The Kuntres: The second question we raised - 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: I reiterate, the criterion of shishim ribo is conditional of 600,000 people traversing a street, and not merely that the roads have the ability to service shishim ribo. And yes, we do rely on the criterion l’chatchila. The overwhelming majority of Rishonim and Achronim accept the fundament of shishim ribo as a criterion of a reshus harabbim (see note 12), and it is our minhag as explicated by the Bais Ephraim.
The Kuntres: A Closer Look at the Halachic Reasoning Behind the Minhag in Europe
Let us take a closer look at the common European practice of constructing large eiruvin. Many people assume that this practice was based on one particular halachic issue, namely, the definition of what constitutes a reshus harrabim. To reiterate, many Rishonim are of the opinion that a reshus harrabim is defined as any street that is 16 amos or wider, and that is mefulash [open on both ends].
Rebuttal: This is halachah p’suka. We do not follow the minority opinion of Rishonim that do not uphold the criterion of shishim ribo, either because the majority of Rishonim maintain that it is a criterion of a reshus harabbim or because the minhag was to uphold the fundament.
The Kuntres: Many other Rishonim maintain that a reshus harrabim must also service shishim ribo- 600,000 people. As mentioned above, the Shulchon Aruch favors following the stringent opinion.
Rebuttal: It is not many Rishonim but the overwhelming majority of Rishonim who uphold the criterion. Many poskim disagree and argue that the Shulchan Aruch does accept the criterion l’chatchilah. Moreover, the Rama clearly upholds the criterion of shishim ribo l’chatchilah. We follow the Rama.
The Kuntres: However, people are of the understanding, that once this halachic impediment is circumvented- in other words, once a halachic decision is made to rely on the lenient opinion- the construction of a large eiruv is a halachically encouraged and unquestionable endeavor, according to all Poskim.
Rebuttal: No, this is not a misunderstanding at all. Once we accept any of the criteria as halachah p’suka, since it is upheld by the majority of Rishonim and Achronim, an eruv is encouraged according to them. We do not need unanimity on the matter; the majority or minhag is what we follow.
The Kuntres: However, if we take a closer look at the rulings of the great Poskim of yesteryear, two important points will be noted. A) Many great Poskim state clearly, that although there is room to be lenient in this matter, "a G-d fearing person shall be stringent". This directive is mentioned by most leading Poskim who were considered the final word in halacha in Europe. This list includes 1) The Shulcn.n Aruch Harav [סימן שמ"ה], 2) The Chayai Adam [[סימן מ"ט, 3) The Kitzur Shulchan Arucli [סימן פ"א], and 4) The Mishna Brura [בביאור הלכה סימן שמ"ה ס"ז]
Rebuttal: The Shulchan Aruch Harav should not be included in this list. Rav Avraham Chaim Naeh zt”l states (Kuntrus HaShulchan, p. 36 note 69) that it is likely that the Rav never penned the words כל ירא שמים יחמיר לעצמו. Furthermore, the Rav maintains that a tzuras hapesach would reclassify a reshus harabbim as a reshus hayachid. Hence, once a tzuras hapesach is established, the matter is only d’rabbanan, and one can then rely on shishim ribo l’chatchilah (see Kanah V’Kanamon, 5:56). The Rav, moreover, upholds that the criterion of mefulash u’mechavanim is not conditional of a walled city. Therefore, we can rely on this criterion as well.
The additional poskim mentioned above would probably agree that a yiras shomayim can rely on shishim ribo l’chatchilah since we now know that the overwhelming majority of Rishonim uphold the criterion as a fundament of a reshus harabbim (or at least in conjunction with a tzuras hapesach). Moreover, according to these poskim, we can rely on the criterion of mefulash u’mechavanim l’chatchilah.
The Kuntres: B) More importantly, although it is true, that leading Poskim were of the opinion that the minhag is based purely on the opinion that only a road that services 600,000 people is a reshus harrabim, one cannot say that this is without disagreement. Rather several leading Poskim of yesteryear, state clearly, that the leniency of the European large eiruvin were also based on other mitigating factors, as we shall see below.
Therefore, it is not in clear agreement, that the custom to construct large eiruvin in yesteryear can be applied to today's streets, as these mitigating factors are indeed not generally present in today's Lakewood.
Rebuttal: Actually, the overwhelming majority of poskim who state that there is no reshus harabbim today are relying on the criterion of shishim ribo (there are nearly 100 poskim who uphold the criterion and approximately 25 who do not). However, some poskim enact a sfek sfeika, making use of the criterion in conjunction with the fact that according to many poskim once a tzuras hapesach is established the matter is only d’rabbanan (Yeshuos Malko, O.C. 21, and Avnei Nezer, O.C. siman 273:16, 279:2, 289:2).
For large cities, some poskim relied on the criterion of mefulash u’mechavanim (Rav Shlomo Dovid Kahane, Divrei Menachem, O.C. vol. 2, pp. 42-43). [The Divrei Malkiel (4:3), mentions that we rely on the criterion of mefulash u’mechavanim but also mentions that we rely on the fundament of shishim ribo.]
Clearly, it was the vast majority of poskim who were of the opinion that we rely on the criterion of shishim ribo, and only a few poskim who utilize additional arguments to allow eruvin. However, as we shall see, the Baal Hakuntres is even misrepresenting to what end the other “mitigating factors” are being utilized.
The Kuntres: Let us first introduce the Snifim Le'hakeil - mitigating factors allowing for leniency - in European eiruvin of yesteryear.
Rebuttal: The overarching flaw of this argument from the Baal Hakuntres is his misleading claims regarding to what end the poskim made use of these snifim l'hakel. The poskim that he cites are making use of snifim l'hakel only in order to satisfy those who do not rely on the criterion of shishim ribo. However, this does not preclude that these poskim would rely independently on the criterion of shishim ribo. It is standard fare of the poskim to gather snifim l'hakel when writing teshuvos in order to sanction leniencies for all. It is unfortunate that yeshivahleit do not have a grasp of the way teshuvos are written and formulated.
The Kuntres: 1. Lack of full Rightful Public Access
A reshus harrabim, as its name denotes, must be a domain to which the public has full and rightful access. Therefore, a thoroughfare that is owned exclusively by a ruling monarch, who has the right to close it and deny public access to it, might not be a reshus harrabim.
Rebuttal: Actually, who says that in a Democracy, where it is the people who vest the rights of the government, that the ability to close roads or condemn property are considered any less under the governments jurisdiction [again this is only a snif l’hakel].
The Kuntres: 2. Not Breaching the First Ten Tefochim [wagon traffic]
Based on the principle of asi rabbim umevatlin mechitzah, a tzuras hapesacah can become nullified if the public can go through it unimpeded. Some Poskim suggest that this is only the case for traffic that is travelling within the first ten t'fachim above ground [which is the primary section of the mechitza].However, if the mechitzah is "breached" primarily by wagons going through it, it is not considered to have been nullified by a rabbim, since the primary section of the mechitza is not being breached by the people seated in the wagons.
Rebuttal: Whoa, hold your horses! It is not just wagon traffic as the Baal Hakuntres would have us believe [notwithstanding his diyukim and excuses in his Kuntres HaDoreshes Masa'as Shabbos, vol. 1 saar aleph, anaf beis].
In fact, according to the Bais Ephraim, there are three independent rationales why traffic does not nullify a tzuras hapesach. 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 (regarding this rationale, the Bais Ephraim argues that it is pashut; 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 the Bais Ephraim, and the Baal Hakuntres’s arguments regarding this is hevel). Numbers two and three are pertinent to vehicles as much as they apply to wagons. The failure of the Baal Hakuntres to mention these vital points demonstrates his bias.
[It is important to note that besides for the Bais Ephraim, many if not most of the poskim maintain that the occupants of a car are not tallied in the shishim ribo, because of rationales two or three above (Maharsham, 1:162; Yeshuos Malko, siman 26-27; Harei B’samim, 5:73; Bais Av, 2:9:3; Chavalim BaNe’imim, O.C. 3:14; Mahari Stief, siman 68; Kuntres Tikkun Eruvin Manhattan, siman 12 p. 105; Satmar Rav, Kuntres Meoz U’Mekedem p. 27; Divrei Yatziv, 2:172:13; V’yaan Yoseph, 1:155:1; Kinyan Torah, 4:40:6, and Rabbi Eliezer Y. Waldenberg zt”l, author of the Tzitz Eliezer, as cited in The Contemporary Eruv, 2002 p. 54 note 119). It’s important to note that the concept that only holchei regel form a reshus harabbim is already mentioned in the Rishonim (Or Zarua, Hilchos Erev Shabbos siman 4 and Rabbeinu Avraham ben HaRambam in Birchas Avraham, siman 15).]
The Kuntres: 3. Not Mefulash
A reshus harrabim must be mefulnsh, which we have described above as "being open on both ends". Therefore, if the thoroughfare does not run along an uninterrupted path, the road does not qualify as a reshus hnrrabim.
Rebuttal: The criterion of mefulash u’mechavanim is not a snif l’hakel; it is a fundament of a reshus harabbim (see more further on).