Friday, June 21, 2019

Part 11 - Lakewood Eruvin: The Truth

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The Kuntres: The Reality in Lakewood Today
Considering what we have seen, let us revisit the question: "Can the minhag in pre-war Europe encouraging the construction of a large eiruv, serve as a clear agreed upon precedent to our situation in Lakewood today?"
An honest observer, cannot ignore the following two points: A) The hardships that can affect a city without a large eiruv are not present in today's Lakewood, nor is there a concern that our community will succumb to temptation and be mechalel Shabbos, chas ve'sholom, if a large eiruv is not constructed. Even the "temptation" of bygone years to lock one's home and carry one's house key is largely a relic of the past. In Lakewood's many completely religious neighborhoods, many people are comfortable leaving their homes unlocked during the day; in addition, many people have "Shabbos locks" on their doors.
Rebuttal: As we wrote in Section One, the Perishah and the Chasam Sofer are still pertinent today. We also explicate additional motives why a community wide eruv would be ideal and should be encouraged. Furthermore, there is reason to believe that even Rav Moshe would agree that the construction of an eruv in Lakewood is meritorious. Most importantly, there is no halachic reason not to establish a large community wide eruv.  

The Kuntres: B) Furthermore, the snifim that we have seen in the above Poskim do not apply in Lakewood today:
Rebuttal: As we shall see, this is not entirely correct. However, we do not need to rely on snifim; we have two criteria that would allow a community wide eruv l’chatchilah, just as they allow the smaller neighborhood eruvin. 

The Kuntres: 1. Rightful Public Access
Our roads are public areas, that are not properly "owned" by any individual, or even any government entity. Anyone who is legally allowed into the United States has automatic legal access to any public road, street or highway.
Rebuttal: As I mentioned, this is not at all clear as the Baal Hakuntres is suggesting. In any case, there is no difference between the neighborhood eruvin and a community wide eruv, regarding this issue.

The Kuntres: {Footnote 4 - Even federal and local governments are severely limited in their power to restrict travel [see the decision of the Third Circuit, in Lutz vs. City of York, 899 F .2d 255 (3d cir. 1990).}
Rebuttal: This footnote is simply inane (notwithstanding the seemingly erudite citation). The fact is the government retains the right to close streets when they want to (police powers). They also have rights to change the roads when they feel a need to. This power is more than sufficient to deem government agents halachically as baalim.  Moreover, any sixteen amos wide street would share this issue; hence, there is no difference between the neighborhood eruvin and a community wide eruv.

The Kuntres: 2. Wagon Breaching
Th Beis Ephraim's suggestion that vehicular traffic does not create a "bitul mechitzah" is based on the fact that those seated in the wagons of his day were seated higher than ten tefachim. This is not the case with our modern day vehicles. With the exception of commercial trucks and buses, and some larger vans, the passengers in the great majority of our cars are seated within ten tefachim of the ground.
Rebuttal: As we mentioned previously, there are three independent rationales why traffic does not nullify a tzuras hapesach according to the Bais Ephraim. The tzuras hapesach is not breached when: 1) The traffic is traversing above the first ten tefachim of the ground. 2) The traffic is travelling in a reshus hayachid (this is also the argument of the Yeshuos Malko, siman 26-27). 3) The traffic consists of pedestrians (holchei regel; this is the approach of the Maharsham, 1:162 in his understanding of the Bais Ephraim). Numbers two and three are pertinent to vehicles as much as they apply to wagons.
Furthermore, most poskim maintain that the occupants of a car are not tallied in the shishim ribo, either because of rationale two or three. So, yes, we can rely on this snif if we choose to, just as the Bais Ephraim suggested for his times.

The Kuntres: 3. Mefulash
Many roads in our cities meet the criteria of mefulash, The Rosh Yeshivah, zatzal, notes that as well, as mentioned above.
Rebuttal: As mentioned previously, the criterion of mefulash is not a snif but only a fundament of a reshus harabbim. In any case, the poskim do not agree with the Rosh Yeshivah (such as the Magen Avraham, Olas Shabbos, Tosfos Shabbos, Elya Rabbah, Prei Megadim, Shulchan Aruch Harav, Mishnah Berurah, and Aruch Hashulchan), since these poskim assert that mefulash m’shaar l’shaar infers mefulash u’mechavanim m’shaar l’shaar. This is clearly in opposition to the Rosh Yeshivah, as he argues that the criterion of mefulash is distinct from the added requirement of mechuvanim which is only conditional of mechitzos, a walled city. [The Baal Hakuntres, in his Kuntres HaDoreshes Masa'as Shabbos, vol. 2, attempts to fit the Rosh Yeshivah’s interpretation of the criterion of mefulash u’mechavanim into the words of the Magen Avraham. However, he is unconvincing. The notation of the Magen Avraham on the words mefulash m’shaar l’shaar: pirush mefulash u’mechavanim m’shaar l’shaar is explicating that the word mefulash indicates mechuvanim; thus if mefulash is required, shearim mechuvanim would also be mandatory even if the city is not walled. This is clearly in opposition to the Rosh Yeshivah’s reading of the criterion of mefulash u’mechavanim since he accepts that mefulash is a criterion of a reshus harabbim, but the added requirement of mechuvanim is only conditional of mechitzos, a walled city.]
Furthermore, the Rosh Yeshivah’s teshuvah is unfinished. Moreover, when the Baal Hakuntres deems it worthy, he cites Rav Shlomo Dovid Kahane (to prove that the heter in pre-war Europe was not only because of shishim ribo), but then he omits the fact that Rav Shlomo Dovid Kahane would allow our eruvin because there is no difference between our streets and Warsaw as they both do not meet the criterion of mefulash u’mechavanim. This demonstrates that the debate is not about halachah but only about thwarting any additional eruv.

The Kuntres: 4. Sixteen Amos Wide
Virtually all modern day streets, and specifically the streets of Lakewood, are wider than 16 amos, even according to the larger shiur of the Chazon Ish.
Rebuttal: And that includes many of the roads in the neighborhood eruvin. So if neighborhood eruvin are allowed, so too is a community wide eruv.

The Kuntres: To summarize, 1) In the absence of a truly pressing need, and in the absence of the mitigating factors mentioned in the Poskim, it is difficult to say that the practice of constructing a large eiruv would be encouraged today, especially where smaller eiruvin that meet a far better halachic standard are a viable option.
Rebuttal: This is incorrect. The community wide eruv of Lakewood would halachically be considered, “smaller eiruvin,” and are no different than neighborhood eruvin.  

The Kuntres: 2) The clear directive of, the Shulchan Aruch Harav, Chayai Adam, Kitzur Shulchan. Aruch, and Mishna Brura is, that "a G-d fearing person should be stringent in this matter". It is worthwhile to note, that this directive was given even in Europe when this presented great difficulty.
Rebuttal: As mentioned previously, this is incorrect. The Shulchan Aruch Harav did not write, "a G-d fearing person should be stringent in this matter.” In any case, these poskim would probably admit that since today the overwhelming majority of Rishonim maintain that shishim ribo is a criterion of a reshus harabbim, we uphold this fundament l’chatchila. Moreover, according to these poskim we can rely on the criterion of mefulash u’mechavanim l’chatchilah.

The Kuntres: Let us now go back to the last two questions raised in the beginning of this essay.
1) Is there another side to the question of "What could be wrong with making an eiruv available to the general public, when individuals who wish to be machmir can do so for themselves?"
2) Can we say that the benefits of a large eiruv in Lakewood today over smaller eiruvin, outweigh the hnlachic risks?
Rebuttal: Pay attention to this argument from the Baal Hakuntres; his hemming and hawing illuminates the weakness of his rejoinder.

The Kuntres: Many are of the opinion that a community stance against the eiruv is unwarranted since those who do not wish to rely on the eiruv can be machmir for themselves. In truth, however, it is worth noting, that a large eiruv that is rejected by a large segment of the community, can lead to a set of problems that need to be considered.
Rebuttal: This is a straw man’s argument. To begin with, the Baal Hakuntres created the problems, and then he argues that the eruv is rejected by a large segment of the community. Do not create problems, and then no one will reject the eruv. In any case, as we shall see, there really are no problems to talk about.   

The Kuntres: Here is one common scenario. Every Shabbos in Lakewood, bli ayin hora, there are countless family simchos where entire extended families come together for Shabbos. Of course, hosting scores of guests at one home is not practical, and the standard practice is to place one's Shabbos guests at various homes near the home of the ba'al simchah.
In a community that has a large eiruv that is not universally accepted, it is common for some members of a family to rely on the eiruv, while others do not. If the ba'al simchah is one of the former, he will oftentimes make his guests' accommodations accordingly, placing people with babies, etc., in places where they will have to use the eiruv to join the simchah. Thus, those who wish to be machmir can find themselves faced with a difficult choice; either they must refrain from joining in their close relative's simchah, or they must run the risk of causing a "mini-machlokes" in their own families over the eiruv. Very often, in order to maintain peace, the machmirim are forced to lower their own standards, and to carry in the large eiruv.
It is easy to visualize other scenarios that will invariably come up when a community-wide eiruv is not universally accepted. This can cause conflicts within the community, and can cause a situation in which people are forced to lower their standards on serious halachic issues.
Rebuttal: If people are so weak that they, “lower their standards on serious halachic issues,” then maybe there is no difference after all between pre-war Europe and contemporary Lakewood.
In any case, this entire rejoinder is illuminating. It is those who oppose eruvin who are usually vocal about their beliefs since they do not accept the fact that others disagree with their opinions. On the other hand, those who make use of the eruv just want to be allowed to carry and go on with their lives. No one who utilizes an eruv would be mocheh if one does not make use of the eruv. On the contrary, they would accept the fact that there are dissenters and gladly accommodate those who are machmir.  No doubt, if the situation was reversed, the baal simchah who was opposed to the eruv would not allow those who utilize the eruv to do so for his simchah.
As it is doubtful that the Baal Hakuntres did not realize the above, it is evident that he is concerned that those who are sitting on the fence may come to the realization that there is on whom to rely and make use of the community wide eruv.

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