Monday, June 20, 2016

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.

[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.