Wednesday, November 30, 2005

Part 2: The Truth About Warsaw

Many statements regarding the population of Warsaw have been tossed around e.g. that the Vistula River divided the population of Warsaw and therefore there was no shishim ribo on either side of the river. This is all fiction; the larger side, which was called Warsaw, contained a population greater than 600,000 by the year 1900. The smaller side, known as Praga, contained a population of approximately 66,000. This information was published in Rocznik Statystyczny Warszawy 1921 i 1922, 1924 p. 14, see copy below. For more about Warsaw see Part 1: The Truth About Warsaw.

[Even Rav Moshe zt"l acknowledged that Warsaw’s population was greater than 600,000. The reason Rav Moshe formulated his chiddush in shishim ribo (that there would need to be a population of 3,000,000 over twelve mil by twelve mil in order for that area to be classified as a reshus harabbim) was because he realized that there were European cities (Igros Moshe, O.C. 4:87), such as Warsaw (ibid., 5:28:5), whose populations were greater than 600,000 and nevertheless eruvin had been established there. Therefore, to say that the criterion of shishim ribo (600,000) is dependent on a city goes against the established minhag.]

Mefulash According to the Shulchan Aruch

The text of the Shulchan Aruch reads:
“What is a reshus harabbim? A street or marketplace that … is not walled and even if they are walled but they [the street or marketplace] are open from city gate to city gate, they [the street or marketplace] would be considered a reshus harabbim ….”

Even though the Shulchan Aruch cites the criterion of mefulash m’shaar l’shaar in conjunction with a walled city, the Tur does not differentiate between a walled city and an open city and the Bais Yosef (siman 345) does not disagree with the Tur. Therefore, mefulash would be considered a criterion of a reshus harabbim even in a city that is not walled (see Bais Av, 2:9:1 for a detailed explanation). The Gra offers a different perspective (Bi’ur HaGra, O.C. 345:7) and explains that the words of the Shulchan Aruch, “is not walled,” refers to a street [sratya]. The Dmesek Eliezer clarifies the Gra that a sratya is a road which does not have a wall around it. The Gra explains further that, “even if they are walled,” refers to a marketplace [platya]. The Dmesek Eliezer explains that a platya is a city street that is walled on two sides and the remaining two sides are open straight from city gate to city gate. What we see from this Dmesek Eliezer is that what the Shulchan Aruch refers to as, “walled,” pertains to the streets of the city and not the city walls. Therefore, it is understandable why the Gra (Sh’nos Eliyahu, introduction to Meseches Shabbos and Chidushi HaGra, Shabbos 6a) when discussing the criterion of mefulash m’shaar l’shaar does not attribute it to a walled city. It follows that our streets which are lined with houses would be classified as walled streets and would have to be mefulashim u’mechuvanim m’shaar l’shaar to be categorized as a reshus harabbim. Note that since the term city gate [shaar] does not always pertain to the gate of a walled city (Rashi, Yoma 11a), mefulash m’shaar l’shaar can refer to a city that is not walled as well.

Tuesday, November 29, 2005

Part 2: A Critical Analysis of Rav Yisroel Hirsch’s Critique of Eruvin in Brooklyn

Continued from part I

Page 3 comment 2:
“Furthermore, there was no reason for the אר"י to question the eruv of צפת whereas great halachic authorities have publicly forbidden the construction of an(y) eruv in New York City. So there is every reason to question its construction. Also, the אר"י did not question the eruv in צפת after it had already been constructed; our present situation deals with – precisely – the halachic basis for such a construction.”

In fact there was reason to question the eruv of Tsfas. The, “lamdanim and some of the talmidi chachamim,” of Tsfas questioned the eruv since in the non Jewish section of the city there was a street more than sixteen amos wide and some of the streets in the Jewish section opened on to it. On this issue the Maharit Tzahalon (siman 251) commented that for a street to be classified as a reshus harabbim, we require shishim ribo to traverse it. Additionally, these, “lamdanim and some of the talmidi chachamim,” of Tsfas were questioning the existing eruv. (Ironically, the fact is Rav Hirsch’s comments on the Kensington eruv were written after the fact as well.)

Page 3 comment 4:
“But the logic that sees a contradiction because of the “collection of disparate sources” is untenable. Different aspects of any argument may be accepted or rejected, without having to accept the entire thesis. So long as one does not both partially accept and partially reject the same aspect, or selectively accept two aspects of the same argument that are contradictory, one may find one point valid and the other not.”

This is not the argument put forth by the kuntres at all. If the reason that we have to follow Rav Moshe’s zt"l p’sak is because he was the Gadol Hador then why would the anti-eruv group bring other shitos against eruvin (shitos that Rav Moshe never subscribed to) from others whom they do not consider the Gadolei Hador? It must be that the goal is to asser eruvin hence the need to collect shitos yachidos from disparate sources.

To quote The Community Eruv kuntres, “Of course, it is always possible to cite shitos yachidos to invalidate an eruv; 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 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 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.”

Page 3 comment 5:
“Granted, the halacha is not like ר' יהודה; rather, לא אתו רבים ומבטלי מחיצתא. But if the pirtzah is more than 10 amos (maybe 16) that is another matter. In such a case many rishonim would say the entire mechitzah is invalid. R’ Aharon Kotler spends much time in his קונטרס showing this to be the position of the רמב"ם.”

If it’s granted that the halachah is not like Rav Yehudah since most poskim pasken as such, then it’s established as well that the halachah of pirtzos esser is only a rabbinical proscription. As a matter of fact Rav Hirsch admits later (comment 32) that “many” poskim maintain pirtzos esser is d’rabbanan. However, the fact is it’s not just many poskim but the overwhelming majority of poskim who maintain as such (see Pirtzos, Biblical or Rabbinical proscription?). Actually Rav Moshe zt”l maintains that a pirtzos esser is d’rabbanan (Igros Moshe, O.C. 2:89). It is obvious that we don’t pasken like Rav Aharon zt”l (and the Mishkenos Yaakov). If we would pasken like Rav Aharon that pirtzos esser is d’Oraysa and asu rabbim u’mevatlei mechitzta and that a rabbim is less than shishim ribo we would not be able to establish eruvin in any town big or small. [It’s important to note that since Brooklyn’s mechitzos are at the waterfront there is no rabbim traversing them and Rav Aharon would admit that a tzuras hapesach at the pirtzos would be sufficient; see Mishkenos Yaakov, O.C. 122 p. 144.] There is no Rishon who states explicitly that a pirtzos esser is a d’Oraysa – Rav Aharon and others extrapolate from some Rishonim as such. However, the fact is there are three Rishonim who state unequivocally that pirtzos esser is only d’rabbanan (Hashlama, Eruvin 5a; Tosafos HaRosh, Eruvin 17b, and HaEshkol, p. 167). Regarding a pirtzah of sixteen amos even the Mishkenos Yaakov (O.C. 122 p. 144-45) admits to the Bais Ephraim that it is not a qualifier of a pirtzah in a mechitzah.

Part III

Pirtzos, Biblical or Rabbinical proscription?

Nearly all poskim maintain that pirtzos esser is me’d’rabbanan (Mabit in Kiryat Sefer, Shabbos Perek 16; Bais Meir, siman 364; Pri Megadim, Mishbetzes Zahav, 363:1; Shulchan Aruch HaRav, O.C. 345:11; Zera Emes, Eruvin 17; Bais Ephraim, O.C. 26-27; Tikkun Eruvin Krakow, teshuvah 1; Melamud Leho’il, siman 68; Avnei Nezer, O.C. 265:13, 265:25, 276:1, 279:3; Aruch HaShulchan, O.C. 362:26; Mahari Slutsk, O.C. 11; Achiezer, 4:8; Chazon Ish, O.C. 107:5-8, 112:5; Chavatzelet HaSharon, O.C. 19; Kol Mevaser, 1:20:2, and Igros Moshe, O.C. 2:89).

None of the Rishonim state explicitly that a pirtzos esser is a d’Oraysa – Rav Aharon Kotler zt"l and others extrapolate from some Rishonim as such. However, the fact is three Rishonim state unequivocally that pirtzos esser is only d’rabbanan (Hashlama, Eruvin 5a; Tosafos HaRosh, Eruvin 17b, and HaEshkol, p. 167). Furthermore, even those few Achronim who state that a pirtzos esser is d’Oraysa would admit that when utilizing a tzuras hapesach to close the pirtzah it is as though the pirtzah itself ceases to exist (Mishkenos Yaakov, O.C. 122 p. 144). Additionally, it’s difficult to understand Rav Aharon’s (Mishnas Rav Aharon, 6:2) statement that Rabeinu Chananel (101a) maintains pirtzos esser is d'Oraysa. Since Rabeinu Chananel is referring to Yerushalayim and Rav Aharon adds there was shem daled mechitzos there, consequently, according to R’ Yehudah, the pirtzah would have to be at the minimum 13 1/3 amos. Why would Rabeinu Chananel only go according to R’ Meir (even more so, the Yerushalmi states this part of the Mishna is according to R’ Yehudah). Moreover, according to the way the Meiri (11b) explains the Rabeinu Chananel we see that he maintains pirtzos esser is d’rabbanan. (See Divrei Yechezkel, siman 5:13 for a different explanation of Rabeinu Chananel, 101a.)

When clarifying that a pirtzah of ten amos is a rabbinical proscription, almost all poskim do not differentiate between a pirtzah of ten amos and one of thirteen amos which is proof that they maintain there is no difference halachically between them. Additionally, there are poskim who clearly state that a pirtzah of thirteen amos is me’d’rabbanan as well (Zera Emes, Eruvin 17; Bais Ephraim, O.C. 26; Avnei Nezer, O.C. 265:25, 276:1; Aruch HaShulchan, O.C. 362:26, and Chazon Ish, O.C. 107:5-8). Furthermore, even those few poskim who state a pirtzah of thirteen amos is me’d’Oraysa would admit that when utilizing a tzuras hapesach to close the pirtzah it is as though the pirtzah itself ceases to exist (Mishkenos Yaakov, O.C. 122 p. 144).

Regarding a pirtzah of sixteen amos even the Mishkenos Yaakov (O.C. 122 p. 144-45) admits to the Bais Ephraim that it is not a qualifier of a pirtzah in a mechitzah.

Monday, November 28, 2005

Part 1: Halachah K’Divrei Hameikil B'Eruvin

Most poskim maintain that we pasken halachah k’divrei hameikil even in issues regarding mechitzos: Mordechai, Eruvin 1:482; Rosh, Eruvin 2:4 see the Gra, O.C. 358:5 and the Bais Shlomo, siman 42; Maharash Elgazi, Halichos Eli, Klali 5 Ois 251 cites the Rabbeinu Chananel, Rambam and Tosfos; Mayim Rabbim, siman 36, 38; Chacham Tzvi, siman 59; Bach HaChadash, Kuntrus Achron siman 3; Yeshuas Yaakov, 363:5; Chasam Sofer, 6:82, and Maharsham, 4:105, 8:58:5, 9:18.

Sunday, November 27, 2005

Part 1: A Critical Analysis of Rav Yisroel Hirsch’s Critique of Eruvin in Brooklyn

Part of an ongoing commentary on the bias against city eruvin.

We have been told that after Rav Hirsch published his Critique of Eruvin in Brooklyn, a member of his congregation pressed him to answer what Rav Moshe Feinstein zt"l's shita was regarding mechitzos. After analyzing the way it was elucidated in Eruvin in Brooklyn, he admitted that what was stated therein was accurate. Additionally, the later edition of Eruvin in Brooklyn, The Community Eruv kuntres covered many of Rav Hirsch’s comments and there really is no need to reply to his criticism per se. However, since his analysis is still posted on his shul’s website, we will analyze his words in a linear fashion.

Rav Hirsch writes in his introduction (page 1-2):
“In the spring of 1962, a group of the most preeminent halachic authorities in the United States gathered to discuss the plausibility of an eruv in Manhattan. The meeting was chaired by HaGaon R’ Aharon Kotler zt”l, in the presence of HaGaon R’ Moshe Feinstein, HaGaon R’ Yaakov Kamenetsky, and HaGaon R’ Eliyahu Henkin zt”l among others. While there was (probably) no unanimity of opinion concerning the issue from an academic standpoint, an absolute consensus was reached toward an halachic prescription. They publicly declared that “it is impossible under any circumstances to erect an eruv in Manhattan and that it is forbidden to carry even after all the improvisations that have or will be implemented by any rabbi(s).”

If Rav Eliyahu Henkin zt”l was at the meeting as Rav Hirsch claims why then didn’t he sign this kol korei (see The 1979 Flatbush Kol Korei Exposed). Therefore, his statement that, “an absolute consensus was reached toward an halachic prescription,” is untrue since Rav Henkin abstained from partaking in this prescription against the establishment of the Manhattan eruv. In fact in 1960 Rav Henkin signed on to the committee to establish an eruv in Manhattan (Divrei Menachem, O.C. vol. 2, p. 10; see also Kisvei Hagriah Henkin, p. 33 where he urges the rabbanim of the Bronx and Brooklyn to erect eruvin). Additionally, most rabbanim at that time were in favor of the eruv in Manhattan such as: Rav Tzvi Eisenstadt, Amshinover Rebbe, Kapishnitzer Rebbe, Boyaner Rebbe, Noverminsker Rebbe, Radziner Rebbe, Rav Michol Dov Weissmandel, Rav Yonasan Steif, Rav Tzvi Pesach Frank, Rav Menachem Kasher, and the Shatzer Rebbe, zt”l. In Iyyar of 1962 an eruv was established under the supervision of the Shatzer Rebbe. Only after the Manhattan eruv was established did this aforementioned meeting of the, “preeminent halachic authorities [Agudas HaRabbonim],” take place and then they issued a kol korei against the Manhattan eruv.

It’s important to note, when Rav Moshe zt"l signed on the 1962 takanah with Rav Aharon Kotler zt"l, we see that he was not at ease with the language, since after he quoted this takanah in his teshuvah, he omitted the last line which stated that, “those who rely on the eruv in Manhattan are considered a mechalel Shabbos” (Igros Moshe, Addendum to O.C. 4:89).

“R’ Moshe, who was a member of that convocation, maintained that although that prohibition was issued only with regard to Manhattan, its relevance extended to the whole city of New York, minus the clearly defined exceptions, i.e. Queens (Kew Gardens Hill) etc.”

This is pure fiction since Rav Moshe zt"l never stated that the 1962 issur against establishing an eruv in Manhattan included all of New York City. This is a fabrication of the 1979 Flatbush kol korei (see The Community Eruv kuntres, Appendix 10). If Rav Hirsch is correct then when the rabbanim of Flatbush asked Rav Moshe for his p’sak about erecting an eruv (Igros Moshe, O.C. 4:87) Rav Moshe should have referred back to the 1962 kol korei and stated that the issur then included erecting an eruv in Brooklyn. Not only did Rav Moshe not declare that it was prohibited to construct an eruv, he was not mocheh and did not even recommend that they not erect an eruv (ibid.). What he did tell them was, “I do not want to join you in this matter, because there are many opinions on this topic, as we see in the Shulchan Aruch.” Only when some people misunderstood these words as somehow supporting the eruv did Rav Moshe feel there was a need to clarify his personal approach regarding the issue. Hence he wrote this teshuvah clarifying his opinion, explaining that he had a chiddush, which accordingly would prohibit the construction of an eruv. However, he declined to issue a p’sak, since, as he acknowledged, his chiddush was not mentioned in the Achronim, and moreover it was obvious that the Aruch HaShulchan would not agree with him.

Rav Menashe Klein shlita wrote (Oim Ani Chomah, siman 7) that Rav Moshe told him in 1979 ― in the presence of Rav Elimelech Bluth shlita, Rav Shalom Dresner shlita, and Rav Mordechai Tendler shlita ― that contrary to what someone in the Agudas HaRabbonim was promoting the 1962 issur from the Agudas HaRabbonim was only regarding Manhattan. More so, Rav Tuvia Goldstein zt”l, a Talmid/Chaver of Rav Moshe zt”l, said on numerous occasions that even after the 1979 kol korei against the Flatbush eruv was published, he spoke with Rav Moshe who agreed that if the rabbanim wanted to erect an eruv they could do as they saw fit. Moreover, he stated that even Rav Moshe himself would have allowed an eruv in its present construction. Therefore, we can’t extrapolate what these signatories of the 1962 kol korei would maintain regarding Brooklyn and definitely not their stance concerning the present eruv.

“The attempt to construct an eruv in Brooklyn flies in the face of rabbinic consensus.”

Again there was no consensus and where is it stated that there is a need for a rabbinic consensus when constructing an eruv? On the contrary, every rav has a responsibility to establish an eruv in his town (Teshuvos V’Hanhagos, 1:844; see also Chasam Sofer, O.C. 99).

“New York City already has its ruling. It must not be ignored!”

Even if there was a ruling, the Bach (Choshen Mishpat, siman 25) states that after the passing of a rav other rabbanim, even in his hometown, can make permissible that which he had forbidden. More so, since regarding Brooklyn Rav Moshe was misled (regarding the population size and mechitzos) the Mharsham (7:48) brings the Rivash and the Mharashdam that to begin with there is no din of chacham sh’osser.

Part II

Friday, November 25, 2005

A Rambam Eruv in Brooklyn?

The Rambam considers a tzuras hapesach a valid mechitzah only when utilizing at the minimum two mechitzos that 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. The Kaf HaChaim (362:92) quotes the sefer Minchas Yehudah (siman 26) that states if a city has omed merubeh of its houses, they can be used to qualify the tzuras hapesachim as a Rambam eruv. 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 ― any eruv in Brooklyn would be considered a Rambam eruv

Brooklyn and Queens: Same or Different?

As there are many similarities between Brooklyn and Queens, all the arguments why an eruv cannot be erected in Brooklyn can be said of Queens as well. [For example, the claim that there are many illegal immigrants who are not included in the Brooklyn census can be said of Queens as well and nevertheless we do not see that this issue concerned Rav Moshe Feinstein zt”l regarding Brooklyn or Queens.]

There are people who attempt to rationalize why Rav Moshe allowed an eruv to be erected in Queens. For example, some claim that Kew Gardens Hills is considered a suburb of Queens while others allege that Queens was not incorporated into the city as a whole unit, but rather as a set of disparate neighborhoods. Therefore, they argue, the population of Queens is considered divided and each neighborhood is independent of the other, which is why Rav Moshe allowed an eruv to be erected there. This assumption is incorrect; Rav Moshe never claimed that Kew Gardens was a separate entity, only that it was a small neighborhood in Queens (Igros Moshe, O.C. 4:86 and Addendum to O.C. 4:89). Additionally, Kew Gardens Hills is part of Queens just as Boro Park and Flatbush are part of Brooklyn, as can be seen on any map of the area. Every neighborhood in Queens is built up to the adjoining neighborhood and forms one contiguous borough just as all neighborhoods do in Brooklyn. Why then did Rav Moshe allow an eruv in Queens and oppose one in Brooklyn? Even more so, since both Brooklyn and Queens have similar populations of over 2,000,000, why did Rav Moshe not apply the same gezeirah that he implemented regarding Brooklyn and Detriot to negate an eruv in Kew Gardens Hills, Queens as well (see previous post Three Million: More or Less?)?

Additionally, in a speech given a while ago about the eruv in Flatbush, there was a claim made that the reason Rav Moshe allowed an eruv in Kew Gardens Hills, Queens was that the area is encircled with mechitzos. This is a fabrication, as Rav Moshe never refers to mechitzos in any teshuvah concerning Kew Gardens Hills (ibid., 4:86 and Addendum to O.C. 4:89). Nor does anyone else mention mechitzos regarding Kew Gardens Hills (See Minchas Chein, siman 24 and Minchas Asher, 1:51-52, 2:56-57, 2:59). More so, since Brooklyn is encircled with mechitzos as well, why should it be any different than Kew Gardens Hills? If Brooklyn would require dalsos at it’s pirtzos, Kew Gardens Hills would require dalsos as well (Igros Moshe, O.C. 1:139:3).

The underlying principle must be that Rav Moshe allowed an eruv in Kew Gardens Hills because the tzuras hapesach there separated the neighborhood just as he stated the eruvin in Europe demarcated the Jewish quarters from their cities (ibid., 5:28:5). Rav Moshe considered the eruv, in and of itself, a separation of the shishim ribo and allowed the eruv there. Consequentially, Rav Moshe was not concerned about the possibility that a twelve mil by twelve mil section of Queens which includes Kew Gardens Hills might be classified as a reshus harabbim, even though Queens ― like Brooklyn ― had a population well over 2,000,000. The important issue was that in Kew Gardens Hills, a neighborhood in Queens, they were dividing only a part of Queens, which contained less than shishim ribo with a tzuras hapesach in contrast to Brooklyn where Rav Moshe was under the impression that the tzuras hapesach encircled more than shishim ribo (Igros Moshe, O.C. 5:28:5 and Addendum to O.C. 4:89).

These are the facts:
Census figures reveal that in Boro Park the eruv includes a population of less than 100,000 people and in Flatbush a population under 200,000 people (NYC Department of City Planning, Community District Profiles, 2002). Had Rav Moshe known these figures, he certainly would have agreed to an eruv of tzuras hapesachim in these Brooklyn communities, which would set them off from their borough, just as he allowed that an eruv in Kew Gardens Hills, Queens and the eruvin in European communities set them off from their respective cities.

Three Million: More or Less?

In one of his teshuvos regarding eruvin in Brooklyn (Igros Moshe, O.C. 4:88), we see that Rav Moshe Feinstein zt”l realized that the total population of Brooklyn was perhaps less than 3,000,000. Nevertheless, he maintained that despite this an eruv should not be constructed since in a large city one may think that there is shishim ribo over a twelve mil by twelve mil area. [See also ibid., 5:29 regarding Detriot, a city with a population of approximately 1.2 million (in 1980, at the time this teshuvah was written). Despite the fact that the population was 1.2 million, Rav Moshe maintained that an eruv should not be established in the city of Detroit proper because of this gezeirah.] Since Brooklyn’s population is less than 3,000,000 an eruv according to Rav Moshe is not a matter of a d’Oraysa only a gezeirah.

This gezeirah does not pertain to us as well for the following reasons:
1. Rav Moshe only stated this gezeirah because he was led to believe that Brooklyn did not have mechitzos. Once we have established that Brooklyn is circumscribed by mechitzos, Rav Moshe would certainly not have objected because of a gezeirah since in any case with mechitzos Brooklyn is considered, me’d’Oraysa, a reshus hayachid.

2. Since we have erected a tzuras hapesach in each neighborhood, the area enclosed contains a population of much fewer than shishim ribo, which would definitely not be mistaken as a reshus harabbim. In fact, Rav Moshe allowed the separation of a neighborhood with a tzuras hapesach (see ibid., 5:28:5).

It is interesting to note the similarities between the Brooklyn and Chicago eruvin. Both Brooklyn and Chicago have a population of approximately 2,500,000 people over a twelve mil by twelve mil area. Despite this number of people Rav Dovid Feinstein shlita was cited in the Chicago eruv pamphlet (West Rogers Park Eruv, 1993 p. 23) as being in agreement that, according to his father, an eruv could be established in Chicago. This gezeirah was not considered a serious enough issue to impede the construction of eruvin in Chicago and should not interfere with an eruv in Brooklyn as well.