Friday, June 17, 2016

Part 1 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

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.  
[2] See note 15 regarding the Tzemach Tzedek.
[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