The Reshus HaRabbim Issue part 2
6. THE EXTRAORDINARY CHAZON ISH
With a most extraordinary chiddush l'halacha, the Chazon Ish36 provides a halachic basis for allowing the construction of eruvin in many areas that might otherwise be precluded from enclosure by an eruv.
Two general issues considered in the discussions of the Gemara in Messeches Eruvin are asu rabbim u'mivatlei mechitzta37 - whether the passage of many people through a wall renders it invalid; and omed merubeh al haparutz k'omed dami38 - whether an area whose perimeter is mostly enclosed may be considered wholly enclosed.
The issue of asu rabbim u'mivatlei mechitzta is argued by two Amoraim. Rabbi Yochanan holds that the passage of many people through a wall renders it invalid; Rabbi Eliezer disagrees. According to the Mishna Berura39, this disagreement has major ramifications l'halacha. If we were to accept Rabbi Yochanan's approach, almost no urban tzuras hapesach eruv would be valid. Utility poles inevitably cross over city streets, and city streets fall into the category of asu rabbim. Only if we rely on the approach of Rabbi Eliezer may such tzuras hapesach eruvin be valid - in his view, the rabbim are not mivatlei mechitzta. The Rishonim do not provide an explicit ruling on this issue. It is therefore one of the subjects of the conflict between the Mishkenos Ya'akov - who decides in favor of Rabbi Yochanan's opinion; and the Beis Ephraim - who decides in favor of Rabbi Eliezer's opinion. The Mishna Berura writes that the lack of a clearcut decision l'kulla in the writings of the Rishonim is another reason that a Ba'al Nefesh should not rely on urban tzuras hapesach eruvin. The Aruch HaShulchan40 and Chazon Ish41, however, both accept the ruling of the Beis Ephraim halacha l'ma'aseh: lo asu rabbim u'mivatlei mechitzta.
Let us now examine how the issue of omed merubeh al haparutz k'omed dami concerns us. In its basic sense this principle means that in an area that is ten amos by ten amos square (100 square amos), which means that it has a perimeter of forty amos, as long as there is on that perimeter a total of at least twenty-one amos of wall, consisting of somewhat over five amos of wall on each side of the perimeter, me'd'oraysa the entire area is considered halachically enclosed, and therefore a reshus hayachid d'oraysa. Me'd'rabbanan, if any single break in the wall of a city is longer than ten amos across, it requires a tikkun - a tzuras hapesach, etc.
Let us analyze a case where a reshus harabbim such as a highway runs through a break in the wall. There is no doubt that at least me'd'rabbanan such a break requires a tikkun, since a reshus harabbim is by definition at least sixteen (more than ten) amos wide. The question, however, is, does this reshus harabbim even negate the principle of omed merubeh al haparutz me'd'oraysa? The Mishkenos Ya'akov proves from the Gemara's discussions of Yerushalayim42 that such a situation requires a tikkun me'd'oraysa. Yerushalayim was surrounded by walls of omed merubeh, yet nonetheless the breaks in the wall caused it to be considered a reshus harabbim me'd'oraysa. The Mishkenos Ya'akov concludes that the principle of omed merubeh al haparutz k'omed dami does not apply to cases where the breaks in the wall include streets thatfall into the category of reshus harabbim.
The Chazon Ish rejects the proof from Yerushalayim. The statement that if not for its doors Yerushalayim would have been considered a reshus harabbim was made by Rabbi Yochanan, who holds asu rabbim u'mivatlei mechitzta, therefore negating the omed merubeh here. The Chazon Ish, of course, rules in accordance with Rabbi Eliezer's opinion that lo asu rabbim u'mivatlei mechitzta. Even, therefore, if Yerushalayim had not had doors, the omed merubeh would have assured that it was a reshus hayachid d'oraysa43.
The Chazon Ish does agree with the Mishkenos Ya'akov - to a certain extent. The Chazon Ish concedes that a reshus harabbim may negate omed merubeh, but only where the reshus harabbim is "mefulash," i.e., where it follows a continuous, straight, uninterrupted line. If, however, the street that is a reshus harabbim is obstructed at some point by a wall or building that either ends the street or causes it to deviate significantly from a straight line, it then loses its status of reshus harabbim me'd'oraysa. A straight street only has the two walls on either side of it. When, however, the street is obstructed by a building, etc. (fig. 16) then that building essentially becomes its third wall - qualifying it as a reshus hayachid d'oraysa.
Based on these two foundations, the Chazon Ish builds an extraordinary chiddush: A city in which at least one street ends in an obstructed dead end does not have a reshus harabbim d'oraysa!
Let us examine the scene that the Chazon Ish himself draws (fig. 17). The Chazon Ish writes (free translation):
In such a case we will not find a reshus harabbim [d'oraysa] even if the streets are sixteen amos wide and 600,000 people traverse them. `B' Street is a true reshus hayachid d'oraysa. It has three walls of omed merubeh. Despite the fact that `A' St. and `C' St. pass through breaks in the `walls' of `B' St., and the fact that rabbim traverse these streets, the walls are not negated. A break of ten or more amos in an enclosure precludes one from carrying in that enclosed area only me'd'rabbanan. Me'd'oraysa no break in an enclosure that is omed merubeh can negate the enclosure.
Since `B' St. is now a reshus hayachid, `A' St. and `C' St. are reshuyos hayachid as well. They, too, now possess three walls: The points at which they each open into `B' St. are now considered halachically sealed - as if by walls - by [the omed merubeh walls of] `B' St., now regarded in halacha as a courtyard surrounded by walls on three sides...
In a case, however, where there are only two [intersecting] streets, such as where `B' St. and `C' St. intersect and there is no building at the end of `B' St., we cannot employ the principle of omed merubeh. We can only utilize omed merubeh where each "omed" can create a reshus hayachid on its own [i.e., some structure pre-exists on each of three sides and we are only using omed merubeh to fill the gaps].
The Chazon Ish concludes:
We derive from this that in our day and age all the marketplaces and roads in even the greatest metropolises are truly reshus hayachid d'oraysa. In all of them you will find [at least] one street enclosed by three walls that is therefore considered a reshus hayachid d'oraysa. All the streets that intersect this street will therefore also become reshuyos hayachid. They may therefore be rectified with tzuras hapesach [as opposed to the delasos required for reshus harabbim]. The Mishna Berura in siman 345 wrote at length about how difficult it is to be lenient [only] based on less than 600,000 people travelling on a highway upon which many people travel and do business. According, however, to what has just been said the heter for our cities is clear and broad.
Other Acharonim (including Reb Moshe) disagree with the Chazon Ish44, but the Chazon Ish's great stature, especially in Hilchos Eruvin45, lends considerable credence to his views.
7. CONCLUSION
We have obviously seen many different conflicting approaches to the issue of defining reshus harabbim ba'zman hazeh. As we have stated previously, it is not our intention here to render decisions on halacha l'ma'aseh. We hope that the reader now understands the dimensions and rationales involved in this matter. He may have thus been enabled to reach - in consultation with Poskim and Rabbanim - a halachically valid approach toward the problems involved in the construction or use of an eruv in any city he lives in or visits.
The distinction between the situation in Israel and that in North America should now be obvious. In Israel, few cities, if any, are of the size necessary to fulfill the criterion of 600,000 as interpreted by Reb Moshe. Few streets are also of the size necessary to meet the criterion of reshus harabbim according to the Beis Ephraim. The possibility of controversy is therefore small. In Chutz La'aretz, however, many cities are of the size necessary to fulfill the criterion of 600,000 as interpreted by Reb Moshe. Quite a few streets are also of the size necessary to meet the criterion of reshus harabbim according to the Beis Ephraim. The possibility of controversy - in inverse proportion to the amount of opinions one may rely upon in building or using an urban eruv - is therefore enhanced dramatically.
Converted by Andrew Scriven