The argument: G) Conclusions that Apply with regard to Actual Practice
As explained,
according to the rulings of the Alter Rebbe and the Tzemach
Tzedek, a general
eruv encompassing the community as a whole with a tzuras hapesach
would not be valid. It is, however,
possible to use a tzuras hapesach to make an eruv that encompasses areas deemed as a karmelis.
Areas that are deemed public
domains according to Scriptural Law could not, however, be included in such an eruv.
Which
parts of the community would be deemed public domains? Let us return to the
definition of a public domain given by the Alter Rebbe in sec. 345: 11:
What
constitutes a public domain? Roads and marketplaces that are sixteen cubits by
sixteen cubits in area, for the road in the camp of the Levites in the desert
had these dimensions ....
Similarly,
thoroughfares that run from town to town that are sixteen cubits wide and so
too, lanes that are sixteen cubits wide that run from one road to another or
from roads to thoroughfares that are sixteen cubits wide are deemed public
domains in a complete sense.
He
mentions four types of public domain:
a)
Roads
-I.e., major arteries of human traffic. Eastern Parkway and Empire Blvd. would
certainly be placed in this category.
b)
Marketplaces
-Kingston Ave, Nostrand Ave, and Utica Avenue would certainly be placed in this
category. After all, the Tzemach Tzedek (Chiddushim 33c) considered the town
square of Lubavitch as being considered a marketplace -and therefore a public domain
-even though the village was home to no more than a few hundred families.
c)
Thoroughfares
that run from town to town -Highways of this nature are not found in our
community.
d)
Lanes
that are sixteen cubits wide that run from one road to another - Such lanes would
not ordinarily be considered as public domains because, in and of themselves, they
do not produce a large amount of human traffic. Nevertheless, because they are connected
to major roads or marketplaces, it is likely that human traffic from the roads and
marketplaces will spill over into them. Hence, they too are deemed public domains.
Most of the streets in the community, Brooklyn Ave,
Albany Ave, President Str. Crown Str. Montgomery Str. Etc. would be placed in
this category because they run either from Eastern Parkway to Empire Blvd.
(from one road to another) or from Kingston to Utica or Nostrand (from one
marketplace to another).
In which places could an eruv be constructed using a
tzuras hapesach? In the alleys that run behind the homes in the streets between
Union and Empire, for these alleyways are not places through which people at
large pass.
The rebuttal: Going
forward, it is important to keep in mind that the Alter Rebbe maintains that an
area encircled with a tzuras hapesach is a reshus haychid me’d’Oraysa,
and the obligation of delasos is only me’d’rabbanan. Since the
issue is only me’d’rabbanan, we can be lenient [safek d’rabbanan
l’kulla] and apply any additional heter to remove the requirement of delasos.
This shita of the Alter Rebbe should in its own right have terminated this
debate, but the writer of this article chose to be stringent in all matters
regarding reshuyos.
To
begin with, this entire argument is extraneous. If we maintain, as the writer would have us believe, that the
criterion of shishim ribo is conditional of a city, every street in the
entire borough would be classified as a reshus harabbim, and no part of
the community (besides for some shared alleyways) would be deemed a karmelis.
There would be no need to ascertain the classification of each and every road ― whether it is a reshus
harabbim or not. [Nevertheless, even according to the writer, as we mentioned
above, Brooklyn would not be classified as a rehsus harabbim since all
the streets in Crown Heights, even Eastern Parkway, are not mefulash
u’mechavanim on one side to a platya and on the other side to a sratya.
Notwithstanding the argument that the criterion of mefulash u’mechavanim
is conditional of a walled city, the parkway is halachically classified as
walled since it is lined by mechitzos habattim and, moreover, our entire
borough is encompassed by mechitzos; therefore, the borough is
classified as a walled city.]
We,
however, maintain that shishim ribo is conditional of a street, and
therefore we need to explore the categories
of public domains, and how they apply to our roads today.
As discussed previously, the Alter Rebbe mentions four domains
which, when they satisfy the criteria of a public domain are classified as a reshus
harabbim: rechovos [marketplaces (or according to the Tzemach
Tzedek town squares)], shvakim [(large) marketplaces], derachim
shovrim b’hen m’ir l’ir [intercity roads], and mavaos hamefulashim [open-ended
alleyways].
According to the Tzemach Tzedek (Shabbos,
6a), three of the four public domains [rechovos, shvakim, and derachim
shovrim b’hen m’ir l’ir], are inherently a reshus harabbim, and in
an unwalled city, they would not require the criterion of mefulash to be
classified as a reshus harabbim.
Eastern
Parkway and Empire Blvd. do not fulfil these three categories. As mentioned
previously, they are definitely not a marketplace or an intercity road or a
thoroughfare, such as a town square, which was meant for people of the entire
city to congregate on. The Ravad writes (Kasev Shom, Eruvin
6a) that only roads which function primarily as sratyas [rechovos] and platyas [shvakim] are classified as such. The
fact that at times some roads are used to sell wares or to go from city to city
or to congregate on does not make it the roads’ primary function. Eastern
Parkway’s primary function is a large local expressway and not an intercity
road (it does not lead directly out of the city on either end). Additionally,
the purpose of its flanking pedestrian malls is for local people to stroll and
relax on, unlike a town square which functions as the gathering place of the
entire city.
Kingston Ave, Nostrand Ave, and
Utica Avenue, do
not fulfil the category of a marketplace. As mentioned above, we do not have shvakim,
marketplaces today as all of our stores are indoors. Even if some streets are
lined with stores, this does not halachically classify them as marketplaces. [Moreover, even if one were to argue that some of
our roads are similar to the sratyas and platyas that the Tzemach
Tzedek is referring to, since Brooklyn is encompassed by mechitzos
on three of its sides, as all the streets in the borough eventually end at a mechitzah,
the Tzemach Tzedek would definitely require the streets to be mefulash
u’mechavanim, as well.]
Thus,
the only domain that all thoroughfares in
Crown Heights (even Eastern Parkway) would be halachically similar to is
mavaos hamefulashim. Consequently, according to the Alter Rebbe all
the roadways in the neighborhood would need to fulfil all criteria of a public
domain to be classified as a reshus harabbim. These thoroughfares do not
satisfy the criteria of shishim ribo since no street in Crown Heights
has 600,000 people traversing (any section of) it daily. Additionally, since we
do not have rechovos and shvakim in Crown Heights, the mavaos
cannot possibly be mefulash u'mechavanim into any of them; therefore, there
is no doubt that the Tzemach Tzedek would not classify any of the roads
in the neighborhood as a reshus harabbim.
Moreover,
and it is very telling that this issue was omitted from this entire translation,[13]
that even if we were to include a road that meets all the requirements of a reshus
harabbim, the fact that Brooklyn is encompassed on three of its sides by mechitzos,
which are omed merubeh al haprutz [more than 50 percent of the length of
each side must actually consist of a wall], the borough would nevertheless be
classified as a reshus hayachid me’d’Oraysa according to the Alter Rebbe
and the overwhelming majority of poskim (see Map of the Mechitzos Encircling Brooklyn 2).
The
argument: As mentioned
initially, the purpose
of this treatise is not to judge whether or not it is desirable to make
an eruv in Crown Heights, but rather to clarify whether
making such an eruv is possible
according to the halachic tradition of Chabad-Lubavitch.
The rebuttal: As I mentioned previously, the purpose of this
rebuttal is not to judge the efficacy of an eruv for Crown Heights, but
only to prove beyond a shadow of a doubt that Crown Heights would not be
classified as a reshus harabbim according to the Alter Rebbe. Clearly,
Rabbi Levine’s entire argument was based on preconceived ideas about large city
eruvin, which he then shoehorned in the Alter Rebbe to fit.
[13] Rabbi
Levine in fact claims in his thesis that Crown Heights is not included in these
mechitzos. B’mechilos kvodo, he is simply incorrect, and it seems
that he did not even bother to ascertain if the mechitzos encompass
Crown Heights. Besides for the fact that we can make use of on four sides mechitzos
habbatim (which according to the Alter Rebbe is definitely sufficient),
there are mechitzos which are omed merubeh al haparutz that
encompass the entire borough. These mechitzos
were ascertained by rabbanim in Boro Park including members of Rav
Yechezkel Roth’s Bais Din.
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