Part 3: Rebuttal of Hagaon Rav Yosef Heller Shlita’s Shiurim on Eruvin

The argument: Reb Shlomo Zalman Auerbach who was himself one of greatest geonim of our times said Reb Moshe is in another league completely than all other contemporary poskim. Reb Moshe could finish the entire mesechta Zevachim on a Friday night after the meal. I saw this myself; I was by him several times.

The rebuttal: This is irrelevant. No one is arguing about the gadlus of Rav Moshe.  The issue is if we follow all of Rav Moshe’s piskei halacha. Rav Shlomo Zalman zt”l was not always in agreement with Rav Moshe’s piskei halacha. Even regarding the criterion of shishim ribo, Rav Shlomo Zalman did not agree with Rav Moshe since it is apparent that he maintained that the criterion is conditional of the street (Minchas Shlomo, 2:35:19). Moreover, Chabad does not follow all of Rav Moshe’s piskei halacha. Why should eruvin be different?

The argument: If someone were to build a proper tzuras hapesach (wire eruv) around a reshus harabim it is only an issur drabanan to carry there (according to some opinions, while others say that it remains an issur d’orasia – Tzemach Tzedek Chidushim Eiruvin and Shut Divrei Nechemya 23). However, to make a proper tzuras hapesach you must know the halachos of eruvin well and you need to check the eruv properly. You cannot just check from a car, you have to walk by foot around the entire Crown Heights (not a short distance). You have to check every single inch of the way to make sure everything is in place. No one is giving testimony that this was done or by whom.

The rebuttal: According to some opinions? This is simply misleading. There is no doubt that the Alter Rebbe maintained that once a tzuras hapesach was established the issue was only a matter of a d’rabbanan. To mention here that it is only according to some opinions is inexcusable.

The Divrei Nechemya’s question if the Alter Rebbe actually maintains that a tzuras hapesach is sufficient on a d’Oraysa level is mitigated by the fact that the Tzemach Tzedek clearly understood that his grandfather upheld as such (Chiddushim, Eruvin, {perek 2:4 and} 59a).[6] [Moreover, the Divrei Nechemya only mentions that he was not sure about the Alter Rebbe’s stance and acknowledged that he said it without fully examining the issue, therefore the Tzemach Tzedek’s testimony definitely stands.]

That the Tzemach Tzedek in the end argued that a yorei shomayim should be stringent and not rely on this shita of the Alter Rebbe does not change the fact that the Alter Rebbe wrote in his Shulchan Aruch, without any qualifiers, that a tzuras hapesach is sufficient on a d’Oraysa level. Moreover, we know today that many Rishonim and most Achronim agree with this shita of the Alter Rebbe. [Furthermore, the Tzemach Tzedek would not classify Brooklyn as a reshus harabbim since no street is mefulash u’mechavanim to a sratya and a platya, and that Brooklyn is encompassed on three of its sides by mechitzos b’ydai adam.]

Rav Heller’s further declarations regarding checking an eruv on foot, is simply unsupported.

The argument: Even if great poskim would come and say that an eruv can be built, Anash are bound by the psak of Alter Rebbe and the Tzemach Tzedek. It’s not enough to say that the Rebbe said not to build, even though that it’s completely true, because they could answer that they’re not so mekushar to follow every hora’a of the Rebbe.

The rebuttal: Anash can rely on the following three reasons why Brooklyn would not be classified as a reshus harabbim: 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, 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.[7] 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.

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[6] Furthermore, it would be a strange dichotomy; some of the greatest Polish and Hungarian poskim [Avnei Nezer, O.C. 283:2, C.M. 107; Prei HaSadeh, 2:81; Zichron Yosef, siman 274, and Mahari Stief, siman 68; see also Kaf HaChaim, O.C. 364:12] made use of the Alter Rebbe’s shita that a tzuras hapesach is sufficient on a d’Oraysa level but in Chabad they understood otherwise. 

[7] 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. 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 (on requirements me'd'rabanan) a yorei shomayim can rely on the fact that Brooklyn would not be classified as a reshus harabbim. 

Part 2: Rebuttal of Hagaon Rav Yosef Heller Shlita’s Shiurim on Eruvin

The argument: The halacha is that one cannot enclose a Reshus Harabim using a tzuras hapesach (a wire eruv), and it requires actual walls. I would like to explain why I hold that Crown Heights is a Reshus Harabim and therefore a tzuras hapesach eruv cannot permit it.

The rebuttal: It’s a shame that such a superficial statement was said from the get go. The Alter Rebbe maintains that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid and only me’d’rabanan is there a requirement of delasos. Not to take this into account from the beginning is simply inexcusable. Moreover, Brooklyn is encompassed on three of its sides by actual walls.

The argument: Many opinions consider a street that is 16 amos wide (24 feet) to be a Reshus Horabim. The Alter Rebbe says (345:11,) that in such a case כל ירא שמים יחמיר לעצמו. For us Chasidim, the Alter Rebbe’s words are enough (the Tzemach Tzedek writes the same in Chidushim on Eiruvin). There are other opinions that there must also be 600,000 people for it to be considered a reshus harabim min hatorah. That exists in Brooklyn. This is the psak of R. Moshe Feinstein and R. Zalman Shimon Dvorkin. Even if you’ll find a contemporary Rabbi who claims otherwise – it is irrelevant. You can always search on the internet and find someone who will give you a heter for anything.

The rebuttal: If the Alter Rebbe’s words are enough for us Chasidim, how then could Rav Heller omit that Rav Avraham Chaim Naeh zt”l states (Kuntrus HaShulchan, p. 36 note 69) that it is probable that the Alter Rebbe never penned the words כל ירא שמים יחמיר לעצמו?[3] Another, glaring omission is that the Rebbe maintained that the Alter Rebbe accepted the criterion of shishim ribo (see Igros Kodesh, Vol. IX, p. 41, 165).  Furthermore, the Rebbe added there that the Bais Av (2:5:3) lists more than thirty Rishonim who accept shitas Rashi. The Bais Av is disagreeing with the Mishnah Berurah and asserts that a yorei shomayim does not need to be stringent. The Bais Av argues that we now know that the overwhelming majority of Rishonim uphold that in order to classify a street as a reshus harabbim it would need to be 16 amos wide and also include shishim ribo traversing therein.[4]

Therefore, even though the Tzemach Tzedek states that a ירא שמים יחמיר [because many Rishonim do not accept shitas Rashi] since the Rebbe maintains that the Alter Rebbe accepted the criterion of shishim ribo for all and that we now know that the majority of Rishonim uphold the fundament of shishim ribo, it would be acceptable for a yorei shomayim to be lenient. Moreover, today with the publication of many more manuscripts of the Rishonim we can say that the Bais Av’s list has been superseded; we now know of over fifty Rishonim (and four Geonim) who accept the criterion of shishim ribo (mostly of Ashkenazic origin) and thirteen who do not (all of them of Sefardic origin). Thus, there is no doubt that a yorei shomayim can rely on shitas Rashi l’chatchilah.

Rav Heller declares, without delving into the matter, that the criterion of shishim ribo is satisfied in Brooklyn, and that this is the p’sak of Rav Moshe and Rav Dvorkin.

However, even if we were to accept that the kol korei which Rav Dvorkin signed on to is legitimate, the kol korei does not give any reason for opposing an eruv in Brooklyn. Who says that Rav Dvorkin signed because he supposed that the borough was classified as reshus harabbim of shishim ribo?

Regarding Rav Moshe’s opinion, even if Rav Moshe issued a p’sak, there is no doubt that his understanding of the criterion of shishim ribo differed greatly from the Alter Rebbe.  While the Alter Rebbe maintained that shishim ribo is conditional of the street (see the Alter Rebbe’s Shulchan Aruch, 363:44) Rav Moshe upheld that it is conditional to an area of twelve mil by twelve mil (Igros Moshe, O.C. 1:139:5). Therefore, it is difficult to understand how Rav Moshe’s shita can obligate Chabad.

Moreover, notwithstanding the claim of the Flatbush kol korei, Rav Moshe never issued a p’sak din barur regarding Brooklyn, since his chiddush ¾ which he admitted was not the simple reading of the Shulchan Aruch (ibid., 1:139:5) ¾ was not mentioned in the Achronim, and moreover, it was obvious that the Aruch HaShulchan would not agree with him (ibid., 4:87).

Consequently, even Rav Moshe would admit that it not just, “someone from the internet who will give you a heter,” to establish an eruv in Brooklyn since as Rav Moshe admits [and the overwhelming majority of Achronim concur] the simple understanding of the Shulchan Aruch is that the criterion of shishim ribo is conditional of the street, and there is no street in Brooklyn where 600,000 people traverse any section of it on a daily basis.[5]

I should add that since Rav Heller cites Rav Shlomo Miller, he should know that Rav Miller maintains that the parked cars themselves serve to minimize the width of the roads, and therefore, the streets are possibly not considered 16 amos wide (see The Laws of an Eruv, p. 60 note 55).

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[3] Of course some are going to argue that since Rav Naeh states that the phrase כל ירא שמים יחמיר לעצמו was added by the brother [Maharil] of the Alter Rebbe, it would obligate those in Chabad to follow this dictum. However, this is missing the point. If the Alter Rebbe did not write this phrase himself, it indicates that he was not of the opinion that it was incumbent on all to be stringent regarding the criterion of shishim ribo. Rav Naeh suggests that if the Alter Rebbe’s brother was the one who added this phrase, it is probable that the Maharil saw this stringency in the Alter Rebbe’s household (and that is possibly why it may be notated in his ksav yad of the Alter Rebbe’s Shulchan Aruch), but this does not sanction that this stringency is for all yorei shomayim to follow (with this argument Rav Naeh answers why the Alter Rebbe in his Kuntres Achron, 252:2 only mentions that there are those who are stringent and, like the Taz, does not use the phrase, “all yorei shomayim should be stringent on themselves”). [It is well known that not all insertions made by the Maharil where accepted in Chabad; for example, see Siddur Rabbeinu HaZakan, p. 624. Furthermore, there are stringencies that were condoned in the Bais Harav but were not suggested for all; for example see Sefer HaMinhagim, p. 74 note 8.] I have also seen an argument that the fact that the Tzemach Tzedek cites his grandfather as upholding this stringency demonstrates that it must have been written by the Alter Rebbe. However, this is fiction. The Tzemach Tzedek does not write that his grandfather penned the phrase כל ירא שמים יחמיר לעצמו. The Tzemach Tzedek argues for this stringency from his personal opinion. On the contrary, the fact that the Tzemach Tzedek does not cite his grandfather on this issue is proof that Rav Naeh is correct to say that this phrase was penned by someone else.        

[4] Of course, there are those who would argue that the Rebbe only mentioned that the Alter Rebbe upheld the criterion of shishim ribo, but the Rebbe never said that a yorei shomayim does not need to be stringent. These arguments are suggested by those who made up their minds prior to learning through the inyan. The Rebbe penned these ha’aros on Rav Tzvi Eisenstadt zt”l kuntres; the Rebbe added that the Alter Rebbe should be included with the other Achronim who paskend like shitas Rashi. The Bais Av that the Rebbe cited here was arguing with the Mishnah Berurah who admitted that the minhag was to follow shitas Rashi, but since most Rishonim do not accept the criterion, a yorei shomayim should be stringent. However, the Bais Av argues that the Mishnah Berurah is incorrect since the majority of Rishonim [and Geonim] accept shitas Rashi, hence even a yorei shomayim does not need to be stringent [and like the Taz states (345:6) of course one can always be machmir, but it is not a matter of yiras shomayim]. Therefore, if the Alter Rebbe actually penned this stringency, the Mishnah Berurah’s shita would be similar to the Alter Rebbe’s shita. Consequently, the fact that the Rebbe did not indicated here that unlike the Bais Av the Alter Rebbe would agree with the Mishnah Berurah that a yorei shomayim should be stringent, demonstrates that the Rebbe maintained that the Alter Rebbe would not require that a yorei shomayim needs to be stringent (either because the Alter Rebbe never penned these words or because we now know that the overwhelming majority of Rishonim uphold shitas Rashi).

[5] Furthermore, if we explore Rav Moshe's personal reservations regarding establishing an eruv in Brooklyn, we see that it is apparently based on misinformation which was provided to him at the time such as Brooklyn has more than three million residents over a twelve mil by twelve mil area (Igros Moshe, O.C. 5:28:5, 5:29), [the population required to classify the area as a reshus harabim of shishim ribo, according to Rav Moshe] while in fact, according to census figures, the entire Brooklyn [which is larger than twelve mil by twelve mil (ibid., 4:87-4:88)] only has 2,504,700 residents.

Additionally, Rav Moshe wrote (ibid., 5:28:5) that he was not certain if Brooklyn was bounded by mechitzos [if Brooklyn was encompassed by mechitzos, it would not be classified as a reshus harabim d'Oraysa (Ibid., 1:139:3)]. In fact, it has been established that Brooklyn is encompassed by man-made mechitzos on three of its sides; hence, an eruv can be erected in any part of Brooklyn even according to Rav Moshe’s shita (these mechitzos were confirmed by the following rabbanim: Members of Hagaon Harav Yechezkel Roth shlita’s Bais Din (see Emek HaTeshuvah, 5:19); Hagaon Harav Shlomo Gross shlita, Belzer Dayan of Boro Park, and Hagaon Harav Tuvia Goldstein zt”l sent a select group from his kollel Emek Halacha).

Part 1: Rebuttal of Hagaon Rav Yosef Heller Shlita’s 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 contention 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, Shabbos 6a). 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; HaPardes, 33rd year, vol. 9, and see here), 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, as well.

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.

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[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, 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 an 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.).

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 ― an eruv in Brooklyn could be classified as a Rambam eruv. 

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[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 (on requirements me'd'rabanan) a yorei shomayim can rely on the fact that Brooklyn would not be classified as a reshus harabbim.

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. 

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[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.

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[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.