Rebuttal:
Eruv in Crown Heights
According to the Alter Rebbe
Recently Rabbi Eli Tauger translated into English Rabbi
Shalom Ber Levine’s (Hebrew) argument[1]
that, based on the shitos of the Alter Rebbe, Brooklyn is classified as
a reshus harabbim. However, as I will demonstrate, Rabbi Levine
misunderstood and omitted parts of the Alter Rebbe’s and even the Rebbe’s shitos
in eruvin. The Rebbe never claimed
that his issue with eruvin was in regards to reshus harabbim, and
as we will demonstrate, the Rebbe understood the Alter Rebbe’s opinions
otherwise.
What follows is an analysis and a refutation of the entire
translation in a linear fashion.
The argument: There has been much discussion recently
regarding whether it is desirable
to establish an eruv in Crown Heights. Before even entering
into such a discussion, it is necessary to establish whether
it is halachically possible -particularly according to the Alter Rebbe's rulings in Hilchos
Eruvin -to establish such an eruv in this community.
The rebuttal: 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 argument: In his Shulchan Aruch (sec.
364:4), the Alter Rebbe writes:
True, a tzuras hapesach is an
entirely valid partition and if one made [an enclosure by making] a tzuras
hapesach using four poles, it is a private domain in a complete sense according
to Scriptural Law, even if it is constructed in the midst of [an area that is]
a public domain in a complete sense (reshus harabim) .... Nevertheless,
according to Rabbinic Law, a tzuras hapesach is not effective [in creating a
partition] for an area that is a public domain in a complete sense, [i.e.,] it
fulfills all the stipulations for a public domain stated in sec. 345:11 [According
to Rabbinic Law,] one who seeks to make a public domain fit to carry [articles]
within must make actual doors on either side.
Thus, a tzuras hapesach can serve as
a valid divider to enclose areas that are essentially private property but in
which carrying was forbidden because they are used by several families
together, e.g., a courtyard or an alley (a karmelis in halachic
terminology). If, however, one enclosed
an area defined as a public domain with a tzuras hapesach, the enclosure is not
valid according to Rabbinic Law.
The rebuttal: The
above is important to take note of. The Alter Rebbe maintains (and so do numerous
Rishonim and the majority of the Achronim) that a tzuras
hapesach would reclassify a reshus harabbim as a reshus hayachid
and only me’d’rabbanan, is there an obligation of delasos [doors
to close the breaches]. Since the requirement of delasos is me’d’rabbanan,
we can be lenient [safek d’rabbanan l’kulla] and apply any additional heter to
remove the requirement of delasos (Avnei Nezer, O.C. 273:16,
279:2; Kanah V’Kanamon, 5:56; Livush Mordechai, 4:4, and Bais
Av, 2:9:3).[2]
The
argument: B) The
Definition of a Public Domain
In sec. 345:11, the Alter Rebbe defines a public domain as
follows:
“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.
There are authorities who maintain
that any place where 600,000 people do not pass through every day, as was the
situation in the encampment in the desert, is not considered a public domain,
but rather a karmelis.
Based on their words, the custom has
spread throughout these countries to rule leniently and to say that, in the
present era, there is no concept of a public domain in a complete sense. [Those
who accept this leniency] should not be admonished because they have an
authority on whom to rely. (Nevertheless, every G-d-fearing person should be
stringent with regard to his own conduct.)”
Thus, according to the more stringent view, every particular
area is judged according to its own merits:
Is it a public domain -an area used by people at large -or is it like a courtyard or an alley, shared
private property. According
to the lenient view, as long as a city has less
[than] 600,000 inhabitants, it is judged as a whole, without considering the particular nature
of a given area.
The rebuttal: Rabbi Levine omitted in this thesis that Rav Avraham Chaim
Naeh states (Kuntrus HaShulchan, p. 36 note 69) that what is mentioned
in the Alter Rebbe’s Shulchan Aruch, that a yorei shomayim should
be stringent and not rely on shitas Rashi [shishim ribo], was
actually a later addition and not written by the Alter Rebbe himself.
Furthermore, the last paragraph is simply incorrect. It
strains credibility to argue that the Alter Rebbe posits here that the
criterion of shishim ribo is conditional of a city. The Alter Rebbe is
following the words of the Shulchan Aruch and uses the term shishim
ribo ovrim bo b’chol yom [sixty myriads traversing it daily]. The ovrim
bo is clearly referring to the beginning of the seif where the Alter
Rebbe enumerates four domains which, when they satisfy all the criteria of a
public domain, are classified as a reshus harabbim: rechovos [marketplaces[3]
(or according to the Tzemach Tzedek town squares[4])], shvakim [(large) marketplaces], derachim
shovrim b’hen m’ir l’ir [intercity roads], and mavaos hamefulashim
[open-ended alleyways]. Nowhere does the [Shulchan Aruch and the] Alter
Rebbe mention a city in this seif, only marketplaces, alleyways, and
roads. Hence, there is no doubt that when the Alter Rebbe references the
criterion of shishim ribo ovrim bo, he is referring to the myriads
traversing a road or the marketplace itself. Besides for which, the Alter Rebbe
only refers to the people traversing the reshus harabbim and does not
mention city inhabitants. Clearly, a city plays no part in this matter.
The
argument: C)
Whether the Lenient
View Can be Relied Upon According to Lubavitch Practice
In support for the statement, "every
G-d-fearing person should
be stringent with regard to his own conduct," a marginal note appended to the Alter Rebbe's Shulchan
Aruch states: "This is the opinion
of the leading Rishonim and there is a sound basis for their approach because the concept
that 600,000 men [must pass through a place] is not mentioned in the Gemara."
The fact that
the Alter Rebbe accepted the more stringent perspective is reflected
in the fact that, by and large, in Hilchos Eruvin,
he does not mention the more lenient
approach and continually elaborates on the differences between a public
domain and a karmelis.
Whenever he does mention the lenient view, he introduces it with the phrase
יש אומרים, ''there are those who say."
True, in several
places (e.g., sec. 252:18,
20, sec. 266:13, sec. 325:4, sec. 392:1, and sec. 404:2),
the Alter Rebbe mentions
that the custom is to rely
on the more lenient
opinion, but in all those
instances, there are several extenuating circumstance involved. No such statements are made regarding
ordinary circumstances.
The rebuttal: As I mentioned previously, the words yorei shomayim
yachmir are later additions and not from the Alter Rebbe. Furthermore, they
omitted that the Alter Rebbe in the Kuntris Achron (301 note 3; 348 note
1, and 350 note 1), which is considered his final opinion [basrai] on any
matter, mentions the criterion of shishim ribo without qualifiers. Consequently,
there is no doubt that the Alter Rebbe accepted shitas Rashi l’chatchilah,
and would allow that a yorei shomayim rely on the criterion of shishim
ribo (see also KuntresKanah V’Kanamon).
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.
To understand why the Rebbe notated this Bais Av regarding
the number of Rishonim, we have to review the source of the machlokas
regarding the criterion of shishim ribo.
To begin with, it’s important to note that when the Ritva on Mesches
Eruvin was first published in 1729, it influenced many of the poskim
regarding shitas Rashi. The Ritva (59a) argued that most poskim
(Rishonim) disagreed with shitas Rashi. Following this Ritva,
some poskim were reluctant to rely on the criterion of shishim ribo
[e.g. Bais Meir, Mishkenos Yaakov (Mishnah Berurah), and
the Tzemach Tzedek].
The Mishnah Berurah (Biur Halachah, 345:7),
citing the Mishkenos Yaakov, argues that we now know that most Rishonim
do not accept shitas Rashi. Consequently, the Mishnah Berurah maintains
that a yorei shomayim should be stringent and not rely on the criterion
of shishim ribo. The Bais Av disagrees with the Mishnah
Berurah and demonstrates that we currently know that the overwhelming
majority of Rishonim (thirty) uphold shitas Rashi, and that even
a yorei shomayim can rely on the criterion.
Following this, we can say with certainty that the Rebbe’s
notation of the Bais Av was to indicate that we accept shitas Rashi
l’chatchilah. Moreover, today 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.
The
argument: Similarly, the Tzemach Tzedek
writes (Chiddushim 64a): "Great halachic authorities differ with this [lenient
view (the criterion of shishim ribo)]
and it should not be relied on with regard
to a Scriptural prohibition." And in another source (Chiddushim 33c), he speaks
of the marketplace of Lubavitch as being
considered a public domain even though the village was home to no
more than a few hundred
families.
The rebuttal: This entire argument regarding the Tzemach Tzedek
is misleading. The Tzemach Tzedek did not want to rely on the criterion
of shishim ribo at all, because, as I mentioned, he was convinced by the
Ritva’s argument that most poskim did not follow shitas Rashi
(see Tzemach Tzedek, Chiddushim Eruvin, 5:6). Consequently, the Tzemach
Tzedek sought to allow an eruv for the town of Lubavitch by relying
on the criterion of mefulash u’mechavanim m’shaar l’shaar [in order to
be classified as a reshus harabbim, the street would need to be open
and run straight through the city from entrance point to entrance point].
However, the Tzemach Tzedek
posited that in an unwalled city the criterion of mefulash does not
apply to sratyas and platyas since they are inherently a reshus
harabbim because people gather there.
This was the Tzemach Tzedek’s dilemma regarding the
heter for an eruv in the town of Lubavitch. However, this is
beside the point vis-à-vis if the Tzemach Tzedek would classify Crown
Heights as a reshus harabbim. As I will discuss further on, we do not
have the sort of sratyas and platyas in the neighborhood that the
Tzemach Tzedek is referring to. Consequently, the Tzemach Tzedek
would agree that since no street in Crown Heights is mefulash to a sratya
and platya, the neighborhood is not classified as a reshus harabbim.
[Moreover, even if one were to argue that some of our roads are similar to what
the Tzemach Tzedek is referring to, halachically Brooklyn is classified
as walled since it is encompassed by mechitzos; all the streets in the
borough eventually end at a mechitzah, and, therefore, the Tzemach
Tzedek would require our roads to be mefulash u’mechavanim, as well.]
Furthermore, as the Rebbe mentioned, we do accept the
criterion of shishim ribo l’chatchilah (because the majority of Rishonim
agree to shitas Rashi).
Consequently, there should be no doubt that relying l’chatchilah
on the criterion of shishim ribo is an acceptable Lubavitch practice.
[1] In due time, I will refute all of the
arguments Rabbi Levine made in his original Hebrew thesis.
[3] Some poskim
maintain that rechovos [sratyas] are intercity roads. The Alter
Rebbe assumed that rechovos and shvakim are marketplaces [platyas],
since further in the seif he added the classification of intercity
roads. The Bais Ephraim also understood (siman 26 p. 44) that
when the Shulchan Aruch uses the term rechovos and shvakim
it is referring to marketplaces. The Ravyah (Hilchos Eruvin, siman
379); Smak (Mitzvos Hatluyos B’Shabbos p. 296), and the Ritva
(Shabbos 6b) refer to rechovos as marketplaces where people
congregate to buy their wares. It is of interest to note that the Mayim
Rabbim (siman 38) states that a platya in Lashon Kodesh is
called rechov.
[4] The Tzemach
Tzedek (Shabbos, 6a) understands rechovos [sratyas] as
intercity roads or thoroughfares where people congregate on. He cites a Rashi
in Sanhedrin (111b) which mentions that rechovos are inside the
city limits and are places where people congregate, such as town squares. In
truth, an argument can be made that the Tzemach Tzedek like the Alter
Rebbe understood both rechovos and shvakim as a type of
marketplace.
However, it is
incorrect to suggest, as Rabbi Levine does (in his Hebrew thesis), that since
some Rishonim characterize derech hamelech [a main thoroughfare]
as a sratya, the Alter Rebbe and the Tzemach Tzedek when listing sratya
as one of the domains which are inherently a reshus harabbim are also denoting
a derech hamelech. This cannot be accurate, since the Tzemach Tzedek
posits that a sratya is akin to a town square where people congregate
and not just a road [mavoi] which people utilize to traverse the city.
If in fact a stratya includes all roads that are used by the multitudes
to traverse the city, then there would not be any distinction between a sratya
and mavaos hamefulashim.
No comments:
Post a Comment