Thursday, August 18, 2011

Gezeiros and More: HaRav Shlomo Pearl Shlita on the Brooklyn and Queens Eruvin, Part 2

Continued from here.


Rav Pearl shlita:
Does it mean even the dead end streets? Rav Dovid Feinstein says yes, that’s what his father held. But it’s a mavoy she’eino mefulash? But it’s reshus harabbim d’ir. But the gamara talks about mavoy she’eino mefulash you could be ma’ariv? But this is the reshus harabbim d’sratya the derachim, if there was a derech and on the side of that derech there was a mavoy which wasn’t mefulash, so there already you can make an eruv. But reshus harabbim d’ir every street is part of reshus harabbim d’ir.
The rebuttal:
What? Bemechilas kevod Toraso, this is simply incorrect, and I don’t believe that Rav Moshe maintained as such. According to Rav Moshe, if a twelve mil by twelve mil area contains a population of three million people, the area is classified as a reshus harabbim d’ir. On the other hand, in order to classify a sratya [intercity road] as a reshus harabbim, the shishim ribo would need to traverse the sratya itself. Consequently, Rav Pearl is arguing that, according to Rav Moshe, a mavoy she’eino mefulash in a city could not be removed from the reshus harabbim d’ir, but when a dead end street runs perpendicular to a srtaya, it can be separated. This is a shockingly erroneous understanding of the halachos of a mavoy she’eino mefulash. Since a dead end street (one that runs perpendicular to a thoroughfare) is literately not mefulash — one is totally obstructed from continuing further and cannot turn off the street — it is not classified as a reshus harabbim and can always be separated with a tzuras hapesach (even if there is shishim ribo traversing therein). Even Rav Moshe maintains that to be classified as a reshus harabbim the street would need to be, at the minimum, open so that one can turn off the street (Igros Moshe, O.C. 5:28:7). Therefore, a mavoy she’eino mefulash would not be classified as a reshus harabbim even according to Rav Moshe and it could be demarcated with a tzuras hapesach.

In a handout of a shiur (number 333) that Rav Pearl gave on January 9, 2000, he wrote that Rav Moshe detailed his motives to allow an eruv for Seagate such as the fact that there were small entrances that were manned by guards to allow people or vehicles to enter. Rav Pearl argues that since Seagate was like a mavoy she’eino mefulash because its third side was the ocean, Rav Moshe would only have given these particulars if a tzuras hapesach would not have been sufficient. However, this is incorrect. The fact that Rav Moshe did not insist on actual delasos to close these small pirtzos demonstrates that he maintained that [although it would be an issue of asu rabbim] even a tzuras hapesach would be adequate (or, as the case was, there was no need to close the pirtzah at all). The delasos that Rav Moshe mentions are stop bars that are not halachiclly sufficient. [It is important to note that Rav Moshe does not mention that there were delasos in the Seagate teshuvos (ibid., 2:89-90). He no doubt knew about this firsthand as he had established the eruv himself (ibid., 5:28:19).] In any case, as we see from his teshuvos (ibid., 2:89-90), the issue that Rav Moshe had to be concerned with in Seagate was that the area should be entirely enclosed so that there be a heter tiltul, and the issue of reshus harabbim was not mentioned at all. The entire premise of citing these diyukim as proof is inane. It is imprudent to add more chiddushim to Rav Moshe’s when it would be in opposition to accepted halachah pesuka that a tzuras hapesach would suffice to separate a mavoy she’eino mefulash (for starters, see the first Mishnah in Eruvin).

An additional rationale given why Rav Moshe would be stringent with a mavoy she’eino mefulash is because, as he argued against the Chazon Ish, the streets are made to be traversed by the rabbim so the mechitzos habatim cannot form a third mechitzah with its halachic omed. Consequentially, Rav Moshe would not agree that the batim encompassing a mavoy she’eino mefulash could remove it from the reshus harabbim d’ir (Vedibarta Bam, p. 295). However, this is incorrect; a mavoy she’eino mefulash has a third mechitzah that is not the omed of the mechitzos habatim but only a literal wall that one cannot pass through (either a house or usually a fence). How can anyone argue that Rav Moshe does not accept that a solid wall does not form a mechitzah even if it was the wall of a house? Moreover, the fact is, dead end streets have three complete mechitzos without the batim i.e. the gates in the rear of the houses and so they should completely remove the street from the reshus harabbim d’ir. The other rationale given there, in the sefer Vedibarta Bam, is a complete misunderstanding of the Bi’ur Halachah in siman 345, since the situation there is a mavoy she’eino mefulash that does not have three complete walls.

[On the subject of the sefer Vedibarta Bam, I would like to correct an additional major error stated therein. He claims that Rav Moshe maintains that sixteen amos is a shiur pirtzah (Igros Moshe, O.C. 1:139:3). This is incorrect. The first time Rav Moshe mentions sixteen amos he is referring to the Rambam in hilchos Shabbos 17:10. The Rambam is discussing a situation of only two mechitzos which has no bearing on a shiur pirtzah of three mechitzos omed merubeh al haparutz. The second time Rav Moshe mentions sixteen amos, he is referring to the Rashba who paskens asu rabbim, which has nothing to do with a shiur pirtzah either.]

Rav Pearl shlita:
So, Canarsie is a small place, maybe I can make an eruv there? Or in Flatbush, on one block? But no, it’s reshus harabbim d’ir. But there’s an eruv in Manhattan Beach. Who put up the eruv there? Rav Shimon Eider a talmid of Rav Moshe. So what’s that eruv doing there if you can’t make an eruv [in Brooklyn] besides for Seagate? I asked Rav Dovid Feinstein about the eruv and he said, “My father would never have been maskim.” So I called Rav Shimon Eider and he said, “Is that what Rav Dovid told you or is that what Rav Dovid told you his father said?” I said that’s what Rav Dovid said his father held. Rav Shimon told me that in those days when he was putting up the eruv in Manhattan Beach he couldn’t get through to Rav Moshe. The door was blocked off. So he had no chance to speak to Rav Moshe. They were running interference in those days. You couldn’t get to Rav Moshe. But he assumed that the eruv was kasher. L’meila the eruv was put up under his hashgacha and he held it was kasher. But Rav Dovid didn’t hold like that, and he said it in the name of Rav Moshe that the eruv in Manhattan Beach you can’t be somech on.

The rebuttal:
I reiterate, there is no reason according to Rav Moshe why an eruv can be erected for a part of Queens but not for a part Brooklyn.

This story about Rav Shimon Eider zt”l is very illuminating. It is well known by those involved in eruvin that Rav Eider was terrorized by certain members of the anti-eruv cabal (witness Sydney, Australia and Golders Green, London etc.). This story lends credence to what Rav Menashe Klein shlita has said, that he was not allowed into Rav Moshe to discuss the issue of eruvin (Oim Ani Chomah, siman 55 p. 266). I know some would say that the reason for the interference with Rav Eider was because Rav Moshe was not well at the time. I don’t buy this argument. Rav Eider was a talmid and should have been allowed to approach Rav Moshe at some point. The people who controlled the entrance to Rav Moshe at the time were the ones whom Rav Moshe sent his teshuvah opposing the Boro Park eruv (one of them is a founding member of the cabal), and they did not allow Rav Klein and Rav Eider into Rav Moshe.

It is of interest to note that Rav Moshe allowed Rav Eider to establish an eruv in Manhattan even after Rav Moshe wrote his teshuvos opposing one (see In Light of New Evidence: Revisiting Brooklyn’s Kol Koreis). Clearly Rav Moshe would not have had a problem with Rav Eider establishing an eruv for Manhattan Beach.

Rav Pearl shlita:
What about Queens. Why should the eruv in Queens, in Kew Garden Hills, the original eruv be good? For two possible reasons: 1) The population of Queens was somewhat smaller than Brooklyn, but that always changes, it was about 2 million. 2) And then the real heter with Queens was the fact that the 600,000 has to be in an area of twelve mil by twelve mil, about eight square miles. Brooklyn is in that geder of twelve mil square. Queens is much larger in size than Brooklyn, so even if Queens had a population of 2.4 million the same population as Brooklyn, since the population would not be in twelve mil by twelve mil, so Queens would not be a reshus harabbim. Therefore, Rav Moshe held that you could take a small part of Queens and make an eruv. If the extended eruv of Queens still meets all the requirements mentioned above, then the eruv is good. And if it doesn’t meet those requirements which I can’t clarify, then Rav Moshe wouldn’t have agreed to the eruv.

The rebuttal:
As I mentioned above, according to Rav Moshe’s finalized shita the population would need to be at least three million to classify an area as a reshus harabbim. Furthermore, the area that Brooklyn encompasses is more than twelve mil by twelve mil (see much more about this further on). Consequentially, any twelve mil by twelve mil section of Brooklyn would encompasses a population of less than three million. Hence, there is no difference between Brooklyn and Queens, and if an eruv can be established in a section of Queens, an eruv can be erected in a section of Brooklyn, as well.

Rav Pearl shlita:
When it came to Detroit, in the teshuvah on the eruv it was in a suburb of Detroit, Rav Moshe said that he agreed to the eruv for the same reason. There he doesn’t say all the rabbanim were in favor, he said rov d’rabbanim, to get all the rabbanim in favor of anything that doesn’t happen. It didn’t go through a highway, it was easy to check, it was good hashgacha, so l’meila he was maskim to the eruv in a suburb of Detroit. But to make an eruv around the whole Detroit, that he did not allow. Why not? Because, even though Detroit didn’t have a population of 2.4 million, not anywhere near that, he held that if you made an eruv around a whole city, that shema yitu — if you can carry in Detroit you can carry anyplace. In Brooklyn, he held that if you carry you are oiver an issur d’Oraysa. If you would carry in a place like Detroit, where they made an eruv around the whole city which he holds they couldn’t do, but if they did it, so now you would be oiver on shema yitu. I wouldn’t say that’s it’s an issuer d’rabbanan or not. Maybe not, you can’t make your own gezeiros. Shema yitu is like a gezeirah, but there already you can’t carry because of shema yitu.

The rebuttal:
I must complement Rav Pearl for pointing out Rav Moshe’s gezeirah. Many rabbanim are not acquainted with this chiddush of Rav Moshe’s. However, Rav Pearl’s argument that only in a situation of a gezeirah would Rav Moshe allow an eruv to be erected for a section of a city was fabricated post facto and does not follow. In fact, when Rav Moshe allowed the eruvin in Queens and in Europe to be demarcated with a tzuras hapesach, he did not argue that since these cities are not an issue of a d’Oraysa but only of a gezeirah an eruv can be established (Igros Moshe, O.C. 4:86, 5:28:5). No doubt, even if these cities would have been a matter of a d’Oraysa, Rav Moshe would also have allowed them to be delineated with a tzuras hapeasch, and Brooklyn should be no different.

Moreover, after Rav Moshe set forth that the population of Brooklyn would not allow an eruv to be established for Flatbush (ibid., 4:87), he was informed that the total population of Brooklyn was less than three million, but he nevertheless argued that an eruv should not be established because of his gezeirah (ibid., 4:88). According to Rav Pearl’s argument that only in a situation of a gezeirah would Rav Moshe allow an eruv to be erected for a section of a city, why then didn’t he allow an eruv for Flatbush? This teshuvah of Rav Moshe’s was in reference to establishing an eruv for Flatbush, a small section of Brooklyn, which was only prohibited at this point because of a gezeirah. Consequentially, it is abundantly clear that according to Rav Moshe it is irrelevant if the area in question was a matter of a gezeirah or of a d’Oraysa.

What was the underlying reason why Rav Moshe did not allow an eruv for Boro Park and Flatbush? As I mentioned above, Rav Moshe writes his rationale clearly. He was under the impression that the population of both Boro Park and Flatbush was in excess of shishim ribo; therefore, he did not allow a tzuras hapesach to demarcate these neighborhoods from their borough (ibid., 528:5 and Addendum to O.C. 4:89). Since Rav Moshe was clearly mislead about this matter and the population of both Boro Park and Flatbush is much less than shishim ribo, no doubt he would have allowed an eruv to demarcate these neighborhoods from each other.

In addition, after Rav Moshe stated that his objection to a Brooklyn eruv was because of his gezeirah, he was mislead regarding another matter. Rav Moshe (ibid., the end of 4:88) was informed that besides for Brooklyn’s population of close to three million, more than a million people come into the borough to work and visit (for the source of this misinformation I recommend listening to a recording of the Hisachdus HaRabbanim convention on April 30, 1980 and reading the teshuvah dated July 3, 1980 in Kerem BeYavnah, 3:3 where this misinformation was publicized, as well). Consequentially, Rav Moshe’s objection to an eruv in Brooklyn was a matter of a d’Oraysa. This is clearly not the case and is obviously incorrect. The number of people who actually commute into the borough to work is approximately 235,000 people (NYC Department of City Planning, Table CTPP P-6, 2003); thus, according to Rav Moshe, the total falls far short of the required three million. Additionally, since Brooklyn is larger than twelve mil by twelve mil, we should not include the entire population of Brooklyn towards the tally (approximately 250,000 people should be subtracted from the total). Had Rav Moshe known these facts, he would concur that Brooklyn does not have the status of a reshus harabbim d’ir.

Therefore, to begin with, since Brooklyn is not a reshus harabbim, an eruv for the entire Brooklyn could only be proscribed because of Rav Moshe's gezeirah. Consequentially, even according to Rav Pearl’s erroneous reading of Rav Moshe’s shita, since these neighborhoods in Brooklyn are only a small section of the borough, they could be delineated with an eruv, as well.

Continued here.