The prohibition of carrying on Shabbos is probably the most difficult of all the 39 melachos for religious Jews to keep. In places with no Eruv, persuading people not to carry has historically been difficult. By contrast, in normal circumstances, it is rare to hear of a Jew defining themselves as religious having difficulty refraining from cooking or building on Shabbos.[1]
Due to the above, Jewish communities everywhere make strong efforts to avoid the problem. This in turn has led to many bitter halachic arguments - in the Diaspora, over the last two hundred years a large percentage of halachic controversies have revolved around the construction and use of city Eruvin.[2]
One positive result of this is that education in this area is often of a higher standard. Many shiurim have been given, books published and blogs dedicated to the issue, all in English. However, there is still room for further clarification and insight, and I will try to provide some here.
Basic Principles and Derivations
The Torah prohibits carrying four amos (roughly 1.9m) in a reshus harabim (literally public domain), or between a reshus harabim and a reshus hayachid (private domain), on Shabbos. As the only way to circumvent these prohibitions is to ensure that no reshus harabim exists, the definition of a reshus harabim is crucial.
The gemara derives some of the definition from the prototypal reshus harabim, the desert path used by Bnei Yisrael when they travelled from Egypt. A reshus harabim is a public thoroughfare with a minimum width of 16 amos (roughly 7.6m), the width necessary for transporting the long beams of the mishkan on two wagons. The wagons were five amos each wide, with a gap of five amos in between. Two further half-amos on each side was required, for a Levi to walk, entrusted with ensuring that the beams did not fall.[3]
Any roofed area cannot be considered a reshus harabim, as there was no roof in the desert.[4] Paths with steep slopes can also not be a reshus harabim, for the same reason.[5] Perhaps most importantly, nowadays a desert is also not a reshus harabim. The desert was only the prototypal reshus harabim when Bnei Yisrael were based there.[6] For an area to be a public domain, it is not sufficient for it to be open to the public; it must also be regularly used by the public.
Population Density
There is clearly a huge difference between an entirely uninhabited area and a major road. The major question is where to draw the line – how many people need to use a road in order to make it a 'public domain'?
The gemara does not deal with this question directly, but the city layout is described reasonably clearly. Houses generally had doors that opened into shared courtyards; courtyards had openings into alleyways. The alleyways either were cul-de-sacs with a reshus harabim (or another alleyway) at one end, or were open at either end to two different reshuyos harabim (or other alleyways). The major streets of a town appear always to have been reshuyos harabim.
Nevertheless, there was a tradition dating at least from the Geonic period that regarding the laws of Shabbos, streets in cities with fewer than 600,000 inhabitants could not have the status of a reshus harabim. It is clear that the number 600,000 was taken from the (approximate) number of males over 20 that left Egypt.
The oldest source I have found for this is a responsum of the Geonim.[7] This source also states as a matter of fact that Yerushalayim, about which the gemara states explicitly would have been a reshus harabim were its gates not locked at night,[8] had a population of (at least) a million. The accuracy of this is extremely questionable, bearing in mind that the population of the entire city of Jerusalem today, old and new, does not reach this figure.[9]
This view was famously accepted by Rashi[10] and many others. Some even write that only a street with 600,000 users each day counts as a reshus harabim,[11] a view that is quoted by the Shulchan Aruch as a possibility[12] and affirmed by some as accepted halacha.[13]
By contrast, the Rambam does not mention a number of 600,000 among the criteria for a reshus harabim.[14] Ramban and others explicitly negate this view, due to the blatant omission of this requirement in the gemara.[15] Their arguments do seem rather compelling.
Alternative Leniencies
Based on the above, authorities responsible for modern day eruvin in general like to add other factors that may negate the ‘reshus harabim problem.’ Probably the best well known example of this is the view of R’ Efrayim Zalman Margolies (1760-1828. This is now more commonly known as the view of the Chazon Ish, who later would write along the same lines). He writes that an area surrounded by buildings is in Biblical terms a reshus hayachid (private domain), however many people use it as a throughfare.[16]
The source of this idea is a Tana'ic dispute regarding the solution Chazal found for those ascending to Yerushalayim for Yom Tov (the Olei Regalim). In order to allow them to draw water from wells (considered private domains) on Shabbos, four corner markers needed to be placed around them. The question arose in a case where the public thoroughfare passed inside these markers – R’ Yehuda held that this negates the use of these markers, while the Chachamim disagree and allow one to draw water from the well despite the public passing through the area.
1) The halacha follows the Chachamim.
2) According to the Chachamim, even a 16 amah wide public thoroughfare (even if it is used by 600,000 people) that has walls on three sides is a reshus hayachid and not a reshus harabim.
3) This is true even if these walls have gaps of more than 10 amos, as was the case with the 'walls' surrounding the wells (the maximum gap between the corner markers was 13
None of these arguments are straightforward (neither are they easily refutable), and accordingly all of them are disputed. As I will not be able to do justice to these issues in a post without making it far too long and I also do not want to devote five posts to the topic, I will provide one simple argument that does not require any textual analysis. If the main streets of ancient towns were reshuyos harabim, major modern roads are intuitively in the same category, including the ones that end at T-junctions and are built up on both sides.[18]
Creative Application
As mentioned above, there is a widespread recognition that it may be impractical to expect everyone to refrain from carrying items between buildings, and that creative solutions need to be found.[19] While I accept this position, I believe that any solution should also be compatible with a more modern perception of the 'public domain' (as indicated above, a more accurate, if less literal translation would be 'public thoroughfare').
The point that I have not found to be clarified adequately elsewhere is the difference between Talmudic times and now. Then, it appears that there was no great need to carry in the reshus harabim, as one could carry between buildings with relative ease. Houses did not back on to reshuyos harabim, and it was permitted to carry within the various courtyards and alleyways (subject to certain conditions). The situation in the desert at the time of yetzi'as mitzrayim was similar.
With this in mind, it is worth considering the reasoning behind the 16 amos measurement given for the width of a reshus harabim. Although we are told that halachic measurements were handed down to Moshe at Sinai,[20] does this mean that they have no rationale and cannot be relative to the norms of the time and place?
The answer is unclear. The suggestion that I would like to make is that 16 amos was based on the standard minimum width of major public roads, both at the time of yetzi'as mitzrayim and during Talmudic times. Smaller, local roads were not considered reshuyos harabim.
If this is correct (admittedly a big if), I believe that it is fair to say that nowadays, a road of just 16 amos (roughly 7.6m) would no longer be considered a reshus harabim. We would need to determine what today’s equivalent is, based on standard road usage. Just like in the times of the gemara, we would be able to carry within local communities (subject to the laws of Eruvin) but not across major roads.
On a technical level, there may not even be a need for a Sanhedrin to make this decision.[21] However, it would probably be unwise for an individual to do so without greater consensus. One problem is that nowadays, road usage varies significantly from place to place. In small villages, there are often wide roads that remain quiet and homely. In big cities, some roads of the same width are congested and would appear to fit the description of a standard reshus harabim perfectly. [22]
Divisions
Although for the time being we are constrained by the measurements given by Chazal, we can look to apply these measurements in a particular way without compromising either common sense or loyalty to the definitions implied by the gemara.
I argue that the reshus harabim of the desert and of the gemara was a road of 16 amos continuous width, without any kind of barrier in between. A 'barrier' would include trees, parked cars,[23] or any area that is not generally used as a thoroughfare. Similarly, although I believe that both pedestrian areas and roads could be reshuyos harabim, this can only be if either the pedestrian area or the road is alone 16 amos wide.[24]
Accordingly, just as in the times of the gemara, many of our streets will not be considered reshuyos harabim, while the wider, more major streets will be. It will often be possible to construct eruvin to permit carrying within neighbourhoods, while carrying across the length of a city will almost always be forbidden.
To be continued
Due to length constraints, I have limited this post to the topic of the reshus harabim and its definition. I will still need to discuss the Rabbinic enactment of Eruvin, as well as some of the many other technicalities involved in permitting carrying, even in areas which are not reshuyos harabim.
[1] Some are not learned enough regarding grey areas such as how one
may or may not make a cup of tea on Shabbos, but a Jew who cooked a meal on
Shabbos would never call himself Shabbos observant. The same is not true
regarding carrying in the street on Shabbos, even in areas where no Eruv
exists. The only other common, blatant Shabbos violation among the religious
that I can think of is the use of makeup and suchlike.
[2] It is interesting to note that while in Eretz Yisrael there are
also significant numbers who do not carry in the street, the construction of
Eruvin in all Jewish cities and villages is completely accepted.
[3] Shabbos 99a
[4] Ibid. 98a
[5] Eruvin 22b. The gradient required to negate the existence of a
reshus harabim is not specified in the gemara, but Rashi explains that it is dependent
on difficulty of walking. Ri'az gives a gradient of ten tefachim height per
four amos length, which translates to 5/12.
[6] Shabbos 6b
[7] Sha'arei Teshuva siman 209, also quoted in Sefer Ha'Itim siman 92.
The rishonim also quote this as being the view of Behag (9th
century), although it does not appear in our editions of the sefer.
[8] Eruvin 6b
[9] See also Ritva, Eruvin 59a, who states unequivocally that Jerusalem
did not have 600,000 permanent residents. However, the number is consistent
with the testimony of historians of the time. Josephus
writes that the Romans took 97,000 captives from the Jerusalem and killed 1.1
million at the time of the Great Revolt, although he does clarify that the
majority of these people were not Jerusalemites (they had made the mandatory
trip for the festival of Shavuos and were subsequently trapped by the siege).
[10] Eruvin 6a (ד"ה רשות הרבים)
[11] Smag, Lavin 66 (according to some texts)
[12] Orach Chaim 345:7
[13] Magen Avraham ibid. R' Moshe Feinstein rejects this view, but he
does concede what is perhaps an even more surprising and far-reaching leniency
– a reshus harabim can only exist when 600,000 people are found on the streets
within an area of 12 mil (roughly 5.7km or 3.5 miles) by 12 mil (Igros Moshe,
Orach Chaim 1:139; 4:87). In practical terms, this means that there will be no
reshus harabim in all but the most densely populated areas (such as Manhattan,
which is mentioned explicitly; Yerushalayim today would be borderline).
[14] Hilchos Shabbos 14:1. He surprisingly considers even a desert a
reshus harabim, without stipulating the requirement of regular public use.
[15] Chidushei HaRamban, Eruvin 59a
[16] Beis Efrayim, Orach Chaim siman 26
[17] Although a gap of this size in a wall usually invalidates a
mechitza (halachic enclosure), according to this view this is a Rabbinic
enactment.
[18] See also Igros Moshe, Orach Chaim 5:28, section 3, where R' Moshe
rejects this leniency based on a similar intuitive reasoning (among other
reasons). However, the Rambam does seem to require a reshus harabim to be open at both ends to areas such as deserts, forests or marketplaces (Hilchos Shabbos 14:1. See also 17:14, where it is explicit that even a 100 amah wide 'alley' may not be a reshus harabim).
[19] For example, the Aruch HaShulchan writes that there is no point in
going at length to prove that the stringent view is correct, as not only would
people not listen – they would think that we are crazy (Orach Chaim 345:18). He
continues by making his own novel suggestion, which I will not discuss here.
[20] Eruvin 4a
[21] If I am correct that the 16 amos measurement in the gemara would
not hold under all circumstances, this decision would not technically be a
departure from the rules of the gemara.
[22] Although in general, I believe that qualified rabbis should be free
to rule based on their own understanding of the gemara even against the
consensus (see How
does halacha work?), in this case I would be suspicious of anyone claiming
to be confident that they are right.
[23] See Igros Moshe, Orach Chaim 5:28, section 8, who rejects this
leniency. However, the reasons given there may not be relevant on some streets,
where there are no limits on how long cars can be parked.
[24] R' Menashe Klein goes much further than this in Shu"t Mishne
Halachos, 8:75-81. My position here is somewhat of a compromise between his
extreme leniencies and the view of R' Moshe Feinstein quoted above.
