Wednesday, August 17, 2011

Gezeiros and More: HaRav Shlomo Pearl Shlita on the Brooklyn and Queens Eruvin, Part 1

Part of an ongoing commentary on the bias against city eruvin.

After reviewing Rav Shlomo Pearl shlita’s shiur (Jan. 9, 2011) titled The New Eruv in Queens, I came away duly impressed as he knows Rav Moshe Feinstein zt”l’s shitos in eruvin better than most rabbanim. However, because of his inaccurate application of these shitos, I feel there is a need for clarification and confutation. Rav Pearl omits and conflates some important issues regarding Rav Moshe’s shitos especially as they pertain to Brooklyn eruvin. While Rav Pearl formed a fascinating narrative that connects many of Rav Moshe’s teshuvos, it is at times factually incorrect. I should note Rav Pearl made some remarkable statements regarding Rav Moshe and eruvin that validate positions that I have upheld for years. Furthermore, Rav Pearl has also contributed an important statement in the name of Rav Dovid Feinstein shlita in the past (shiur number 325, Nov. 14, 1999). Rav Pearl stated that he had spoken with Rav Dovid Feinstein about being mocheh against the eruv (in Boro Park). Rav Dovid made it clear that no one should be mocheh. Additionally, Rav Dovid was unequivocal in his declaration that even if a gadol, in order to negate the eruvei chatzeiros, was to declare that he is mocheh against the eruv, he “must be crazy.”

The following is a rebuttal of his shiur. Please note that this is not a word for word transcription of the shiur as it has been edited for clarity (see here for the shiur).

Rav Pearl shlita:
Regarding the eruv itself, there seems to be an extended new eruv in Queens. Someone called it to my attention and showed me a little blurb in the Jewish Press about a new eruv in Queens. It’s not actually a new eruv, it’s an extension of the Kew Garden Hills eruv. It now includes Holliswood, Briarwood, and Hillcrest, Jamaica Estates, and the Jewish Press says now this is the biggest eruv in NYC. That sounds like a maileh, the biggest eruv in NYC. Normally that is not considered in my book a maileh but efsher gur a chisoron.

My rebuttal:
In fact, some poskim such as the Chazon Ish (O.C. 107:4-7) Rav Shlomo Dovid Kahane (Divrei Menachem, O.C. vol. 2 pp.42-43) and the Divrei Malkiel (4:3) notate that large cities are less likely to be a reshus harabbim than small cities. Since in large cities the streets are more likely to be curved [eino mefulash] or be encompassed by mechitzos, consequentially an eruv in a large city, even the, “biggest eruv in NYC,” could be gur a maileh.

Rav Pearl shlita:
So, b’emes, we have to understand what they had before, in Kew Garden Hills. The eruv there and it was written up in Igros Moshe chelek daled, siman 86 and Rav Moshe was quite happy with that eruv. He says there are normally 4 or 5 requirements for an eruv there to have been put up l’heter, and all 4 or 5 requirements were met namely 1) That all rabbanim were in favor of the eruv. Do we ever find a place where all the rabbanim are in favor of anything? You know that’s something out of the ordinary to begin with. It’s not a normal place if all the rabbanim agreed on anything. Shelo k’derech hateva. 2) The eruv didn’t cross a highway. 3) The eruv was easy to check to see if there was anything that would go wrong. The chances of anything going wrong was rochuk meod, wasn’t really probably something ever happening. 4) There was someone checking it every erev Shabbos. So it seems like there was no problem. But there was a fifth requirement that was included here but not directly which was important. That it [the eruv] only encompassed a very small part of Queens, Kew Garden Hills. Now the eruv is extended beyond Kew Garden Hills, to 4 or 5 other places, now what? I certainly didn’t inspect the original eruv, there was no need for me to do that. Rav Moshe was maskim to that on these four or five basic requirements. So if it still meets all of Rav Moshe’s requirements, then it’s kasher. And if it’s not it’s not.

The rebuttal:
To begin with, Rav Moshe never listed these issues as requirements but only as his grounds to allow an eruv in Queens. [As we shall see later, the underlying issue is that Queens should be classified as a reshus harabbim according to Rav Moshe’s shitos.]

Let’s explore these issues.
1) According to Rav Moshe, rabbinical consensus could not have been a major requirement. Rav Moshe himself opposed the Manhattan eruv and nevertheless allowed the Manhattan rabbanim to do as they saw fit and establish an eruv (Igros Moshe, O.C. 4:89 and HaPardes, 33rd year, vol. 9). Moreover, even regarding the Flatbush eruv, we see from Rav Moshe’s teshuvah (Igros Moshe, O.C. 4:87) that he did not argue with the rabbanim who erected the eruv that this issue would negate the eruv there.

2) If not including the highways in the parameters of the eruv was such a concern of Rav Moshe, why then did he not mention it regarding the Detroit eruv (ibid., 5:29)? In any case, there is no difference between Kew Gardens Hills and the Brooklyn eruvin since highways are not included in the Brooklyn eruvin either.

3-4) Regarding these two issues, there is no difference between the Kew Gardens Hills eruv and the Brooklyn eruvin.

5) The eruvin in Brooklyn also only encompass a small section of Brooklyn (see much more about this further on).

Rav Pearl shlita:
Someone could very likely ask, let’s take an area in Brooklyn that’s a small part of Brooklyn, and where all the rabbanim would be in favor, and it would include no highway, and it would be easy to check, like E 29th from J to K, K to L or whatever street you may want. That’s a small area of Brooklyn, and there may be one or two rabbanim on that street and they’re all in favor. If we could do it in Queens why can’t we do it in Brooklyn?

The rebuttal:
Actually, as I demonstrated above, there is no reason according to Rav Moshe why we cannot establish an eruv that only encompasses a small part of Brooklyn. At this point, I would like to set forth the only unified account of why Rav Moshe’s did not allow an eruv for the Brooklyn neighborhoods of Boro Park and Flatbush, particulars that Rav Pearl totally missed or ignored.

While Rav Moshe maintained that if an area of twelve mil by twelve mil is classified [or thought of] as a reshus harabbim, an eruv cannot be erected in any part of that area; nevertheless, we see that he allowed eruvin for Kew Garden Hills, Queens (ibid., 4:86); Oak Park and Southfield, Detroit (ibid., 5:29); and the Jewish quarters in Europe (ibid., 5:28:5) which he would have otherwise objected to. The reason Rav Moshe allowed for a neighborhood of these large cities to be demarcated with an eruv was because they contained less than shishim ribo. However, regarding Boro Park and Flatbush Rav Moshe was led to believe that independently they contained populations greater than shishim ribo; therefore, an eruv could not demarcate these Brooklyn neighborhoods (ibid., 5:28:5 and Addendum to O.C. 4:89). There is no other rational reason why Rav Moshe argued that both Boro Park and Flatbush contain more than shishim ribo if not that this was the defining motive to allow a city to be divided with a tzuras hapesach.

Lest one think that a tzuras hapesach could not demarcate a reshus harabbim, I should note that there are Rishonim and Achronim who maintain as such (see Tosfos Rid, Eruvin 22a; Or Zarua, Eruvin 22a; Rav Yonasan Stief zt”l in Mahari Stief, siman 68; Rav Chaim Michoel Dov Weissmandel zt”l in Toras Chemed, p. 93, and Rav Elya Meir Bloch zt”l in Kol Tzvi number 7).

Rav Pearl shlita:
Rav Moshe has teshuvos on that, and he basically says in Brooklyn he found one place that you could make an eruv, and that was Seagate. Why? Because it has a fence on three sides and the fourth side was the Atlantic Ocean. There were a lot of big stones there which served somewhat as a fence and the openings there on the fourth side they made a tzuras hapesach in a few places. It was a makom that Rav Moshe said people didn’t go normally and it was under good hashgacha, so Rav Moshe was matir the eruv.

The rebuttal:
To begin with, I must correct Rav Pearl’s narrative; Rav Moshe never said that he only found one place in Brooklyn where he could allow an eruv, Seagate. Rav Moshe only stated that he allowed the Seagate eruv because it was enclosed by gates. In any case, it is irrelevant to the issue of Brooklyn eruvin that Rav Moshe made use of mechitzos for the eruv in Seagate since according to Rav Moshe’s shitos in eruvin there would be no need for mechitzos for an eruv in Brooklyn. As mentioned above, according to Rav Moshe’s shitos, as long as the tzuras hapesach included less than shishim ribo an eruv can be established even in Brooklyn.

Now let us explore why Rav Moshe possibly mentioned that Seagate was encompassed by gates. When Rav Moshe wrote his Seagate teshuvos in 1960, he had not yet drafted all his shitos in eruvin and did not mention the issue of Brooklyn possibly being a reshus harabbim (Igros Moshe, 2:89-90; Rav Moshe did not yet quantify how many people would be required to live in this twelve mil by twelve mil area). Later, when Rav Moshe was challenged as to why he allowed an eruv for Seagate, he argued that it was encompassed by gates on three sides and the fourth side by the Ocean (ibid., Addendum to O.C. 4:89 and 5:28:19). When Rav Moshe stated that Seagate was enclosed by gates, he was merely establishing the metzius and why tzuras hapesachim were not needed. The mechitzos encompassing Seagate were being used for the eruv to allow carrying [heter tiltul]. If Seagate had been enclosed only by a tzuras hapesach just like Kew Garden Hills, Rav Moshe would not have objected to an eruv there either as long as the eruv encompassed less than shishim ribo.

This can be discerned from the Addendum to O.C. 4:89, where Rav Moshe mentions that both Boro Park and Flatbush (which he was mislead to believe) independently contain shishim ribo, hence an eruv cannot be established there (see above). Rav Moshe continues that Seagate is enclosed by mechitzos and that Kew Garden Hills is only a small neighborhood; therefore, an eruv could be established in these neighborhoods. The fact that Rav Moshe in this Addendum first mentions that Boro Park and Flatbush cannot establish an eruv because independently they contained shishim ribo and then states his motives why Seagate and Kew Garden Hills can establish an eruv proves that the underlying grounds for allowing these eruvin was because they did not encompass shishim ribo. Consequentially, Seagate’s uniqueness in Brooklyn was that its gates encompassed only a small section of the borough that included less than shishim ribo, but just as in Kew Garden Hills and Detroit, a tzuras hapesach would have been sufficient, as well.

[It is of interest to note that Seagate’s eruv became halachically problematic a while ago and was refurbished by the Boro Park Vaad HaEruv.]

Rav Pearl shlita:
But when it came to Brooklyn, there was a different problem. Brooklyn had 2.4 million population, and Rav Moshe held with such a population you could have samach ribo bokim bo at any given time. Rav Moshe speculates to get samach ribo on the street at any given time that three-quarters of the population is indoors in houses, offices, etc. and one-quarter is on the street. So to get 600,000 you need a population of 2.4 million which is in Brooklyn. L’meila it’s a reshus harabbim, and you can’t make an eruv around a reshus harabbim. So l’meila Brooklyn is a reshus harabbim d’ir and reshus harabbim d’ir doesn’t mean Ocean Parkway is a reshus harabbim — it means every street in Brooklyn is a reshus harabbim. But every street doesn’t have 600,000 people on it? Once it has a name of reshus harabbim d’ir, it includes every street.

The rebuttal:
Let us follow how Rav Moshe’s shitos in eruvin evolved. Like most poskim, Rav Moshe originally maintained (ibid., 1:109) that the criterion of shishim ribo was conditional on the street being traversed by shishim ribo. However, later (ibid., 1:139:5) he formulated his chiddush in which shishim ribo when applied to a city was not dependent on a street but over a twelve mil by twelve mil area. Rav Moshe added that the criterion of shishim ribo ovrim bo would require a sizable population living and commuting into the twelve mil by twelve mil area so that it could physically satisfy the condition of 600,000 people collectively traversing its streets. When these criteria are met, the area would be classified as a reshus harabbim and a tzuras hapesach would not be adequate. However, at this time Rav Moshe did not quantify how many people would be required to live in this twelve mil by twelve mil area.

In the first teshuvah quantifying how many people would be required to live in this twelve mil by twelve mil area, Rav Moshe stated (ibid., 4:87) that since in the past eruvin had been erected in cities with populations exceeding shishim ribo, one could not classify a city as a reshus harabbim solely on the basis of the existence of a population of 600,000. He then added that, although the actual number of inhabitants could possibly vary according to the city, in Brooklyn it would most likely require four to five times shishim ribo. In the final two teshuvos which followed regarding Brooklyn, we see that Rav Moshe codified his chiddush that the requirement is, "just about three million people," (ibid., 5:28:5) or, "at least five times shishim ribo," (ibid., 5:29) which could amount to even more than three million people. Consequently, in the Chicago eruv pamphlet (West Rogers Park Eruv, 1993 p. 23) it is stated that Rav Dovid Feinstein shlita was in agreement that according to his father's shitah there must be a minimum of three million people in order for the city to be defined as a reshus harabbim.

Since Rav Moshe’s final requirement to classify an area as a reshus harabbim is three million and not 2.4 million as Rav Pearl suggests, had Rav Moshe known the facts that Brooklyn’s population is under three million (see Part 2: The Permissibility of a Brooklyn Eruv According to Rav Moshe Feinstein zt”l) he would concur that it does not have the status of a reshus harabbim d’ir (but only of a gezeirah; see further).

In a handout of a shiur (number 333) that Rav Pearl gave on January 9, 2000 he quoted Rav Moshe (Igros Moshe, O.C. 4:88):

שאיכא ימים בימי הקיץ שבאים לשם (קאני איילענד וברייטאן ביטש) יותר ממיליאן איש ביום …וכיון שאיכא ימים שאיכא ס' ריבוא אפשר שסגי בזה להחשיב רה"ר גם על השנה, שלא הכל הזכירו שבעלי שיטה זו סברי דצריך שבכל יום יהיו עוברין בו ס' ריבוא דברש"י ותוס' והרא"ש לא הוזכר בכל יום, וא"כ אפשר סברי דאם אך איכא המציאות בעוברים ס' ריבוא וראוי הוא מצד המקום ומספר האנשים שבסביבה שיעברו גם בכל עת ס' ריבוא הוא רה"ר,

With this quote, Rav Pearl wanted to prove the population of Brooklyn far exceeds Rav Moshe’s requirement to classify it as a reshus harabbim since at times there were over a million people at its beaches. However, Rav Pearl failed to quote Rav Moshe’s words in its entirety. Rav Moshe continued:

אך בזה כיון דבש"ע כתב בדעת שיטה זו דצריך שיעברו ס' ריבוא בכל יום בסימן שמ"ה סעי' ז' יש אולי להקל

From the above we see that Rav Moshe admits that the Shulchan Aruch is lenient and requires a daily shishim ribo. More so, Rav Moshe states clearly in numerous teshuvos that the requirement of shishim ribo is daily (ibid., 1:139:5, 4:87, 5:28:16). Consequentially, Rav Moshe would not include in the tally the extremely unusual occurrence of a million people at the Brooklyn beaches.

Regarding the undercount that Rav Pearl mentions in this handout, I think that when they include the undercount from Queens we will include the undercount in Brooklyn. This is all ridiculous and absurd. In any case, even with the undercount the population off Brooklyn would still not reach Rav Moshe’s requirement of three million.