Monday, June 20, 2016

Part 6 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: G) Conclusions that Apply with regard to Actual Practice
As explained, according to the rulings of the Alter Rebbe and the Tzemach Tzedek, a general eruv encompassing the community as a whole with a tzuras hapesach would not be valid. It is, however, possible to use a tzuras hapesach to make an eruv that encompasses areas deemed as a karmelis. Areas that are deemed public domains according to Scriptural Law could not, however, be included in such an eruv.
Which parts of the community would be deemed public domains? Let us return to the definition of a public domain given by the Alter Rebbe in sec. 345: 11:
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.
He mentions four types of public domain:
a)      Roads -I.e., major arteries of human traffic. Eastern Parkway and Empire Blvd. would certainly be placed in this category.
b)      Marketplaces -Kingston Ave, Nostrand Ave, and Utica Avenue would certainly be placed in this category. After all, the Tzemach Tzedek (Chiddushim 33c) considered the town square of Lubavitch as being considered a marketplace -and therefore a public domain -even though the village was home to no more than a few hundred families.
c)      Thoroughfares that run from town to town -Highways of this nature are not found in our community.
d)      Lanes that are sixteen cubits wide that run from one road to another - Such lanes would not ordinarily be considered as public domains because, in and of themselves, they do not produce a large amount of human traffic. Nevertheless, because they are connected to major roads or marketplaces, it is likely that human traffic from the roads and marketplaces will spill over into them. Hence, they too are deemed public domains.
Most of the streets in the community, Brooklyn Ave, Albany Ave, President Str. Crown Str. Montgomery Str. Etc. would be placed in this category because they run either from Eastern Parkway to Empire Blvd. (from one road to another) or from Kingston to Utica or Nostrand (from one marketplace to another).
In which places could an eruv be constructed using a tzuras hapesach? In the alleys that run behind the homes in the streets between Union and Empire, for these alleyways are not places through which people at large pass.
The rebuttal: Going forward, it is important to keep in mind that the Alter Rebbe maintains that an area encircled with a tzuras hapesach is a reshus haychid me’d’Oraysa, and the obligation of delasos is only me’d’rabbanan. Since the issue is only me’d’rabbanan, we can be lenient [safek d’rabbanan l’kulla] and apply any additional heter to remove the requirement of delasos. This shita of the Alter Rebbe should in its own right have terminated this debate, but the writer of this article chose to be stringent in all matters regarding reshuyos.
To begin with, this entire argument is extraneous. If we maintain, as the writer would have us believe, that the criterion of shishim ribo is conditional of a city, every street in the entire borough would be classified as a reshus harabbim, and no part of the community (besides for some shared alleyways) would be deemed a karmelis. There would be no need to ascertain the classification of each and every road whether it is a reshus harabbim or not. [Nevertheless, even according to the writer, as we mentioned above, Brooklyn would not be classified as a rehsus harabbim since all the streets in Crown Heights, even Eastern Parkway, are not mefulash u’mechavanim on one side to a platya and on the other side to a sratya. Notwithstanding the argument that the criterion of mefulash u’mechavanim is conditional of a walled city, the parkway is halachically classified as walled since it is lined by mechitzos habattim and, moreover, our entire borough is encompassed by mechitzos; therefore, the borough is classified as a walled city.]  
We, however, maintain that shishim ribo is conditional of a street, and therefore we need to explore the categories of public domains, and how they apply to our roads today.
As discussed previously, the Alter Rebbe mentions four domains which, when they satisfy the criteria of a public domain are classified as a reshus harabbim: rechovos [marketplaces (or according to the Tzemach Tzedek town squares)], shvakim [(large) marketplaces], derachim shovrim b’hen m’ir l’ir [intercity roads], and mavaos hamefulashim [open-ended alleyways].
According to the Tzemach Tzedek (Shabbos, 6a), three of the four public domains [rechovos, shvakim, and derachim shovrim b’hen m’ir l’ir], are inherently a reshus harabbim, and in an unwalled city, they would not require the criterion of mefulash to be classified as a reshus harabbim.
Eastern Parkway and Empire Blvd. do not fulfil these three categories. As mentioned previously, they are definitely not a marketplace or an intercity road or a thoroughfare, such as a town square, which was meant for people of the entire city to congregate on. The Ravad writes (Kasev Shom, Eruvin 6a) that only roads which function primarily as sratyas [rechovos] and platyas [shvakim] are classified as such. The fact that at times some roads are used to sell wares or to go from city to city or to congregate on does not make it the roads’ primary function. Eastern Parkway’s primary function is a large local expressway and not an intercity road (it does not lead directly out of the city on either end). Additionally, the purpose of its flanking pedestrian malls is for local people to stroll and relax on, unlike a town square which functions as the gathering place of the entire city.
Kingston Ave, Nostrand Ave, and Utica Avenue, do not fulfil the category of a marketplace.  As mentioned above, we do not have shvakim, marketplaces today as all of our stores are indoors. Even if some streets are lined with stores, this does not halachically classify them as marketplaces. [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, as all the streets in the borough eventually end at a mechitzah, the Tzemach Tzedek would definitely require the streets to be mefulash u’mechavanim, as well.]
Thus, the only domain that all thoroughfares in Crown Heights (even Eastern Parkway) would be halachically similar to is mavaos hamefulashim. Consequently, according to the Alter Rebbe all the roadways in the neighborhood would need to fulfil all criteria of a public domain to be classified as a reshus harabbim. These thoroughfares do not satisfy the criteria of shishim ribo since no street in Crown Heights has 600,000 people traversing (any section of) it daily. Additionally, since we do not have rechovos and shvakim in Crown Heights, the mavaos cannot possibly be mefulash u'mechavanim into any of them; therefore, there is no doubt that the Tzemach Tzedek would not classify any of the roads in the neighborhood as a reshus harabbim.
Moreover, and it is very telling that this issue was omitted from this entire translation,[13] that even if we were to include a road that meets all the requirements of a reshus harabbim, the fact that Brooklyn is encompassed on three of its sides by mechitzos, which are omed merubeh al haprutz [more than 50 percent of the length of each side must actually consist of a wall], the borough would nevertheless be classified as a reshus hayachid me’d’Oraysa according to the Alter Rebbe and the overwhelming majority of poskim (see Map of the Mechitzos Encircling Brooklyn 2).
The argument: As mentioned initially, the purpose of this treatise is not to judge whether or not it is desirable to make an eruv in Crown Heights, but rather to clarify whether making such an eruv is possible according to the halachic tradition of Chabad-Lubavitch.
The rebuttal: As I mentioned previously, 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. Clearly, Rabbi Levine’s entire argument was based on preconceived ideas about large city eruvin, which he then shoehorned in the Alter Rebbe to fit. 

[13]   Rabbi Levine in fact claims in his thesis that Crown Heights is not included in these mechitzos. B’mechilos kvodo, he is simply incorrect, and it seems that he did not even bother to ascertain if the mechitzos encompass Crown Heights. Besides for the fact that we can make use of on four sides mechitzos habbatim (which according to the Alter Rebbe is definitely sufficient), there are mechitzos which are omed merubeh al haparutz that encompass the entire borough.  These mechitzos were ascertained by rabbanim in Boro Park including members of Rav Yechezkel Roth’s Bais Din.