Tuesday, June 21, 2016

Part 7 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

In summation: 1) Brooklyn would not be classified as a reshus harabbim since there is no street where 600,000 people traverse any section of it on a daily basis.
2) Even if one does not agree that the criterion of shishim ribo is conditional of a street, no part of Brooklyn would be classified as a reshus harabbim since there is no street that is mefulash u’mechuvan on one side to a platya and on the other side to a sratya.
3) Even if one would argue that the criterion of mefulash is only conditional of a walled city and that the criterion of shishim ribo is conditional of a city, nevertheless, the entire borough would be classified as a reshus hayachid me’d’Oraysa since the streets are encompassed (on four sides) by mechitzos habbatim, and, moreover, the borough is bounded on three of its sides by mechitzos which are omed merubeh al haparutz.  
Furthermore, even if one would allege that according to some poskim the above criteria would not remove from Brooklyn the classification of a reshus harabbim,[14] nevertheless, they would have to agree that each issue is still at the very minimum a safek. Consequentially, we are dealing with a sfek sfek sfeika, and we would therefore go l’kula even if the matter was a d’Oraysa.[15] How much more so, according to the Alter Rebbe, once a tzuras hapesach was established the issue would not be a matter of a d’Oraysa only of a d’rabbanan.



It is important to note that the Alter Rebbe maintains (362:19) that one should be stringent and follow the Rambam who considers a tzuras hapesach a valid mechitzah only when utilizing at the minimum two mechitzos which are omed merubeh al haparutz (Shulchan Aruch, O.C. 362:10). Where this is not the case, each pole can be no more than ten amos apart from the other. However, since the proximity of property lots in Brooklyn is such that they are omed merubeh al haparutz particularly the fences that surround the property lots an eruv in Brooklyn could be classified as a Rambam eruv




[14]  Of course, it is always possible to cite shitos yachidos to argue that an area is classified as a reshus harabbim; however, ruling according to shitos yachidos is not the correct approach in halachah. [The Chasam Sofer writes (Y.D. 37) that if we were to collect all the shitos ha’ossrim we would not be able to eat bread or drink water.] Even more so, in hilchos reshuyos and eruvin, since all criteria have to be met for the area to be classified as a reshus harabbim, even if we were to employ a shitas yachid regarding reshus harabbim that would then disqualify the eruv based on only one criterion, the other conditions would not be met and an eruv would be permissible l’chatchilah. Consequently, to invalidate an eruv, one would have to selectively choose from disparate shitos yachidos which in many cases are contradictory and that is an unjustifiable approach to halachah. The reality is that if someone learns hilchos reshuyos and eruvin with an open mind, he would realize that since it is almost impossible to meet all the criteria of a reshus harabbim, creating an eruv l’chatchilah is a real possibility.
[15]  The Tzemach Tzedek states (Eruvin, 5:6) that since shitas Rashi was not accepted by most of the Rishonim and most poskim do not agree that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid, a yorei shomayim should not employ these criteria. However, as I mentioned previously, the Rebbe assumed that we do rely on the criterion of shishim ribo l’chatchila. Moreover, today we know of additional Rishonim and that most Achronim maintain that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid. Consequently, there is no reason not to enact these criteria as a sfek sfeka.
       Furthermore, the Tzemach Tzedek would classify Brooklyn as a reshus hayachid because the streets are not mefulash u’mechavanim on one side to a sratya and on the other side to a platya. Moreover, even if one would argue that the Tzemach Tzedek would categorize our streets as sratyas and platyas, the fact that the borough is encompassed by mechitzos which are omed merubeh al haparutz would classify the city as walled and the Tzemach Tzedek would definitely require the streets to be mefulash u’mechavanim, as well.
Consequently, even if one would argue that these criteria are not applicable, they would have to admit that, at the minimum, the Tzemach Tzedek would accept that these issues are a sfek sfek sfeika, and thus, even (on requirements me'd'rabanan) a yorei shomayim can rely on the fact that Brooklyn would not be classified as a reshus harabbim.