Part 4 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: E) Why the Arguments Supporting the Boro Park Eruv Would Not Apply in Crown Heights

The exponents of the Boro Park eruv base their argument on the thesis that the question of whether or not an eruv can be established does not depend on the number of inhabitants of the city as a whole, but on the number of people who pass on a city's main street and the other roads leading into it. Their rationale is that the cities of the Talmudic era consisted of one main thoroughfare with side streets leading into it. This was its public domain. Thus, they contend, if 600,000 people do not pass through the main street of a neighborhood and its side streets on one day, that neighborhood is not considered a public domain.

As mentioned, according to the Alter Rebbe, the emphasis is on the city as a whole, not on its main street. However, even according to the other approach, there is a fundamental difference between Crown Heights and other neighborhoods. Eastern Parkway is a major thoroughfare with many other streets leading into it. Besides all the people who live in the neighborhoods surrounding it, many commuters on public transport use it and a large number of cars pass through. Hence, it is quite likely that 600,000 people pass through it and its side streets on an ordinary day.

The rebuttal: As I mentioned previously, no one of stature argues that shishim ribo is conditional of the population of the city. This is a modern day argument. The Alter Rebbe certainly does not understand the criterion as such either. It is simply untrue that there is a difference between Crown Heights and Boro Park.   The same argument which is being made about Eastern Parkway was made about Ocean Parkway, and most rabbanim allow an eruv that would include Ocean Parkway. 

The writer declares, without any substantiation, that those who uphold that the criterion of shishim ribo is conditional of a street, would include those people traversing the side streets leading into the thoroughfare in the tally.[8] In fact, this entire argument is specious. Roads that bisect main thoroughfares would not be included in the count of those traversing the main roadway; we only judge the volume of people traversing each section and not the entire length of the roadway in order to calculate the total (see Bais Ephraim, siman 26 p. 47; Yeshuos Malko, siman 27; Bais Shearim, the end of siman 132, and Minchas Yitzchak, 8:32). It is illogical to include the entire length of a thoroughfare in one aggregate. Those entering along one section of the roadway are only traversing that particular section and are independent of those traveling along the roadway at a different point.    

Furthermore, as mentioned above, Rav Moshe admitted that the simple reading of the Shulchan Aruch (shishim ribo ovrim bo b’chol yom) is that the criterion of shishim ribo is conditional of the street and of the myriads traversing that particular section of the road on a daily basis (Igros Moshe, O.C. 1:139:5, 4:87). Therefore, Rav Moshe posited that in order to classify a intercity road (which the writer argues Eastern Parkway is) as a reshus harabbim, according to the Shulchan Aruch 600,000 people would need to traverse a particular section of the road on a daily basis (ibid., 5:28:16).  Accordingly, we would not include vehicles or individuals entering the roadway at different points in the total count as they are each traveling along different segments of the roadway.

Finally, the Bais Av weighed in on this matter, as well. In the same teshuvah and seif that the Rebbe quoted, the Bais Av (2:5:3) clearly states that the requirement of the criterion of shishim ribo is that the 600,000 people gather in one place. No doubt the Bais Av maintains that only those people traversing a particular section of a road are included in the tally.

Consequentially, since no section of Eastern Parkway includes shishim ribo traversing it, we would not classify the parkway as a reshus harabbim. 

Additionally, most poskim maintain[9] that the occupants of a vehicle are not tallied in the shishim ribo. See note [10] below concerning the Alter Rebbe’s opinion in regards to the occupants of vehicles. Therefore, there is no doubt that there is nowhere near shishim ribo traversing the parkway.  

In any case, even according to the writer, you would think that since he declared that, “it is quite likely that 600,000 people pass through Eastern Parkway on an ordinary day,” he would have done some research and perused the city’s statistics to ascertain if it is even a remote possibility. However, it does not seem like the writer did any investigating since he did not offer any figures to go with his claim. Actually, even the suggestion itself is spurious for if we were to include the entire length of Eastern Parkway in one tally, it is not credible to claim, in a borough as vast as Brooklyn, that one out of every 4.3 people of the entire borough’s population (2,600,000) is traversing Eastern Parkway on any given day (even if we added the few hundred thousand people who come into the borough daily). In fact, the statistics corroborate that this is an incorrect suggestion (see note [11] below for the figures).

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[8]  It is interesting that Rabbi Levine argues that the criterion of shishim ribo cannot be conditional of a street because it would be difficult for 600,000 people to traverse a sixteen amos wide street in a single day. Clearly Rabbi Levine understood that those who maintain that the criterion is conditional on a street require the myriads to traverse each section of the roadway. If Rabbi Levine would allow that the criterion includes those passing over any section along the entire length of the roadway and that we include the population of the streets leading into the main thoroughfare, his proof would be inconclusive since it would be much more of a probability for the collective count of a lengthy roadway to include 600,000 people traversing it on a daily basis (as they are actually claiming here regarding Eastern Parkway).

This begs the question of why, at this point, is Rabbi Levine arguing that, even according to those who posit that the criterion of shishim ribo is conditional of a street, Eastern Parkway is definitely a reshus harbbim because of the collective number of people from all the segments of the parkway, when previously he understood that we would only count each section separately.  This is the fallacy of the entire treatise; Rabbi Levine is so aggressive in labeling Crown Heights as a reshus harabbim that he lost track of what he wrote previously.

[9]   See the following poskim who maintain that the occupants of a vehicle are not tallied in the shishim ribo: Sheilas Yavetz, 1:7; Bais Ephraim, O.C. 26; Yeshuos Malko, siman 26-27; Tikkun Eruvin Krakow, 1:3; Maharsham, 1:162; Harei B’samim, 5:73; Bais Av, 2:9:3; Chavalim BaNe’imim, O.C. 3:14; Mahari Stief, siman 68; Divrei Yatziv, 2:172:13; V’yaan Yoseph, 1:155:1; Kuntres Tikkun Eruvin Manhattan, siman 12 p. 105; Kinyan Torah, 4:40:6, Tzitz Eliezer, as cited in The Contemporary Eruv, 2002 p. 54 note 119.

The reason is either because a vehicle in itself is considered a reshus hayachid and therefore its occupants are not part of the total or because we only include pedestrians (holchei regel) who traverse the street in the tally. It’s important to note that the concept that only holchei regel create 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).

[10]  באמת גם לדברי השו"ע הרב (סימן שמ"ה סעיף י"ט), יל"פ מש"כ שאינו נח תשמיש הליכתו, שקאי על הספינה דמשו"ה לא הוי רה"ר, היינו כיון שאין יכולין לדרוס ברגל כ"א בספינות מפני המים, משו"ה לא הוי רה"ר, ומה שלא כתבו הטעם משום דספינות הוי רה"י, היינו משום דיש ספינות שאינו רה"י, וכמו שראינו בדברי השבלי הלקט (דף מ"ב) שכתב וז"ל: כתב הרב אביגדור כהן צדק דוגית שאינה גבוה מן המים עשרה טפחים אין מטלטלין בה, וכ"כ אח"כ וז"ל: ומצאתי בדברי הגאונים שאם המחוז יבש שאין הספינה יכולה להתקרב ביבשה וכו', מותר לירד בעברה הוא ביצת קטנה שהעברה הוא כגשר, והר"ר אביגדור כהן צדק כתב שאין ליכנס בדוגית קטנה עי"ש, הרי שהיה שכיח טובא ספינות כאלו, שאינם רה"י, ע"כ כתבו טעם דשייך על כל הספינות.

[11]  At the outset, it is important to note that the poskim maintain (Kuntres Tikkun Eruvin Manhattan, p. 108; Kinyan Torah, 4:40:7, and Rechovas Ha’ir, 23:2) that the same people traversing a road in both directions (even if we include in the tally those traveling in a vehicle) are only counted traveling in one direction.  Consequently, since the following statistics include many of the same people coming and going, the actual number of those passing through would be closer to half the number cited here. The approximate statistics quoted here are all culled from the US Census and the average daily weekday MTA and city and state DOT statistics.

The parkway has at the most 43,000 vehicles [with an average of 1.5 occupants per vehicle] traversing it daily in both directions. If we tally the average daily vehicular traffic of all of the parkways intersecting roads, it would be approximately 200,000 vehicles traversing it daily in both directions (some of these vehicles actually turn on to the parkway and were already included with those passing over the parkway itself). Roughly 25,000 people live along the length of the parkway (and many of them were already included in the subway, buses and vehicular totals). If we add those entering and exiting the subway stations along the length of the parkway, it would be approximately 40,000 people. Regarding buses, it is difficult to figure how many people are actually passing over the parkway itself since the MTA’s ridership statistics include the buses’ entire run. The tally on the entire length of the many bus routes that traverse all of the bisecting roads of the parkway, is roughly 150,000 people riding the buses daily in both directions.

Consequently, a rational total for the parkway with all of its intersecting roads [by adding up the figures and including average occupancy and then dividing the total in half]  would be roughly 275,000 unique people daily, which is far from the requirement of 600,000 people passing over the road on a daily basis. Moreover, these are average weekday statistics. Shabbos and Sunday are not included, and in fact, the average tally is considerable less on these two days. Therefore, since according to the Alter Rebbe the criterion of shishim ribo is a daily requirement and on these two days of the week Eastern Parkway has far fewer people traversing it, the parkway would definitely not be classified as a reshus harabbim. Furthermore, as I mentioned above, the overwhelming majority of poskim maintain that we do not include in the tally those traveling in a vehicle; thus, the total is not even close to the prerequisite of 600,000 people traversing the road on a daily basis.

However, this is all an exercise in futility, since only those traversing a particular section of the road are included in the tally. Moreover, even if the parkway meets the criterion of shishim ribo, there are additional criteria of a reshus harabbim [mefulash and mechitzos] which would render the parkway a reshus hayachid me’d’Oraysa. 

Part 3 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: Aside from the different sources that indicate the intent is not one place, but the city as a whole, upon closer examination, as explained at length in Dober Shalom, p. 131, the argument that the intent is one place is entirely untenable. In the Talmudic era, by and large, people did not pass through the streets at night. Thus, a day refers to a twelve hour period. In such a period, there are 84,000 seconds. Hence, for 600,000 people to pass by a particular place in one day, 15 people must pass by every second over the duration of those 12 hours.[5] Obviously, no such place has ever existed. Thus, the intent is not a specific place, but the city as a whole. Thus, when discussing this issue, the Alter Rebbe mentions (sec. 357:7) "a large city which possesses 600,000 inhabitants and (sec. 392:1) "a city with a large populace." For this reason, Rav Moshe Feinstein (Igros Moshe, Orach Chayim, Vol. 1, responsum 139) ruled that an eruv that includes Brooklyn as a whole may not be constructed.[6]

The rebuttal: There is no one of stature who indicates that shishim ribo is conditional of a city.

Regarding Rabbi Levine’s claim that it is physically impossible for the criterion of shishim ribo to be conditional of a street, he is toeh b’dvar Mishnah. He calculates the number of people traversing a given part of a street as one person per second, but a person's gait is more like two or three steps per second (see the calculations in Meseches Pesachim, 94a). Hence, it would only take approximately five hours for shishim ribo to traverse a street.

In regards to the Alter Rebbe, they are totally mistaken. As I mentioned previously, there is no doubt that from siman 364:44 we see the Alter Rebbe understands that shishim ribo is conditional of a street. There is no reason to create contradictions in the Alter Rebbe’s Shulchan Aruch when we can explain it simply. In both references that they listed, the Alter Rebbe is referring to a city whose population of shishim ribo traverses its main street. [Moreover, the first source listed (357:7) is a total misunderstanding on their part, see note [7] below.]

Regarding Rav Moshe Feinstein zt”l, they are missing the point. To begin with, I think that it is essential to give an overview of Rav Moshe’s chiddushim in shishim ribo.

Like most poskim, Rav Moshe originally maintained (Igros Moshe, O.C. 1:109) that the criterion of shishim ribo was dependent on the street having shishim ribo traversing it. However, later (ibid., 1:139:5) he formulated his chiddush in which shishim ribo, when applied to a city (see further regarding a sratya), was not dependent on a street but over a twelve mil by twelve mil area. Rav Moshe added that the criterion of shishim ribo ovrim bo would require a sizable population living and commuting into the twelve mil by twelve mil area so that it could physically satisfy the condition of 600,000 people collectively traversing its streets. When these criteria are met, the area would be classified as a reshus harabbim. However, at this time, Rav Moshe did not quantify how many people would be required to live in this twelve mil by twelve mil area.

In the first teshuvah quantifying how many people would be required to live in this twelve mil by twelve mil area, Rav Moshe stated (ibid., 4:87) that since in the past eruvin had been erected in cities with populations exceeding shishim ribo, one could not classify a city as a reshus harabbim solely on the basis of the existence of a population of 600,000. He then added that, although the actual number of inhabitants could possibly vary according to the city, in Brooklyn it would most likely require four to five times shishim ribo. In the final two teshuvos which followed regarding Brooklyn, we see that Rav Moshe codified his chiddush that the requirement is, "just about three million people," (ibid., 5:28:5) or, "at least five times shishim ribo," (ibid., 5:29) which could amount to even more than three million people. [There are three reasons why Rav Moshe would allow an eruv in Brooklyn today, including that the population is less than three million over a twelve mil by twelve mil area and that Brooklyn is encompassed by mechitzos; see http://eruvonline.blogspot.com for an in-depth analysis.]

Consequently, Rav Moshe’s shita regarding shishim ribo should not be conflated with Rabbi Levine’s. Rabbi Levine is suggesting that the criterion of shishim ribo is conditional of the population of a city. Rav Moshe maintains that shishim ribo is conditional of 600,000 people collectively traversing the streets of a twelve mil by twelve mil area. Rav Moshe explicitly states that eruvin were erected in the past in cities with populations exceeding 600,000 people.   

Furthermore, while Rav Moshe maintained that the criterion of shishim ribo, when applied to a city, was not dependent on a street but over a twelve mil by twelve mil area, he admitted that from a simple reading of the Shulchan Aruch (shishim ribo ovrim bo b’chol yom) it is more plausible that the criterion is conditional of the shishim ribo traversing a particular section of a road (ibid., 1:139:5). Consequently, Rav Moshe posited that the Shulchan Aruch is only referring to a sratya [intercity road], in which case the shishim ribo would need to traverse a particular section of the road on a daily basis in order to be classified as a reshus harabbim (ibid., 4:87, 5:28:16). Accordingly, it is a greater chiddush for those who follow a strict reading of the Shulchan Aruch to argue that the criterion of shishim ribo is conditional of a city and not of a street. 

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[5] In this English translation, the number of seconds in a twelve hour time period is incorrect. There are 43,200 seconds in twelve hours.

[6] This is incorrect. Rav Moshe’s opinion was not influenced by the Alter Rebbe and definitely not by any of the arguments set forth by Rabbi Levine. Additionally, the mareh hamakom in the Igros Moshe should be O.C. 4:87-88, and 5:28.

[7] הנה השוע"ר כתב שם דמ"מ שייך למיגזר בעיר גדולה שיש בה ס' רבוא. והנה לבד מה שהזכרנו דבעיר גדולה בימיהם היו בוקעים ס' רבוא בדרך המפולש של הרחוב המרכזי, מ"מ כאן בלא"ה אין שום סרך ראיה לדבריהם, כי הרי בעיר גדולה אסור כוחו בכרמלית כמו שכתבו התוס' (עירובין פ"ח ע"א ד"ה הני תיימי) דחיישינן שילכו המים עד רה"ר לכן משום לא פלוג גזרו כל כוחו בכרמלית, ע"כ הוצרך השוע"ר (המג"א) לומר דגזרינן בתוך עיר גדולה של ס"ר על כוחו בכרמלית, שהרי הגזירה הוא על הכרמלית שבעיר, ואטו עיר גדולה גזרו על עיר קטנה, משא"כ חוץ לעיר דלא שכיח רה"ר בזמה"ז לא גזרו על כוחו בכרמלית. ופשוט דאין מדברי השוע"ר (המג"א) הנ"ל שום ראיה לדבריהם כלל וכלל, כי אין מדובר כאן מרה"ר, אלא מכוחו ב"כרמלית" שגוזרין בעיר גדולה.

Part 2 -- Rebuttal: Eruv in Crown Heights According to the Alter Rebbe

The argument: D) When a Large Metropolis is Deemed as a Public Domain Even According to the More Lenient View

The existence of a metropolis that is considered as a public domain even according to the more lenient view is not just a theoretical concept. Such cities existed in the Talmudic era, as well. Thus, Rashi (Eruvin 6b) speaks of Mechuzah (a city in Babylonia) as having 600,000 inhabitants.

The rebuttal: To begin with, it is important to note that the assertion that the criterion of shishim ribo is conditional of a city is a relatively new one. Let us explore the core arguments regarding how to apply the criterion of shishim ribo, to a city or to a street. The main evidence cited by those who claim that shishim ribo is conditional on a city is that Rashi, the central supporter of this fundament, employs the word ir [city] when mentioning shishim ribo (Eruvin 6a):

ר"ה: משמע רחב שש עשרה אמה ועיר שמצויין בה ששים רבוא

However, the source for Rashi, the Behag (Berlin edition, p. 131), refers to a place/road:

רשות הרבים דוכתא דדשין בה שית מאה אלפי גוברין בכל יומא

Therefore, it is unlikely that Rashi or any of the other Rishonim maintain that the criterion of shishim ribo applies to a city.

Why then does Rashi make use of the word city in reference to the criterion of shishim ribo?

Rashi clarifies his shita further on in Eruvin (59b):

אלא לאורכה: דרך עיירות להיות פתחי פילושיהן לאורכם ורה"ר עוברת מפתח לפתח וחלוקה לאורכה ... והני דרסי בהך רה"ר ... ורה"ר זו מחברתם שכולם מעורבין בה

Likewise, we find in the Tosfos Rid (Eruvin 59b):

דדמי מבוי האמצעי לכל מבואות העיר הפתוחין לעיר, כמו המבוי לחצרות ... כך כל מבואות העיר דורסין על המבוי האמצעי כשרוצין לצאת מן העיר ולהיכנס

The same is notated in the Semag (the beginning of Hilchos Eruvin):

וכן בתוך העיר ימצא ר"ה כגון שרחוב שלה רחב שש עשרה אמה וכו' ומפולש משער לשער ובוקעין בו ס' רבוא

Similarly, we see from the Riaz (Eruvin 5:5:4):

וכן אם בא לערב כל מבוי ומבוי לעצמו הרי אוסר כל מבוי על מבוי שכנגדו וכו' ורחוב העיר, המהלך באורך כל העיר, מפסיק ביניהם ורחוב העיר אוסרן שרשות כולם שולטת בו

Rashi and these Rishonim are informing us as to how cities were designed. Because most cities were walled, cities in the past had a main road that all residents used to enter and exit the city; therefore, this thoroughfare was the reshus harabbim of the city. Consequently, when Rashi and the Rishonim who follow him use the word city in reference to shishim ribo, they are not signifying that the criterion is conditional on a city but only that the main thoroughfare [a derech hamelech] in a city containing shishim ribo would be classified as a reshus harabbim since it is traversed by its entire population.

This follows why Tosfos (Eruvin 6a); Rosh (ibid., siman 8); Rabeinu Peretz (ibid., 6a); Ritva (Shabbos 6a); Ran (Eruvin 6a), and Meiri (ibid.), when citing this Rashi (Eruvin 6a) [which utilizes city in reference to the criterion of shishim ribo], omit the word city because, as defined by Rashi, a city that includes a population of shishim ribo would also contain a central corridor traversed by the entire population of the city. A city containing shishim ribo is only an example as to how a thoroughfare can support such a population.

Now we can understand the Rashis in Eruvin (6b) describing the reshus harabbim of Yerushalayim and Mechuza.

Regarding Yerushalayim, Rashi states:

ירושלים :רשות הרבים שלה מכוון משער לשער ומפולש ויש בה דריסת ששים ריבוא ורחב שש עשרה אמה

Following this, Rashi writes about Mechuza

 אבולי דמחוזא :שערי העיר מכוונים זה כנגד זה והיו בה ששים ריבוא

In both situations, Rashi is referring to the main street of the city as being the reshus harabbim and not the entire city. Yerushalayim and Mechuza contained a population of shishim ribo which was the reason that their central routes were classified as a reshus harabbim. Clearly the Rishonim maintain that shishim ribo is conditional of the street and not of the city.

On the other hand, since today’s cities are not walled, it is not necessary for the entire populace to utilize a central thoroughfare to enter and exit the city. Hence, none of the cities’ streets are traversed by all of its inhabitants, and therefore, even in a city with a population greater than shishim ribo (unless 600,000 people actually traverse the road), we would not classify any street as a reshus harabbim.

The argument: Many of the later halachic authorities discuss such cities and, in his Shulchan Aruch, the Alter Rebbe, sec. 392: 1, 2 issues a ruling regarding a city that has that many people pass through it every day. In a place so densely populated, a tzuras hapesach would not be effective in creating an enclosure for an eruv that would include the city as a whole. Instead, it is necessary to judge each place individually: Is it a public domain -a place for the community as a whole -or shared private property.

There are those who maintain that the lenient view mentioned above does not focus on the city as a whole, but on a specific place. According to this understanding, as long as 600,000 people do not pass through this place in a day, it is not a public domain. From this perspective, even if the city as a whole has 600,000 people, a portion of that city where 600,000 do not pass in a day can be enclosed by tzuros hapesachim without considering the particular nature of a given area.

The rebuttal: First of all, there are very few later poskim who discuss cities at all. Up until lately, it was a given that the criterion of shishim ribo is conditional of a street (see Divrei Malkiel, 4:3). In regards to the Admor Hazaken, how anyone can derive from this source that he maintains that shishim ribo is conditional of a city is beyond comprehension. The Alter Rebbe is merely indicating that (according to shitas Rashi) only a city which has a street with shishim ribo traversing therein would require shiyur [we exclude a section of the city from the eruv]. There is no mention in this seif that the criterion of shishim ribo is conditional of a city. Furthermore, it is beyond a shadow of a doubt that the Alter Rebbe upholds shitas Rashi is conditional of a street. The Alter Rebbe writes (363:44):

שאם היו ששים ריבוא בוקעים במבוי זה היה רשות הרבים גמורה

This reference by the Alter Rebbe is clearly indicating that the criterion of shishim ribo is conditional on 600,000 people traversing in the mavoi itself and not the entire city (for additional proof see, 345:11, and 363:42).

As mentioned above, the simple understanding from the Rishonim (and Achronim) of the criterion of shishim ribo is that it is conditional of a street. As a matter of fact, a little further on in the same teshuvah and seif that the Rebbe quoted, the Bais Av (2:5:3) clearly states that the criterion of shishim ribo is conditional of a street and not of a city.