Relying on a Problematic ‘Eruv

The Talmud’s canonical definitions of areas regarding the violation of carrying on Shabbat is clear:

“Our Rabbis taught: There are four domains in respect to the Sabbath; private ground, public ground, karmelith, and a place of non-liability. And what is private ground? A trench ten [handbreadths] deep and four wide, and likewise a wall ten [handbreadths] high and four broad, — that is absolute private ground.9 And what is public ground? A highroad, a great public square, and open alleys at both ends— that is absolute public ground.”  [bShabbat 6a, Soncino translation, at https://halakhah.com/pdf/moed/Shabbath.pdf

It is forbidden by [Oral] Torah statute to carry a usable object four ammot in a public ground, from a public to private ground, or from a public to a private ground. In order to qualify as a public ground, the area must be 16 ammot wide, with no covering roof, enclosing wall, or partition 10 handbreadths high.  Because the public ground is that area in which carrying is forbidden by [Oral] Torah norm, the  ‘eruv, literally the mixing or conjoining of grounds or domains, is not Halakhically effective in a public ground.  But the karmalit, an area at least 4 x 4 handbreadths wide without enclosing walls or partitions  is an  area which by [Oral] Torah law is permitted to carry within  its perimeter,  but forbidden by rabbinic law because of  its visual similarity to the public ground. Furthermore, an ‘eruv enclosure must be at least 50% enclosed [bShabbat 15a and Maimonides, Shabbat 16:16] with no opening greater than  10 ammot unless a virtual doorway [tsurat ha-petah]  is constructed. The rabbinic institution of ‘eruv merely suspends rabbinic restrictions that apply in a karmalit by placing the ground within a wall, creating one large private area [bShabbat 16b and Maimonides, Supra.].

This canonical legislation is memorialized by Maimonides [Yad Compendium, Shabbat 14:1].  However, Rashi [to b’Eruvin 59a, s.v. ‘ir  shel yahid’] conjectures that we also require the presence of 600,000 passers-by during the day to reckon the area a public ground. Tosafot [to b’Eruvin 6a, s.v. keitsad] attributes this insight to Halakhot Gedolot, an important Geonic work that was composed after Rav Ashi, under whom the authority to issue hora’ah, which is apodictic Oral Torah legislation, came to closure [bBaba Metsi’a 86a]. When Halakhot Gedolot was composed, the Talmudic text was still fluid, so disputes regarding the Talmudic tradition at the time of its composition is understandable. But Rashi and Tosafot would not be authorized to contest or contradict Talmudic legislation. Their suggestion, that public grounds require 600,000 daily passers-by, is not mentioned in  or is authorized by the Talmud and is also uncited by Maimonides.  [See Israel M. Ta Shma, Law, Custom,  and Reality in Franco-Germany 1100-1350 CE (Jerusalem, Magnes, 1996),  pp. 136-141, for a description of the Tosafist position].

On one hand, it seems that adding the condition that a public ground must occasion 600,000 passers-by reforms an Oral Torah law, rendering the public ground occurrence virtually nonexistent.  The Torah requirement that the shofar be blown on the Jewish New Year is waived on Shabbat out of concern that one may inadvertently carry the shofar a distance  of “four ammot in a public ground” [bRosh ha-Shanah 29b]. And this same concern underlies the parallel rabbinic decree that overrides the Torah law of taking the lulav bouquet on the first day of Sukkot [bSukkah 42b-43a]. The later, glossing anonymous setamma de-gemara adds that the same concern also applies to the Esther Scroll, as well. In order to safeguard the sanctity of Shabbat, the mitsvot of the lulav bouquet, miqra megillah, and shofar blowing are not observed on Shabbat for fear that the desired heftsa shel mitsva, the tangible object required to execute the mitsva, might possibly be carried “four ammot in a public ground.”   The Rabbis of the Oral Torah canon did not enact decrees for improbable scenarios or remote occurrences. [See  Yabi’a ‘Omer 1 OH 14].  If the Rashi/Tosafot qualification that a public ground requires the presence of 600,000 daily passers-by is correct, then the Rabbinic decrees which forbid the observance of lulav, miqra megillah, and shofar obligations on Shabbat would defy this convention since public ground situations would rarely occur.  If Ravina I and Rav Ashi are indeed sof hora’ah, then neither Rashi nor Tosafot are authorized to reconsider Halakhic definitions.

Almost all of Orthodoxy has canonized the Vilna edition of the Talmud, which is filtered by the learner through the prism, and culture preferences, of Rashi and Tosafot, giving these two medieval Ashkenazi  voices virtual if not actual canonicity by dint of being  printed on either side of the Talmudic folio. In his Introduction to his Iggarot Moshe Responsa, R. Feinstein informs his reader that he [a] has to answer Halakhic questions not because he asked for the role of decisor, but  because he was  asked, and [b] he is not deciding based in the ideal, pure law, but according the immediate needs of the moment.  At Shulhan ‘Aruch OH 345:7, Maran Yosef Karo reports the 600,000 passers-by requirement as a secondary opinion [yesh omerim]. R. Feinstein hesitates to endorse this view, but because it was accepted to be proper by the thick culture Orthodoxy of Eastern Europe traditional society which venerates its Great Rabbis, he hesitates to subject  Rashi’s or Tosafot’s opinions to review.  In a responsum to Aaron Kirschenbaum, who became Professor of Jewish Law at Tel Aviv University Law School, R. Feinstein conceded that while it is proper to avoid smoking cigarettes because of the health danger smoking poses, one may not claim that smoking cigarettes is forbidden because many pious people are lenient, and Torah sages of past and present smoke  [Iggarot Moshe  Yoreh Deah 2:49]. While R. Feinstein describes Jewish law in positivist terms, that God initiates the legal order and demands exacting compliance to its legal norms as they are formulated, following Rashi and Tosafot, R. Feinstein functions as a Legal Realist, for whom the law is what the judge says it is.  Since the Agudas ha-Rabbanim, at his direction, outlawed the microphone on Shabbat  and Yom Tov [Iggarot Moshe YD 2:3-4], an Orthodox rabbi’s opinion to the contrary is of no consequence. In sum, the Great Rabbi may reinterpret the Oral Torah Canon, while remaining immune from review; the Great Rabbi consensus operates as a de facto Beit Din ha-Gadol.

R. Ashi’s Bet Din hq-Gadol provides the Oral Torah’s authorized  benchmark, not Rashi’s and/or Tosafot’s opinions. While these two pillars may well be equal in wisdom to their Talmudic forebearers, they do not carry the requisite status of “number” of a Beit Din ha-Gadol sitting in plenum required to override Oral Torah legislation. The Rashi/Tosafot/Geonic 600,000 redefinition thus remains problematic. Those who rely on the Rashi/Tosafot “‘eruv” have, to our view, the status of being in error, shogegin, but not wanton sinners, mezidin [See also bBetsa 30a and Tosafot ad. loc., s.v. tenan ein metappehin]. This dispute must not be permitted to divide communities and families. Those who disagree with the philological reading and legal rendering  presented here may be open to being convinced, but they may not be coerced; they should be considered to be uninformed Orthodox Jews in good standing. It may be noted that Rabbi Joseph B. Soloveitchik correctly and courageously did not permit the errant ‘eruv either in Brookline, Ma. or at Yeshiva University’s New York campus, in his lifetime, locations where he had the jurisdiction of office to issue such rulings. Those YU ordained rabbis, who are both sincere and learned who do rely on these ‘eruvin, may be rightly be challenged why they do not defer to their illustrious teacher on this matter if they claim that they follow R. Soloveitchik’s “Tradition.”

To violate the Torah restriction of Shabbat carrying, one must uproot [‘oqer] on a private ground and deposit [meniah] on a public ground [or the reverse] or do the same over four ammot on the public ground. Rolling is not carrying and I am unaware of any canonical restriction regarding rolling. If one is walking in a karmalit, where carrying is forbidden by rabbinic norm, transporting a moveable [i.e. non-muqseh] object [siddur, tallit, or keys] placed in a walker or baby carriage would be a permitted act, on grounds of the irregular mode of transport [shinnui] and the emergency dislocation [she’at ha-dahaq].

Most lay people are unaware that there is a difference of opinion regarding the propriety of many community ‘eruvin. For those who believe that Maimonides’ understanding is far more convincing than Rashi’s and Tosafot’s position, those who adopt the Rashi/Tosafot view have the status of sinning in error, i.e. shogeg.  Since the norm  that follows from plain sense of the Oral Torah syntax is not well known, and is popularly, albeit incorrectly, viewed as an extra strict standard, I recommend  that this carrying  be done with a shinnui, in an irregular fashion, be done discreetly and the pro and con positions be explained at non-threatening, non-judgmental adult education settings.  To raise the issue directly may be misunderstood as showing off, violating Maimonides, De’ot  5:8-9, but pretending there is no issue or  problem also misrepresents Torah  [Me’iri to mAvot 3:1].

No Bet Din ha-Gadol ever authorized the Halakhot Gedolot, Rashi, and Tosafist redefinition of the public access ground.  Being a great Torah personality, what Rabbi Soloveitchik calls  ”Halakhic Men” or “Hakhmei ha-Masora,”  does not automatically legitimate or validate even that rabbi’s opinion. Even a Bet Din ha-Gadol can be mistaken [Leviticus 4:13]. Torah’s words are best heard when spoken gently [Proverbs 9:17], especially in dissent.

Modern Orthodoxy is not really about making Jewish observance as easy as possible, although Jewish law does exhibit a clear preference for leniencies that permit the permitted [ko’ah de-heteira ‘adif]  [bGittin 41b], it is better described and defined  as that Orthodox Judaism that strives to recover, explain, and apply what its Canon clearly and actually commands.  “Tradition” is found in the words of the Canon, not in nostalgia  for yesteryear, present mimetic culture,  or current uninformed conventions.  When confronted with a “traditional” practice that contradicts the Canon’s commands by permitting what the Canon forbids, basic integrity requires the “modern” Orthodox affirm his/her commitment to religious truth and adopt the more logical conclusion,  even if it is the  more stringent, or inconvenient, opinion.