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.
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