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).
[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).
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