus harabbim, and we should not be bothered as well.

Shulchan Halevi:
It is painful to observe how the groups who wish to construct these eruvin insist that the Chasidic custom has always been to seek any justification to allow eruvin any place, when in fact all historical evidence points to the contrary. As we mentioned above, it was the Beis Ephraim, a staunch misnaged, who permitted eruvin in Europe
.
The rebuttal:
While there is no doubt that most poskim, Chassidshe and Litvishe alike, sought out kulos when necessary to establish an eruv, there is no doubt as well that the Chassidshe rebbes and poskim on the whole were the foremost advocates of eruvin.

To quote The Contemporary Eruv (note 49):
Historically, Chassidim have been more inclined to promote the construction and the use of eruvin than Misnagdim. This tradition commenced with the founding of Chassidus, as the Beis Aharon – Rabbi Aharon “HaGadol” of Karlin (Likutim, p. 289) – reports that the Ba’al Shem Tov himself said that he came to this world to rectify three areas: to insure the proper slaughter (shechitah) of animals; to encourage the construction and use of eruvin; and, to promote more extensive use of mikvah. The first letters of the Hebrew terms for each of these three areas: Zevicha, Eruvin, Mikveh, form the acrostic: ZA’aM.” The Beis Aharon interprets the verse in Chabakuk 3:12: “In ZA’aM the land shall march,” as alluding to these three rectifications, that by them the land will march toward proper underpinnings.

Even more so, there were Chassidshe rabbeim who advocated that one must carry in an eruv (Part 5: Meoz U’Mekedem – Exploring the Historical Roots of the Machlokas Regarding Eruvin). It is telling that almost all the supporters of the eruv in Manhattan were of Chassidshe linage, and those opposing were of Litvishe descent (The Hundredth-Year Anniversary of the First Eruv in New York 1905-2005). Furthermore, Rav Belsky is totally incorrect. The Bais Ephraim was not a misnaged by any stretch of the imagination. It is well known fact that he davend Nusach Sefard and that he gave countless haskamos on Chasidshe seforim (see here).

Shulchan Halevi:
In Warsaw, Poland, the Rav who permitted an eruv, even when the population of the city grew to exceed 600,000, was Rav Shlomo Dovid Kahane, a Lithuanian Jew who never identified with Chassidism. The Chassidic population of Warsaw never used the eruv, and considered carrying in Warsaw on Shabbos to be prohibited.

The rebuttal:
To begin with, it is important to note that Rav Belsky has mentioned in his shiurim that Rav Shlomo Dovid Kahane zt”l’s heter for an eruv in Warsaw was based on the fact that the Vistula River divided the population of Warsaw into parts that contained less than shishim ribo. This is incorrect, and it is telling that Rav Belsky assiduously omits the reason why Rav Kahane allowed an eruv in Warsaw. Rav Kahane clearly stated that they relied on the heter of mefulash, and that he didn’t want to rely on the criterion of shishim ribo at all (Part 1: The Truth About Warsaw). Furthermore, the fact is that by the year 1900 the much larger side of Warsaw contained shishim ribo (Part 2: The Truth About Warsaw) so those who did rely on the criterion of shishim ribo must have upheld that the criterion applied to a street and not to a city.

Moreover, Rav Belsky is perpetuating a myth. The fact is there are people alive today who will testify that Chassiddim carried on Shabbos in Warsaw. I personally spoke to Chassidshe residents of Warsaw who carried in their hometown. There is also a movie clip of Chassidshe Yidden carrying in Warsaw on Shabbos. [I hope to post a more comprehensive history of the Warsaw eruv in the future.]

Shulchan Halevi:
Those who today wish to permit eruvin, who in every other respect are faithful to time-honored traditional custom have in this case availed themselves of an approach to halachah that has no precedent and has never before appeared in any reputable Torah work.
The rebuttal:
On the contrary, those who are establishing these eruvin are the ones who are following the “time-honored traditional custom” of erecting eruvin even in the largest of cities. It is Rav Belsky who is arguing on the minhag as mentioned in the Divrei Malkiel, the Achiezer, the Chazon Ish and by Rav Shlomo Dovid Kahane.


In summation, it is telling that Rav Belsky harps on the issue of shishim ribo and omits the other criteria suggested by the Gedolie HaPoskim that would clearly allow an eruv to be established even in the largest of cities for the following reasons: Most poskim uphold that the criterion of shishim ribo is conditional of a street. Most poskim maintain that for a street to be classified as a reshus harabbim, it would need to be mefulash u’mechuvanim m’shaar l’shaar. Moreover, many cities could make use of mechitzos habattim. Furthermore, even if an area was classified as a reshus harabbim, many poskim maintain that if the area is encompassed by tzuras hapesachim, the area is downgraded to a reshus hayachid, and only me’d’rabbanim is there a requirement of delasos. Additionally, at the minimum, these heterim would be considered sfek sfeikos, thus we would go l’kulah even if it were to be a Torah prohibition.