Carrying in Public and the Use of an Eruv II

Last week, I began discussing many of the background issues
germane to whether one can erect an eruv to permit carrying in a city.
We discovered that the Torah prohibits carrying an object from one’s house or
any other enclosed area (halachically called a reshus hayachid),
to an area available to the general public, a reshus harabim, or vice
versa; or to carry an item four amos (about seven feet) or more within a
reshus harabim. Even when there is no Torah prohibition involved in
carrying the item, there may still be a rabbinic violation.

As we noted there, with reference to the melacha of
carrying on Shabbos, the terms reshus hayachid and reshus
harabim do not relate to the ownership of the respective areas, but are
determined by the extent that the areas are enclosed and how they are used. A reshus
hayachid could certainly be public property, and there are ways whereby an
individual could own a reshus harabim. I also mentioned that the
construction of an eruv consisting of poles and wire cannot permit
carrying in an area that is prohibited min haTorah. In addition, we
learned that a reshus harabim must meet very specific and complex
requirements, including:

(A) It must be unroofed (Shabbos 5a).

(B) It must be meant for public use or thoroughfare (Shabbos
6a).

(C) It must be at least sixteen amos (about twenty-eight
feet) wide (Shabbos 99a).

(D) According to most authorities, it cannot be inside an enclosed
area (cf., however, Be’er Heiteiv 345:7, quoting Rashba; and
Baal HaMaor, Eruvin 22a,quoting Rabbeinu Efrayim). The exact
definition of an “enclosed area” is the subject of a major dispute that I will
discuss.

(E) According to many authorities, it must be used by at least
600,000 people daily (Rashi, Eruvin 59a, but see Rashi ad loc. 6a
where he requires only that the city has this many residents). This is derived
from the Torah’s description of carrying into the encampment in the desert,
which we know was populated by 600,000 people.

(F) Many authorities require that it be a through street, or a
gathering area that connects to a through street (Rashi, Eruvin 6a).

Some authorities add additional requirements.

We explained that an area that does not meet the Torah’s
definition of a reshus harabim, yet is not enclosed, is called a karmelis.
One may not carry into, from or within a karmelis, following the same
basic rules that prohibit carrying into a reshus harabim. However, since
the prohibition not to carry in a karmelis is rabbinic in origin, Chazal
allowed a more lenient method of “enclosing” it.

At this point, let us continue our discussion.

600,000 People

An early dispute among Rishonim was whether one of the
requirements of a reshus harabim is that it be accessible to 600,000
people, the number of male Jews over twenty the Torah tells us left Egypt (see Tosafos,
Eruvin 6a s.v. keitzad). According to Rashi and others
who follow this approach, one may enclose any metropolis with a population
smaller than 600,000 with tzuros hapesach to permit carrying. (In some
places Rashi describes the city as having 600,000 residents, and in others
describes it as having 600,000 people using the area constantly. The exact
definition is the subject of much literature; see, for example, Shu”t
Mishkenos Yaakov #120 s.v. hinei harishon; and Shu”t Igros Moshe,
Orach Chayim 1:139:5.)

However, other early authorities contend that an area with less
than 600,000 people still qualifies as a reshus harabim, if it fulfills
the other requirements that I listed above. In their opinion, such an
area cannot be enclosed with tzuros hapesach. Although many authorities
hold this way, the accepted practice in Ashkenazic communities was to
follow the lenient interpretation and construct eruvin in places with
less than 600,000 people (see, for example, Aruch Hashulchan 345:18).
Nevertheless, the Mishnah Berurah discourages carrying in such an eruv,
since many Rishonim hold that an eruv in such a place is not
acceptable (364:8; Bi’ur Halacha to 345:7 and to 364:2). There are
different opinions as to whether Sefardim may follow this leniency,
although the prevalent practice today is for them to be lenient.

Modern City

Most large, metropolitan areas today are populated by more than
600,000 people. Some authorities still define many of our metropolitan areas as
a karmelis, based on the following definition: Any area less
concentrated than the Jews’ encampment in the desert is considered a karmelis.
Since this encampment covered approximately 50 square miles (or approximately
130 sq km), these authorities permit an eruv in any place where the
population density is less than 600,000 people per 50 square miles (Shu”t
Igros Moshe, Orach Chayim 4:87). However, other authorities consider any
metropolitan area or megalopolis containing 600,000 people to be a reshus
harabim, regardless of its population density. Does this mean that there is
no heter with which to construct an eruv in a large city? Indeed,
many authorities contend this (Shu”t Mishnas Rav Aharon 1:2).

A Large Breach

Nevertheless, the Chazon Ish presented a different
approach to permit construction of an eruv in a large contemporary city.
His approach requires an introduction.

In general, an area enclosed by three or four full walls cannot
be a reshus harabim (Eruvin 22a). What is the halacha if
each of the three sides of an area is enclosed for most of its length –
however, there are large gaps in the middle of the enclosure? For example, if
walls or buildings enclose most of an area – however, there are gaps in the
middle of the area between the buildings, where streets cross the city blocks.
Does the area in the middle, surrounded by buildings and other structures,
still qualify as a reshus harabim, or has it lost this status, because
it is mostly “enclosed”?

The basis for the question is the following: There is a general halachic
principle that an area that is mostly enclosed is considered enclosed, even in
its breached areas (Eruvin 5b, et al.). For example, a yard enclosed by
hedges tall enough to qualify as halachicwalls may be considered
enclosed, despite open areas between the hedges, since each side is
predominantly enclosed by either hedges or a house.

On the other hand, a breach wider than ten amos (about 17
feet, or about 5 meters) invalidates the area from being considered enclosed.
Therefore, one may not carry within a fenced-in area that has a 20-foot
opening, without enclosing the opening in some way.

The issue that affects the modern city is the following: Granted
that a large breach needs to be enclosed to permit carrying within the area, is
this required min haTorah or only rabbinically? If one encloses a large
area with walls that run for miles but have large gaps, is this area considered
enclosed min haTorah on the basis of its walls, or is it considered open
because of its gaps?

This question was debated by two great nineteenth-century
authorities, Rav Efrayim Zalman Margoliyos of Brody, known as the Beis
Efrayim, and Rav Yaakov of Karlin, the Mishkenos Yaakov. The Beis
Efrayim contended that a breach invalidates an enclosure only because of a
rabbinic prohibition and the area is considered enclosed min haTorah,
whereas the Mishkenos Yaakov held that the breach renders the area as a reshus
harabim min haTorah. The lengthy correspondence between these two
authorities covers a host of other eruv-related issues (Shu”t Beis
Efrayim, Orach Chayim # 25, 26; Shu”t Mishkenos Yaakov, Orach Chayim, #120-
122).

What difference does it make whether this area is considered
open min haTorah or miderabbanan, since either way one must
enclose the area?

The difference is highly significant. If we follow the lenient
approach, then even if the area in the middle meets all the other requirements
of a reshus harabim, the Beis Efrayim contends that it loses its
status as a reshus harabim because of its surrounding walls, notwithstanding
their large gaps – in which case it may be possible to construct an eruv.

On the other hand, the Mishkenos Yaakov contends that
this area is considered a reshus harabim because of the gaps, and we
ignore the walls. According to the Mishkenos Yaakov, it is impossible to
construct an eruv around this area.

How one rules in this dispute between these two gedolim affects
the issue of constructing an eruv in a contemporary city. Most modern
cities contain city blocks that consist predominantly of large buildings with
small areas between the buildings, and streets that are much narrower than the
blocks. One can easily envision that both sides of the street are considered
enclosed min haTorah, according to the Beis Efrayim’s analysis.
This, itself, does not sufficiently enclose our area, because the street is
open at both ends. However, at certain points of the city, the street dead-ends
into a street that is predominantly enclosed with buildings, fences, walls or
something else. The result is that this section of the city can now be
considered min haTorah as enclosed on three sides by virtue of the
parallel buildings along both sides of the street and those at its dead end.
Since, according to the Beis Efrayim, this area now qualifies as an
enclosed area min haTorah, he also holds that the entire area is
considered a reshus hayachid min haTorah.

The Chazon Ish now notes the following: Once you have
established that this part of the city qualifies as a reshus hayachid min
haTorah, this area is now considered completely enclosed halachically.
For this reason, other city blocks that are predominantly enclosed on both
sides of the street that intersect with this first area are now also considered
to be enclosed areas min haTorah. As a result, a large section of most
cities is considered min haTorah enclosed on at least three sides,
according to this calculation. Although one cannot carry in these areas miderabbanan
because of the “breaches” in their “enclosures,” they are no longer reshus
harabim min haTorah, and one can, therefore, enclose the entire area
with tzuros hapesach (Chazon Ish, Orach Chayim 107:5). As a
result of this calculation, the Chazon Ish concludes that many large
cities today qualify as a karmelis, and therefore one may construct tzuros
hapesach to permit carrying there.

However, other authorities reject this calculation for a variety
of reasons. Some contend, as explained above, that the gaps between the
buildings invalidate the enclosure, thus leaving the area a reshus harabim,
which cannot be enclosed (Shu”t Mishkenos Yaakov; Shu”t Mishnas Rav Aharon).

In conclusion, we see that a dispute among poskim over eruvin
is not a recent phenomena. In practice, what should an individual do? The
solution proposed by Chazal for all such issues is “Aseh lecha rav,
vehistaleik min hasafek – Choose someone to be your rav, and remove
yourself from doubt.” Your rav, or your halachic authority, can
guide you as to whether it is appropriate to carry within a certain eruv,
after considering the halachic basis for the specific eruv’s construction,
the level of eruv maintenance, and family factors. Never underestimate
the psak and advice of your rav!