Wednesday, June 19, 2019

Part 6 - Lakewood Eruvin: The Truth

Section Two

What Follows is an Analysis and a Refutation of the Entire Eiruvin in Lakewood Kuntres in a Linear Fashion

1 š

The Kuntres: Introduction  ̶̶  The term “eiruv" is used colloquially to refer to the enclosure that is constructed around a given property, or community, to allow people to carry on Shabbos.
Rebuttal: Actually, the Gemara (Eruvin, 6a) calls a tzuras hapesach an eruv, so it’s not just a colloquial term [see also the Piskei Rid (Shabbos 6a) for further proof that the term eruv applies to the physical construct, as well].

The Kuntres: Most often, an eiruv is constructed using pre-existing mechitzos (proper walls) such as actual walls and fences, or the sides of buildings. An eiruv can then be completed with “"tzuros hapesach", the familiar posts and crosswires. Large eiruvin generally use tzuros hapesach extensively in order to create the necessary enclosure.
Rebuttal: The idea of using pre-existing mechitzos is for reasons of convenience and halachah (the more mechitzos that are used, the fewer tzuras hapsachim are needed).  

The Kuntres: Recently, there has been a movement in our town - Lakewood, NJ - to join together existing local eiruvin, in order to create larger more convenient eiruvin.
Rebuttal: It is not just for convenience, as the Baal Hakuntres admits later on that those who support a larger eruv set forth a list of arguments why a community eruv is preferable.  

The Kuntres: All agree that constructing a large eiruv often involves much more serious halachic issues, than a small eiruv. There are several serious issues that are common to virtually all large eiruvin, and we will mention them later in this essay.
Rebuttal: The use of the term “large eruv,” in the Eiruvin in Lakewood Kuntres is deceptive. Even a community wide eruv in Lakewood does not include the so called, “halachic issues” of eruvin in large cities. As a matter of fact (see Section One; 3:2:2, 3:3:4, and 5:1), a community eruv in Lakewood shares the same issues as the smaller neighborhood eruvin (see the preface regarding why the Baal Hakuntres would rather not talk about this issue). 

The Kuntres: However the most severe one, is the fact that a large eiruv invariably encompasses streets that are wider than 16 amos, that are mefulash [open on both ends], and are used as a thoroughfare.
Rebuttal: This statement is misleading. In fact, many of the neighborhood eruvin share the same particulars with the larger eruv.  

The Kuntres: {Footnote 1 - A thoroughfare street is a street that is used - to some degree - by the general population of the town, as a route of travel around town, rather than being just a route that is used exclusively for access to the residences that exist on that street [An extensive discussion of this matter, is beyond the scope of this essay, For some source material, see ספר נתיבות שבת פרק כ"א הערה צ', וע"ע ספר בית מאיר סוף סימן שס"ג].}
RebuttalThis definition of a thoroughfare that the Baal Hakuntres is suggesting is nonsense. His argument that a thoroughfare, a route of travel around town rather than a local street, would halachically be classified as a sratya [and would classify all roads that connect to it as a reshus harabbim, as well] is in opposition to the overwhelming majority of Rishonim who maintain that a sratya is only an intercity road (see more in note 6).  While the Baal Hakuntres wrote an extensive excursive on this issue (in his Kuntres HaDoreshes Masa'as Shabbos, vol. 2), his diyukim are dubious. Furthermore, while the Baal Hakuntres may be correct that some poskim would allow that a mavo mefulash, which only the benei hamavo traverse therein [he missed that some of the Rishonim also suggest this argument], would not be classified as a reshus harabbim [hence, those eruvin that only encompass a development would not be deemed a reshus harabbim even according to the poskim who do not want to rely on the other criteria of a reshus harabbim], it is irrelevant. The fact is almost all of the neighborhood eruvin (especially those in Lakewood proper) include roads that are not only traversed by the benei hamavo, and therefore, these eruvin would need to rely on the other criteria of reshus harabbim, as well. [In any case, there is no clear proof what Rav Aharon would uphold regarding this matter.] 

The Kuntres: Such streets are classified by many Rishonim as a reshus horabbim de'oraysa
Rebuttal: As we shall see further on, the Baal Hakuntres is referring to the criterion of shishim ribo not being accepted by many Rishonim.  Nevertheless, the fundament of 16 amos would not be sufficient to classify the street as a reshus harabbim, since the streets are not mefulash u’mechuvanim (see Section One 3:2:2). Moreover, the overwhelming majority of Rishonim do uphold the criterion of shishim ribo (see Section One 3:3:2).

The Kuntres: [This is also the primary opinion brought in Shulchan Aruch (ס"ז שו"ע סימן שמ"ה)].
Rebuttal: Actually, many [if not most] poskim maintain that the Shulchan Aruch does uphold shishim ribo as a criterion of a reshus harabbim (see note 14).

The Kuntres: According to the psak of Shulchan Aruch [שו"ע או"ח שס"ד ס"ב], a reshus harrabim de'oraysa cannot be enclosed with an eiruv enclosure that uses tzuros hapesach. Thus, according to these Rishonim and the primary opinion of the Shulchan Aruch, such eiruvin are not valid [i.e. according to their opinion, carrying in these streets on Shabbos, even when enclosed by a tzuras hapesach, involves an issur de'oraysa].
Rebuttal: Actually, according to the understanding of most poskim (see note 3), the Shulchan Aruch maintains that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid [however, me’d’rabbanan there is s requirement of delasos], and many Rishonim (Tosfos, Eruvin 22a; {and according to some} Rambam, Shabbos 17:10; Hagaos Ashri, Eruvin 20b; and l’shitas Chachamim, Rashba, and Ran, Eruvin 22a) uphold this as well. Accordingly, there is no issur d’Oraysa [since the matter is only d’rabbanan, we can be lenient and apply any additional heter to remove the requirement of delasos]. 

The Kuntres: {Footnote 2 - Carrying in the rest of an "eiruv" that includes these streets would be prohibited m'derabbanan.}
Rebuttal: As mentioned above, according to most poskim, the matter is only a d’rabbanan even for a reshus harabbim proper since a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid.

The Kuntres: However, there are also many Rishonim who rule, that in order that a street be classified as a reshus harrabim de'oraysa, it would need to service shishim ribo ̶ a traffic load of 600,000 travelers. [This opinion is also brought in Shulchan Aruch as a "yesh omrim", a secondary opinion.]
Rebuttal: As I mentioned, the overwhelming majority of Rishonim maintain that shishim ribo is a criterion of a reshus harabbim (more than 70 accept the criterion and only 13 clearly do not). [Even though the Shulchan Aruch cites the criterion of shishim ribo as a yesh omrim, many  ̶  if not most  ̶  poskim maintain that the Shulchan Aruch does accept the criterion l’chatchilah; see note 14.]

The Kuntres: According to this opinion you can enclose any street that does not service 600,000 people with a tzuras hapesach.
Rebuttal: Notice the use of the word “service.” In fact, there are almost no poskim of stature who posit that it is sufficient to classify a road as a reshus harabbim if the street only services 600,000 people.  Most poskim uphold the simple meaning of the Shulchan Aruch, shishim ribo ovrim bo – 600,000 people would actually need to traverse a road in order for it to be classified as a reshus harabbim (see ad loc note 17). 

The Kuntres: {Footnote 3 - This would seem to apply to every street in Lakewood with the possible exception of Rt. 9. It is important to clarify, that question of whether Rt. 9 "services" 600,000 people, does not depend on clarifying the exact number of cars that use it daily. Rather it depends on the halachic definition of "a road that services 600,000 people". This discussion is beyond the scope of this essay. [There is also a possible exception regards to streets that are used to travel from city to city. This point will be elaborated upon later in this essay].}
Rebuttal: It is only beyond the scope of this essay because it is also beyond the pale. Arguing that the criterion of shishim ribo is defined as a street that services 600,000 people is based on a faulty reading in the Bais Ephraim and some Rishonim. Since the Shulchan Aruch uses the term shishim ribo ovrim bo, it implies a thoroughfare in continuous use and not merely the presence of 600,000 people in the vicinity who would have the ability to utilize the street. It would be prudent for the Baal Hakuntres, and the Chevrah Hilchos Issurei Eruvin, to humble themselves and admit that the Gedolie Haposkim (see ad loc note 17) understood these Rishonim as requiring that shishim ribo actually traverse the road. The only question regarding the Bais Ephraim and these Rishonim is whether the requirement of shishim ribo traversing the street is every day or would most days suffice.  If the road only serviced shishim ribo but on no occasion had shishim ribo traversing it, the street would not be classified as a reshus harabbim. Hence, the argument that Rt. 9 should be classified as a reshus harabbim because it services shishim ribo, is nonsense. 
[Regarding if an intercity road requires shishim ribo, the overwhelming majority of Rishonim and poskim maintain that it does (see more about this further on; see also note 18).]
Furthermore, even according to this faulty argument, it is mindless to claim that the mere presence of 600,000 people in the vicinity of the street would classify it as servicing shishim ribo. If people from the vicinity rarely utilize the street, why should they ever be included in the tally? At the minimum, those included in the tally would need to be making use of the road on a fairly constant basis. Consequently, even according to this fallacious claim, Rt. 9 would not be classified as a reshus harabbim, since there are nowhere near 600,000 people who utilize the road on a constant basis.  

The Kuntres: Proponents of larger eiruvin in Lakewood contend that larger eiruvin are preferable even though they must rely on the lenient view, based on the following arguments:
Rebuttal: This is an instance where the Baal Hakuntres is megala tefach u’mechasah tefachayim. If we do not follow the minhag of relying on the criterion of shishim ribo [and mefulash u’mechavanim, as he argues further on] then many of the neighborhood eruvin would be invalid, as well [since they cross over sixteen amos wide streets]. This is an uncomfortable fact for the Baal Hakuntres [since most people rely on these eruvin, and so, no doubt, they are here to stay].

The Kuntres: 1) The construction of a large eiruv will remove a common "stumbling block" in our town that affects many people. One can easily go beyond the boundaries of the small neighborhood eiruvin inadvertently. This will not happen in a larger eiruv. Therefore, it would seem prudent to rely on the lenient opinion, rather than to run the above risk.
Rebuttal: Actually, this is a major issue in Lakewood. Not only do people inadvertently carry out of the boundaries of neighborhood eruvin, people carry between neighborhood eruvin, and unfortunately there is no eruvei chatzeiros enacted between these eruvin. Hence, an all-encompassing eruv is a great idea that should be encouraged.  I reiterate, these are not lenient opinions, but only halachah p’suka.

The Kuntres: 2) Constructing an eiruv that will incorporate thoroughfare streets that are 16 amos wide, has been the traditional and established practice of the great Torah giants of yesteryear. Virtually all communities in pre-war Europe, which were, as we know, guided by revered Gedolim, had a minhag to construct large eiruvin based on the assumption that the streets are not considered a reshus harabbim. Shall we then claim to be greater than world Jewry in the past generations? Is our generation more advanced than they were in Torah scholarship and Fear of Heaven?
Rebuttal: This is correct, and all the diyukim in this Kuntres trying to distinguish our era from the previous one, are just that, diyukim and [many times] are far from the truth.  Besides for the fact that almost every town in pre-war Europe had eruvin, large cities such as Warsaw, Lodz, and Odessa established eruvin. Furthermore, currently all cities and towns in Eretz Yisroel have erected eruvin.  Why should Lakewood be different? 

The Kuntres: 3) Proponents of the larger eiruvin put forth a final argument: No one is being forced to rely on any eiruv, large or otherwise. Certainly, "a yarei Shamayim should conduct himself stringently in this matter'' (Mishnah Berurah to 345:7 in Biur Halacha). Nevertheless, the Mishnah Berurah states (ibid., and in siman 364) that "we haven't the authority to protest against those who act leniently." Thus, it is incumbent upon the community to allow for the construction of a large eiruv, as per the established custom in Europe, for the benefit of those who wish to rely on such an eiruv, and those who wish to be stringent, are welcome to build smaller mehudar eiruvin.
Rebuttal: As is evident from the Baal Hakuntres’s refutation later on of this contention, he has no answer to this argument. His rebuttal demonstrates that he is seeking to minimize eruvin to any extent possible. More so, there is no reason for a yirei shomayim to be stringent since we can rely on the criterion of mefulash u’mechuvanim, and shishim ribo [either because it is the minahg or because most Rishonim uphold this fundament]. Furthermore, once a tzuras hapesach has been erected, [according to most poskim] since the requirement of delasos is me’d’rabbanan, we can be lenient [safek d’rabbanan l’kulla] and apply any additional heter to remove the obligation of delasos.
In fact, the community wide eruv and the neighborhood eruvin both have to rely on the criteria of mefulash u’mechavanim or shishim ribo. Hence, if a yirei shomayim believes that he cannot rely on the community eruv, he should not rely on the neighborhood eruvin either.

The Kuntres: Questions to Address
1) Is it reasonable to compare the standard practice of the pre-war European communities constructing large eiruvin, to our current circumstances in modern day Lakewood?
Rebuttal: As we shall see, there is no difference between our era and the previous one. All the Baal Hakuntres’s chilukim are hevel.

The Kuntres: 2) Is there indeed a clear and universally established minhag in Klal Yisroel to fully rely on the lenient view, that only streets that service 600,000 people constitute a reshus horabbim?
Rebuttal: The question should be if the established minhag is to rely on the view that shishim ribo would actually need to traverse the street in order that it be classified as a reshus harabbim.  As I mentioned, there are almost no poskim of stature who would agree that the criterion is conditional of shishim ribo servicing the street. Oh, and yes, there is no doubt that we can rely on the criterion of shishim ribo l’chatchilah, since it is halachah p’suka.

The Kuntres: 3) 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?"
Rebuttal: No, there is no other side. This argument proves that this entire debate is not l’shem shomayim but is only about minimizing the number of eruvin. If one wants to be machmir, then tavo alav brachah, but the reasons to be stringent are so tenuous that it defies logic to require that the entire community follow suit. The only reason to resist the establishment of a community wide eruv is the desire for control.

The Kuntres: 4) Can we say that the benefits of a large eiruv in Lakewood today over smaller eiruvin, outweigh the halachic risks?
Rebuttal: There are no risks, only established halachah p’suka. There is no difference between the large and small eruvin, l’halachah, and as I mentioned in Section One, there are numerous benefits to a community wide eruv.

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Part 4.2: Commentary on Eruvin Shiurim by Rabbi Shraga Kallus

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