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==Explanations of the ''tzurat ha-petah'' enclosure== | ==Explanations of the ''tzurat ha-petah'' enclosure== | ||
From a biblical perspective, there are two well-defined types of domains: ''reshut ha-yahid'' (a private domain) and ''reshut ha-rabbim'' (a public domain). Any other area is considered a ''makom patur'' (an exempt area). The definition of a ''reshut ha-yahid'' is an area with the minimum measurement of 4 ''tefahim ''by 4 ''tefahim''<ref name="ftn2"> A ''tefah'', or handbreadth, is a measure of length between 3 and 4 inches. An ''ammah,'' or cubit, is a measure of length between 18 and 24 inches.</ref> that is surrounded by walls of 10 ''tefahim'' high. A ''reshut ha-rabbim'', on the other hand,'' ''is a street that is at least 16 ''ammot''<sup>2</sup> wide. An open field, then, which is neither enclosed nor used by the public, is considered a ''makom patur'' on a biblical level. The biblical prohibition of carrying an item from one domain to another only applies to from a reshut ha-yahid to a reshut ha-rabbim or vice versa. Carrying between a ''makom patur'' and a ''reshut ha-rabbim'', or between a ''makom patur'' and a ''reshut ha-yahid'', would be permitted on a biblical level. To avoid inadvertent violations of ''Shabbat,'' however, the rabbis introduced a fourth type of domain called a ''karmelit''. This category includes some areas that would be considered a ''reshut ha-yahid'' on a biblical level and some areas that would be considered a ''makom patur'' on a biblical level. Continuing with our example, while an open field is a biblical ''makom patur'', on a rabbinic level it is a ''karmelit''. The rabbis forbade carrying from a ''karmelit'' to a ''reshut ha-yahid'' or ''reshut ha-rabbim''. In effect we treat a ''karmelit'' like a “public domain” on a rabbinic level.<sup> </sup><ref name="ftn3"> ''[[Shabbat]]'' 6a, Rambam'' Hilkhot [[Shabbat]]'' 14:1-7, ''Shulhan Arukh Orah Hayyim'' 345, ''Shulhan Arukh ha-Rav'' 345:19, ''Mishnah Berurah'' (Introduction to 345), ''Arukh ha-Shulhan'' ''Orah Hayyim'' 345:1.</ref> | <p class="indent">From a biblical perspective, there are two well-defined types of domains: ''reshut ha-yahid'' (a private domain) and ''reshut ha-rabbim'' (a public domain). Any other area is considered a ''makom patur'' (an exempt area). The definition of a ''reshut ha-yahid'' is an area with the minimum measurement of 4 ''tefahim ''by 4 ''tefahim''<ref name="ftn2"> A ''tefah'', or handbreadth, is a measure of length between 3 and 4 inches. An ''ammah,'' or cubit, is a measure of length between 18 and 24 inches.</ref> that is surrounded by walls of 10 ''tefahim'' high. A ''reshut ha-rabbim'', on the other hand,'' ''is a street that is at least 16 ''ammot''<sup>2</sup> wide. An open field, then, which is neither enclosed nor used by the public, is considered a ''makom patur'' on a biblical level. The biblical prohibition of [[carrying]] an item from one domain to another only applies to from a reshut ha-yahid to a reshut ha-rabbim or vice versa. [[Carrying]] between a ''makom patur'' and a ''reshut ha-rabbim'', or between a ''makom patur'' and a ''reshut ha-yahid'', would be permitted on a biblical level. To avoid inadvertent violations of ''[[Shabbat]],'' however, the rabbis introduced a fourth type of domain called a ''karmelit''. This category includes some areas that would be considered a ''reshut ha-yahid'' on a biblical level and some areas that would be considered a ''makom patur'' on a biblical level. Continuing with our example, while an open field is a biblical ''makom patur'', on a rabbinic level it is a ''karmelit''. The rabbis forbade [[carrying]] from a ''karmelit'' to a ''reshut ha-yahid'' or ''reshut ha-rabbim''. In effect we treat a ''karmelit'' like a “public domain” on a rabbinic level.<sup> </sup><ref name="ftn3"> ''[[Shabbat]]'' 6a, Rambam'' Hilkhot [[Shabbat]]'' 14:1-7, ''Shulhan Arukh Orah Hayyim'' 345, ''Shulhan Arukh ha-Rav'' 345:19, ''Mishnah Berurah'' (Introduction to 345), ''Arukh ha-Shulhan'' ''Orah Hayyim'' 345:1.</ref></p> | ||
<p class="indent"> Although Orthodox Jews generally observe rabbinic enactments with the same zeal as they would observe biblical commandments, the laws of ''eruvin ''demonstrate an exception to that principle<nowiki>; significant leniencies are based on the fact that many of its details are only rabbinic in nature. There is a general assumption amongst the </nowiki>''poskim'' (rabbinic authorities) that an enclosure created by several ''tzurot ha-petah'' would not be sufficient to circumvent a biblical prohibition against [[carrying]] on ''[[Shabbat]]''. Only once the area can be determined to be a ''makom patur''—an area from which [[carrying]] to a'' reshut ha-yahid'' or'' reshut ha-rabbim ''entails a rabbinic, and not biblical, prohibition—can the construction of an eruv using the ''tzurat ha-petah ''ensue. In other words, a ''tzurat'' ''ha-petah'' is effective as long as one can be sure that the area is not a true ''reshut'' ''ha-rabbim''. There are two reasons offered for this assumption. </p> | |||
<p class="indent">Rabbi Yosef Teomim, author of an important commentary on the ''Shulhan Arukh'' called the ''Pri Megadim'', raised the possibility that the ''tzurat ha-petah ''is only effective in enclosing an area according to rabbinic law. According to biblical law, however, the ''tzurat ha-petah'' is ineffective. Subsequently, using a ''tzurat ha-petah'' to enclose an area that is considered to be a “public domain” on a biblical level would simply be an insufficient means to convert it into a “private domain.” A ''karmelit'', however, is considered a ''makom patur'' on a biblical level and is only considered “public” by the rabbis; thus by erecting a rabbinically sanctioned enclosure, one successfully converts it into a “private domain.”<ref name="ftn4"> ''Bi’ur Halakhah'' 362:10 s.v. ''ke-she-kol'' cites the opinion of the ''Pri Megadim''. See also ''Bi’ur Halakhah'' 364:2 s.v. ''ve-ahar''. </ref> </p> | |||
<p class="indent">The ''Hazon Ish'', Rabbi Avraham Karlitz, however, strongly disagreed with the ''Pri Megadim''’s idea. He proved from the ''gemara'' that a ''tzurat ha-petah'' certainly functions as a wall on a biblical level. The ''gemara'' states that in order to avoid ''kil’ayim'', the prohibition of planting two different kinds of seeds together, one may construct a ''tzurat ha-petah'' to divide between the two patches of plants. Therefore, Rabbi Karlitz concluded that the construction of a ''tzurat ha-petah'' serves as a wall even where the wall fulfills a biblical requirement.<ref name="ftn5"> ''Hazon Ish Orah Hayyim'' 70:13.</ref> </p> | |||
<p class="indent">In order to defend the ''Pri Megadim'', some later authorities suggested that there is room to distinguish between the wall that is necessary to permit [[carrying]] on ''[[Shabbat]]'' and the wall necessary to separate plants of different species. The walls in the realm of ''kil’ayim'' serve merely as a divider between two areas and as such the ''tzurat ha-petah'' accomplishes this task even on a biblical level. To permit [[carrying]] on ''[[Shabbat]]'', however, the borders of a “private domain” need to encircle it and make it noticeably differentiated from its surroundings.<ref name="ftn6"> An elaboration of this topic can be found in Rabbi Hershel Schachter’s ''Be-Ikvei ha-Tzon,'' ''Siman'' 13:1.</ref> </p> | |||
<p class="indent">Another approach in explaining the basis for limiting the use of a ''tzurat ha-petah'' enclosure to a ''karmelit'' emerges from a comment of Tosafot.<ref name="ftn7"> ''Tosafot Eruvin'' 22a s.v. ''kashya''.</ref> The ''gemara'' explains that all opinions agree that a “flimsy barrier” cannot serve as a partition if there is traffic that regularly crosses that barrier, but a “sturdy barrier” functions as a partition even if traffic passes through it. Tosafot commented that if an area is enclosed on three sides and only requires a wall on the fourth side on a rabbinic level, even if the fourth wall is “flimsy” and traffic passes through it, it nonetheless serves as a valid partition. The Maharam of Rotenberg extended the idea of Tosafot to say that in any situation that only requires a wall on a rabbinic level in order to permit [[carrying]], that wall could be “flimsy” and is nevertheless not nullified by the fact that traffic passes through it. Based on the leniency of the Maharam, classical ''poskim'' assume that a ''tzurat ha-petah'' acts as a “flimsy wall” which functions as a partition if the area is only considered a “public domain” on a rabbinic level. Therefore, the consensus of ''poskim'' is that a ''tzurat ha-petah'' only permits [[carrying]] in the enclosed area if the area would have otherwise only been a biblical'' makom patur''.<ref name="ftn8"> ''Mordekhai, Eruvin Remez'' 509. See further in Rabbi Hershel Schachter’s article titled “The Laws of Eruvin—An Overview,” ''The Journal of Halacha and Contemporary Society'' 5 (1984): 131-150. </ref></p> | |||
==Determination of a ''reshut ha-rabbim''== | ==Determination of a ''reshut ha-rabbim''== | ||
How does one decide whether any given area is biblically considered a “public domain”? The ''gemara'' derived the 39 ''melahot'' (principal categories of labor) prohibited on ''[[Shabbat]]'' from the significant activities done in the construction of the ''mishkan'' (Tabernacle) in the desert. The ''gemara'' implicitly assumed that the transportation of the ''mishkan'' was also included in the mitzvah of constructing the ''mishkan''. Therefore, the details of the prohibition against [[carrying]] on ''[[Shabbat]]'' can be derived from how the ''mishkan'' was transported in the desert. The wagons containing the parts of the ''mishkan'' could only have traveled on streets with a minimum width of 16 ''ammot''<nowiki>; thus in order for any area to be considered a “public domain” it must include a street at least 16 </nowiki>''ammot'' wide.<ref name="ftn9">''Shabbat'' 99a</ref> However, in practice, this definition doesn’t help very much since in almost all places where an eruv is desired, the streets are wider than 16 ''ammot''. One of the potential considerations in determining whether a particular area is a ''reshut ha-rabbim ''is the size of its population. Again, this criterion is based on the derivation of the laws of carrying on ''Shabbat'' from the transportation of the ''mishkan'' in the desert. Rashi'' ''and Tosafot wrote that just like there were 600,000 people in the Jewish camp in the desert, the definition of a public domain for the purposes of the prohibition of carrying on ''Shabbat'' requires a minimum population of 600,000.<ref name="ftn10"> The discussion of the opinion of Rashi and Tosafot as well as the dissenting opinions can be found in ''Tur'' and ''Shulhan Arukh Orah Hayyim'' 345:7. In the Torah’s census of the Jewish people, there were found to be slightly over 600,000 men between the ages of 20 and 60. While this number does not include women, children, elderly, and converts, Tosafot (''Eruvin'' 6a s.v. ''keitzad'') concluded that we can only define a “public domain” based on a number that the Torah states explicitly.</ref> There is a dispute as to whom is included in the count of population when determining the status of an area. The opinions range between counting all residents, counting all people who roam the streets of the area, and counting just the people who walk on a particular street.<ref name="ftn11"> ''Mishnah Berurah'' 345:24, R. Moshe Feinstein in ''Iggerot Moshe Orah Hayyim'' 1:139.</ref> Based on this assumption, many communities in Eastern Europe relied on a local eruv, considering their small villages and towns to be a ''makom patur'' (and not a “public domain”) on a biblical level. Ramban<ref name="ftn12"> ''Eruvin'' 59a. See further in Rabbi Hershel Schachter’s article titled “''Be-Inyan ha-Eruv be-Manhattan''” in ''Kol Tzvi ''v. 7. </ref> explained that the opinion of Tosafot which required a minimum population of 600,000 is limited to streets within a city. For a local street within the city to be considered public, it requires a certain level of usage. In contrast, a highway from one city to another, wrote Ramban, is automatically considered a public domain even without any minimum population simply by its definition as a major public road. It is possible to suggest that Ramban actually ''defined'' the biblical ''reshut ha-rabbim'' as a highway, and he viewed all of the guidelines about determining whether a given area is a ''reshut ha-rabbim'' as a test of whether it is sufficiently similar to a highway or not. Some rabbis felt that this approach of Rashi and Tosafot in defining a public domain was well-accepted and served as a basis for the modern eruv.<ref name="ftn13"> ''Taz'' ''Orah Hayyim'' 345:6, ''Arukh ha-Shulhan Orah Hayyim'' 345:18</ref> Others, however, argued that many ''rishonim'' (medieval rabbinic authorities) disregarded the idea of Rashi and Tosafot and assumed that there was no minimum population for an area to be considered a ''reshut ha-rabbim''.<ref name="ftn14"> ''Mishkenot Yaʻakov Orah Hayyim'' 120.</ref> Therefore, other suggestions were offered in order to explain the basis for local ''eruvin'' in Eastern Europe. The ''Arukh HaShulhan'' interpreted a passage in the ''Yerushalmi'' to mean that a “public domain” is defined as a street that is known to be the main street of the town. If there are multiple main streets in town, however, no one of them can be identified as a ''reshut ha-rabbim''. Accordingly, the larger the city, the more likely it would be for the multiplicity of streets to cause there to be no particular main street.<ref name="ftn15"> ''Arukh ha-Shulhan Orah Hayyim'' 345:19-25.</ref> Yet, the inference of the ''Arukh HaShulhan'' has traditionally been considered counter-intuitive and has not been accepted.Another approach to defend the practice of local ''eruvin'' in Eastern Europe was that of Rabbi Shlomo Dovid Kahana. Rabbi Kahana wrote that a ''reshut ha-rabbim ''needs to be a street that passes from one end of the city to the other without making any significant turns (''mefulash''). If, however, the main street turns at a right angle or comes to a dead end, the area is considered a ''makom'' ''patur'' on a biblical level. Using this same approach, it is again the case that the larger the city the more likely it is to be a ''makom patur'' because of the increased likelihood that there will not be any streets which pass straight through the city. While Rav Moshe Feinstein disagreed with this leniency, Rav Moshe’s own original interpretation of this requirement (''mefulash'') is not generally accepted.<ref name="ftn16"> Rav Moshe Feinstein in ''Iggerot Moshe Orah Hayyim'' 5:28:6 understood the requirement of having a main street pass from one end of the city to the other as referring to the fact that every part of the street needs to have the dimensions of a public alleyway. He assumed that if one section was roofed or narrower than 16 ''ammot'' wide, the entire street could not be considered as “a public domain.” See also ''Iggerot Moshe Orah Hayyim'' 140.</ref>It seems reasonable to propose, based on the Ramban mentioned earlier, that a highway that passes through a city is automatically considered a “public domain” by its definition as a public road. Therefore, a highway is not subject to the criterion of passing straight through the city in order to be considered a “public domain.” Whereas intracity streets are not considered “public” if they turn or come to a dead end, highways are “public” by definition, irrespective of whether they twist or turn. | How does one decide whether any given area is biblically considered a “public domain”? The ''gemara'' derived the 39 ''melahot'' (principal categories of labor) prohibited on ''[[Shabbat]]'' from the significant activities done in the construction of the ''mishkan'' (Tabernacle) in the desert. The ''gemara'' implicitly assumed that the transportation of the ''mishkan'' was also included in the mitzvah of constructing the ''mishkan''. Therefore, the details of the prohibition against [[carrying]] on ''[[Shabbat]]'' can be derived from how the ''mishkan'' was transported in the desert. The wagons containing the parts of the ''mishkan'' could only have traveled on streets with a minimum width of 16 ''ammot''<nowiki>; thus in order for any area to be considered a “public domain” it must include a street at least 16 </nowiki>''ammot'' wide.<ref name="ftn9">''Shabbat'' 99a</ref> However, in practice, this definition doesn’t help very much since in almost all places where an eruv is desired, the streets are wider than 16 ''ammot''. One of the potential considerations in determining whether a particular area is a ''reshut ha-rabbim ''is the size of its population. Again, this criterion is based on the derivation of the laws of carrying on ''Shabbat'' from the transportation of the ''mishkan'' in the desert. Rashi'' ''and Tosafot wrote that just like there were 600,000 people in the Jewish camp in the desert, the definition of a public domain for the purposes of the prohibition of carrying on ''Shabbat'' requires a minimum population of 600,000.<ref name="ftn10"> The discussion of the opinion of Rashi and Tosafot as well as the dissenting opinions can be found in ''Tur'' and ''Shulhan Arukh Orah Hayyim'' 345:7. In the Torah’s census of the Jewish people, there were found to be slightly over 600,000 men between the ages of 20 and 60. While this number does not include women, children, elderly, and converts, Tosafot (''Eruvin'' 6a s.v. ''keitzad'') concluded that we can only define a “public domain” based on a number that the Torah states explicitly.</ref> There is a dispute as to whom is included in the count of population when determining the status of an area. The opinions range between counting all residents, counting all people who roam the streets of the area, and counting just the people who walk on a particular street.<ref name="ftn11"> ''Mishnah Berurah'' 345:24, R. Moshe Feinstein in ''Iggerot Moshe Orah Hayyim'' 1:139.</ref> Based on this assumption, many communities in Eastern Europe relied on a local eruv, considering their small villages and towns to be a ''makom patur'' (and not a “public domain”) on a biblical level. Ramban<ref name="ftn12"> ''Eruvin'' 59a. See further in Rabbi Hershel Schachter’s article titled “''Be-Inyan ha-Eruv be-Manhattan''” in ''Kol Tzvi ''v. 7. </ref> explained that the opinion of Tosafot which required a minimum population of 600,000 is limited to streets within a city. For a local street within the city to be considered public, it requires a certain level of usage. In contrast, a highway from one city to another, wrote Ramban, is automatically considered a public domain even without any minimum population simply by its definition as a major public road. It is possible to suggest that Ramban actually ''defined'' the biblical ''reshut ha-rabbim'' as a highway, and he viewed all of the guidelines about determining whether a given area is a ''reshut ha-rabbim'' as a test of whether it is sufficiently similar to a highway or not. Some rabbis felt that this approach of Rashi and Tosafot in defining a public domain was well-accepted and served as a basis for the modern eruv.<ref name="ftn13"> ''Taz'' ''Orah Hayyim'' 345:6, ''Arukh ha-Shulhan Orah Hayyim'' 345:18</ref> Others, however, argued that many ''rishonim'' (medieval rabbinic authorities) disregarded the idea of Rashi and Tosafot and assumed that there was no minimum population for an area to be considered a ''reshut ha-rabbim''.<ref name="ftn14"> ''Mishkenot Yaʻakov Orah Hayyim'' 120.</ref> Therefore, other suggestions were offered in order to explain the basis for local ''eruvin'' in Eastern Europe. The ''Arukh HaShulhan'' interpreted a passage in the ''Yerushalmi'' to mean that a “public domain” is defined as a street that is known to be the main street of the town. If there are multiple main streets in town, however, no one of them can be identified as a ''reshut ha-rabbim''. Accordingly, the larger the city, the more likely it would be for the multiplicity of streets to cause there to be no particular main street.<ref name="ftn15"> ''Arukh ha-Shulhan Orah Hayyim'' 345:19-25.</ref> Yet, the inference of the ''Arukh HaShulhan'' has traditionally been considered counter-intuitive and has not been accepted.Another approach to defend the practice of local ''eruvin'' in Eastern Europe was that of Rabbi Shlomo Dovid Kahana. Rabbi Kahana wrote that a ''reshut ha-rabbim ''needs to be a street that passes from one end of the city to the other without making any significant turns (''mefulash''). If, however, the main street turns at a right angle or comes to a dead end, the area is considered a ''makom'' ''patur'' on a biblical level. Using this same approach, it is again the case that the larger the city the more likely it is to be a ''makom patur'' because of the increased likelihood that there will not be any streets which pass straight through the city. While Rav Moshe Feinstein disagreed with this leniency, Rav Moshe’s own original interpretation of this requirement (''mefulash'') is not generally accepted.<ref name="ftn16"> Rav Moshe Feinstein in ''Iggerot Moshe Orah Hayyim'' 5:28:6 understood the requirement of having a main street pass from one end of the city to the other as referring to the fact that every part of the street needs to have the dimensions of a public alleyway. He assumed that if one section was roofed or narrower than 16 ''ammot'' wide, the entire street could not be considered as “a public domain.” See also ''Iggerot Moshe Orah Hayyim'' 140.</ref>It seems reasonable to propose, based on the Ramban mentioned earlier, that a highway that passes through a city is automatically considered a “public domain” by its definition as a public road. Therefore, a highway is not subject to the criterion of passing straight through the city in order to be considered a “public domain.” Whereas intracity streets are not considered “public” if they turn or come to a dead end, highways are “public” by definition, irrespective of whether they twist or turn. | ||
