The Reshus HaRabbim Issue part 1
Large cities in Israel have been halachically enclosed by eruvin for many decades. Little controversy is associated with these eruvin. Members of communities across the spectrum of orthodox society rely on these eruvin to carry objects in public on Shabbos. In North America, however, the widespread construction of eruvin in large cities is a relatively recent phenomenon. In contrast to the situation in Israel, the process of building such eruvin is frequently attended by controversy and acrimony. Let us explore the halachic underpinning of this distinction between the two situations: the definition of reshus harabbim.
1. THE FOUR DOMAINS
Chazal1 identify four categories of reshuyos (domains) which relate to the prohibition of carrying on Shabbos (and, to a certain extent, Yom Tov). Three of these domains are d'oraysa in origin. Chazal subsequently divided one of these domains into two categories. The three domains d'oraysa are: private (reshus hayachid), public (reshus harabbim), and neutral (makom ptur). Chazal divided the domain of makom ptur in two: exempt (still known as makom ptur) and neutral (carmelis). Certain leniencies apply to a makom ptur2. Since, however, a makom ptur d'rabbanan is by definition an area smaller than four tefachim square, these leniencies are not relevant to our discussion of a community eruv encompassing larger areas.
The Torah only forbade carrying objects in and into a reshus harabbim. Carrying objects within and between both reshus hayachid and carmelis is permitted d'oraysa. Chazal banned carrying in and into a carmelis as well. Chazal also limited the definition of reshus hayachid. According to most Rishonim3 an area surrounded by walls on three of its four sides is a reshus hayachid d'oraysa. Chazal mandated some form of enclosure on the fourth side as well.
Halacha distinguishes between the enclosure necessary to convert a carmelis into a reshus hayachid and the enclosure necessary to convert a reshus harabbim into a reshus hayachid. The Gemara4 relates that Yerushalayim would have been considered a reshus harabbim had its doors not been closed at night5. The Poskim disagree about whether these doors had to have been closed me'd'oraysa or me'd'rabbanan6S. Some sources maintain that me'd'oraysa a tzuras hapesach7 would have sufficed. Others maintain that in reshus harabbim delasos are required me'd'oraysa. We shall b'ezras Hashem return to this case in Section 6 below8.
This requirement is limited, in any event, to reshus harabbim. Areas that fall into the category of carmelis do not require delasos to allow carrying therein. The device of tzuras hapesach is sufficient in such cases. It is, therefore, clearly advantageous to have an area defined halachically as carmelis as opposed to reshus harabbim. Besides the lesser expense involved in building a tzuras hapesach as opposed to delasos, another issue thus avoided is the use of delasos that cannot be closed at night. Such delasos are not totally comparable to the doors of Yerushalayim that were closed at night. This eliminates the knotty halachic problem of defining to what extent the doors must be - at least theoretically - suitable to be closed9.
Let us now explore the various definitions of reshus harabbim.
2. DEFINING RESHUS HARABBIM
The most stringent definition of reshus harabbim - and that which is most loyal to the text of the Talmud - is recorded by the Rambam10: "Which [domains] are reshus harabbim? Deserts, forests, marketplaces and roads that open into them, if the road is sixteen amos wide and is not roofed over."
Poskim that rule according to the Rambam's opinion might not allow the construction of a tzuras hapesach-based eruv in any modern city. The vast majority of eruvin include many streets that are sixteen amos broad (sidewalks are included in the measurement - they, too, serve as "roads" - for pedestrian traffic).
Other Rishonim, however, disagree with the Rambam. Rashi11 states that a reshus harabbim is: "...Sixteen amos broad. And a city in which there are 600,000 people that has no wall, or whose main thoroughfare runs straight from gate to gate - that is thus `open' just as [the expanse was `open'] in the travels of the tribes in the Midbar [- is reshus harabbim]." The Tosafos12 note that an early Rishon, the Ba'al Halachos Gedolos ("BeHaG"), concurs with this view that establishes an additional criterion to establish an area as reshus harabbim - the presence of 600,000 people.
The Acharonim13 tabulate the numbers of Rishonim on both sides of this issue. These numbers run literally into the dozens. Obviously no definitive firm ruling can be reached in a halachic battle royal of such proportions and weight. In practice, most Poskim have relied on the opinion that an area should be classified as reshus harabbim only when the criterion of 600,000 people is met. The Mishna Berura14 says that while a Ba'al Nefesh should be machmir personally, he may not protest against those who rely on the more lenient opinion.
3. SPACE AND TIME FACTORS: SPACE FRAME OF MEASUREMENT
We now must define in what space and time the 600,000 people must be present and counted to meet the criterion for reshus harabbim. If, for example, the space in which we count people would be all the areas included within the boundaries of a state, and the time over which we count the people therein would be a month, then of course practically every place in the world would be reshus harabbim. If, on the other hand, the space in which we count people would be a single city block, and the time over which we count the people therein would be a minute, then of course practically no place in the world would be a reshus harabbim.
These factors are matters of great contention among the Poskim. Rashi's previously quoted statement seems to suggest that the space frame of measurement is the entire city. Rashi also seems to hold that there is no time frame of measurement. Thus, a literal interpretation of Rashi's position would lead us to the conclusion that any city that contains 600,000 people (most likely including both residents and commuters), is a reshus harabbim in its entirety. Some Poskim rule accordingly15.
Rabbi Moshe Feinstein16 interprets Rashi's opinion differently. The Tosafos17 elsewhere discuss the parameters of reshus harabbim. The Tosafos state: "...All of our reshuyos harabbim are in fact carmelis, because our streets are not sixteen amos wide, nor do 600,000 people travel in it..." Reb Moshe notes the discrepancy between the plural tense at the beginning of the statement and the single tense at the end of the statement. Reb Moshe resolves the apparent contradiction with a chiddush l'halacha: In a city that contains a total of 600,000 people, every street is considered reshus harabbim. Reb Moshe interprets the previously mentioned Rashi in a similar vein: A city through which 600,000 people travel is a reshus harabbim, and therefore every street in that city that is at least sixteen amos wide is a reshus harabbim (that can only be rectified al pi halacha by way of delasos).
This approach is significantly more lenient than the first approach that we examined. The former approach views any city in which 600,000 residents and/or commuters are present as reshus harabbim. The latter approach requires that the 600,000 people must be present in the streets to make up a reshus harabbim. People who remain inside their homes are not included in the halachic tally.
In later teshuvos18 Reb Moshe further clarifies his approach. He estimates that, to assume that 600,000 people frequent the streets of a city, the city must be inhabited by four to five times that amount of people. He further refines his approach by stating two limitations: a) Areas included in municipal boundaries but separated by geographical barriers (viz., Manhattan, which is separated from Brooklyn by a river) are not to be combined in the halachic tally; and, b) A city whose municipal boundaries are very broad is not measured as one unit. Each twelve mil by twelve mil block (approximately eight miles by eight miles) is measured separately19. The rationale underlying this ruling is that the encampment of Bnei Yisroel in the Midbar - the source of the halachos of hotza'a and reshuyos - was of such dimensions. These are therefore the defining dimensions of reshus harabbim.
The most lenient approach is that found in the text of the Shulchan Aruch20: "Some say that any [street] which is not traversed by 600,000 people every day is not a reshus harabbim."
This is obviously a very lenient definition. The Mishna Berura21 writes: "I searched through all the Rishonim who maintain this opinion [that the presence of 600,000 people is necessary to establish a reshus harabbim] and did not find this criterion [that the people pass through every day] mentioned in their writings, rather only a criterion that 600,000 people can be found [occasionally] in that place." Although the Mishna Berura echoes the sentiment of many Poskim, the Shulchan Aruch's ruling is grounded in legitimate sources22. Other Poskim offer their own interpretations of the manner in which we count the 600,000 people.
It seems that the generally accepted approach is that of the Beis Ephraim23. The Beis Ephraim and the Mishkenos Ya'akov24 argued the case of eruvin in modern metropolitan areas. Their teshuvos provide the main resource of material both l'kulla (Beis Ephraim) and l'chumra (Mishkenos Ya'akov) on this subject. The approach of the Beis Ephraim is summarized by Rabbi Elimelech Lange25: "The criterion of 600,000 consists of three [conditions]: a)`Metzuyim' - that 600,000 people should be present in the area; b) `Bok'im' - that they should frequently travel along the specific street in question; c) `Bechol yom' - that it be possible that they might alltravel on that street in one day. This is the language of the Beis Ephraim in his teshuva: `According to Rashi it is necessary that a road possess the capacity to bear the traffic of the 600,000 people present in the environs, so that it is possible that all those people might pass through that street in one day.'"
4. SPACE AND TIME FACTORS: TIME, AND DIFFERENCES L'HALACHA
By now it should be evident that the Poskim are not in agreement on the period over which we count the 600,000 people. It seems at first that according to Reb Moshe's opinion the 600,000 are tallied from a "freeze-frame" perspective. This would mean that there must be some moment at which there are 600,000 people out in the streets of the area in question to establish it as a reshus harabbim. It is clear, however, from Reb Moshe's later teshuvos26 that this is not accurate. In fact, Reb Moshe held that there must be at least some days during the year during which "throughout the time that people normally leave their houses" there are 600,000 people in all the streets together every single moment of the day. According to the Beis Ephraim, however, the tally is established over the course of an entire day, i.e., if the sum of travellers on the street over the course of an entire day adds up to 600,000, the street qualifies as a reshus harabbim.
(Note: By presenting only a few specific Poskim we may be guilty of oversimplification. In reality, of course, many, many more Poskim have written opinions on these issues. We have limited our discussion to a few salient examples in the hope of avoiding confusion and achieving clarity. Those interested in further breadth and depth may find more material in the sources cited in the footnotes.)
An additional noteworthy distinction between these two approaches pertains to the question of which streets are considered reshus harabbim under the relevant conditions. According to Reb Moshe, every street within an area in which we find 600,000 people in the streets together is a reshus harabbim. According to the Beis Ephraim, only a street frequented by the 600,000 people that possesses the theoretical capacity to hold them all over the course of a day is a reshus harabbim. The practical difference would concern side streets in an area that meets Reb Moshe's criteria. According to the Beis Ephraim, only the main streets in that area would be precluded from using a tzuras hapesach eruv27. According to Reb Moshe, however, every street in that area (which is at least sixteen amos broad) would require delasos to allow carrying therein.
5. ADDITIONAL FACTORS IN DETERMINING RESHUS HARABBIM STATUS
We must make three other significant points concerning the discussion of how we count the 600,000 people. These points concern the issue of who is included in that count. The first point is that women and children are also included in this tabulation, as are non-Jews28. At first glance this statement may seem surprising, as none of these groups were included in the census of anshei chayil in the Midbar from which we derive this requirement. Several explanations of this ruling are to be found in the Poskim. Reb Moshe29 explains that in the Midbar, too, the600,000 people in the streets were not all men. The total population was in the order of a ratio of four or five times 600,000 people. The assumption is, therefore, that 600,000 people would be out in public at certain times30. We may deduce another possible explanation from the Rashbam's31 statement that the areas of encampment of all the shevatim other than Shevet Levi were not reshus harabbim. The area of Shevet Levi only was a reshus harabbim because all the men used to come there on occasion to learn Torah from Moshe Rabbeinu. It is not that women, children and even non-Jews were not counted. In that particular scenario in the Midbar they were not part of the tzibbur that gathered to comprise the shiur of reshus harabbim.
Another important point to discuss about the shiur of 600,000 is the question of whether travellers within automobiles are included in the halachic tally. This question arose in the nineteenth century concerning the status of railroad tracks over which trains carrying a total of more than 600,000 people a day travelled. The Aruch HaShulchan32 rules that train tracks are considered reshus harabbim. Reb Moshe33 rules that travellers in cars are also included in the halachic tally of 600,000 people. This is the generally accepted approach34.
A final point in this regard. It is generally accepted that a sixteen amos wide intercity highway is a reshus harabbim even if 600,000 people do not travel on it35. In the United States this halacha usually does not cause problems in building eruvin. Most such highways are usually controlled access interstates and the like. They are generally significantly lower or higher than the surrounding areas, thus allowing us to regard them as distinct, walled off domains. They therefore do not have to be considered when building an eruv.
Converted by Andrew Scriven