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May you carry in the public domain? It changes from generation to generation

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May you carry in the public domain? It changes from generation to generation.

 

"Rabbah the son of  Bar Chanah said in the name of R' Yochanan: The city of Jerusalem, were it not that its doors were closed at night, one should be liable there for carrying in a public domain. And similarly Ulla said: these avenues bounded by the gates of the city of Mechoza, were it not that their doors were closed, one would be liable [in those avenues] for carrying in a public domain." (Eiruvin 6b)

 

In this essay we have come to clarify the laws of a public domain and the prohibition against carrying within it on the Sabbath. We will also see how our rabbis create halachot on this issue and destroy them, and how what was the public domain at one time suddenly is no longer the public domain! As we explained in our previous essay, our rabbis learn the halachic laws from the Scriptures in ways that are unacceptable to reason, and we will show something similar in this essay: how our rabbis learned the definition of the public domain and how a strange change occurred in this definition. Finally, we will expose how in our day it is to be greatly suspected that G-d's name is profaned by the many religious Jews who go out onto the streets in large cities, both in Israel and abroad, and transgress by carrying in the public domain on the Sabbath.

 

What is the public domain? Our rabbis described it as a public place 16 amah wide (about 8 meters) as brought (Shabbat 99a): "It is an established principle that a public domain must be at least 16 amah wide. We, who derive this from the Tabernacle precedent--how do we do so?"

There are 39 activities which are forbidden on the Sabbath, and one who purposely transgresses them after warning is sentenced by the beit din to death by stoning. One who accidentally transgresses must bring a sacrifice. Those 39 activities are learned from the work of the Tabernacle (Shabbat 49b): "For it was taught in a beraita: One is not liable except for a labor the likes of which was [performed] in the Tabernacle. [For example] They planted and you shall not plant...They lifted the [Tabernacle] boards from the ground [of the public domain] onto the wagon [which was a private domain] and you shall not bring [articles] in from the public domain to the private domain; they lowered the boards from the wagon to the ground, and you shall not take [articles] out from the private domain to the public domain." See what we wrote on the portion of Vayakhel, that all this learning is our rabbis' own opinions.

 

Thus we learn the measurements of the public domain from the Tabernacle, too: about the sons of Merari (of the tribe of Levi), who carried the planks of the Tabernacle, it is written: "The assignment of the charge of the sons of Merari was the planks of the Tabernacle, its bars, its pillars, its sockets and all its utensils, and all its accessories" (Numbers 3:36). It was said of the Tabernacle planks that they were 20 amah wide by an amah and a half wide (Exodus 26:16). How did the sons of Merari carry these heavy boards when the Children of Israel traveled in the desert? The Torah did not explicitly say this, but it is written that the sons of Merari received wagons: "And four of the wagons and eight of the oxen he gave to the sons of Merari, in accordance with their work" (Numbers 7:8). Thus wrote Nachmanides (Numbers 7:2-5): "And the leaders of Israel will sacrifice it…and bring their sacrifice before the Lord -- because the wagons were for the purpose of sacrifice they are called sacrifices…and the leaders thought that it is not possible the Levites should carry on their shoulders the planks of the Tabernacle and the ledges, which are very heavy, and on their own brought wagons, for this is the way of those who carry all houses of kings and their tents, to carry them on wagons."

Immediately, while we are still surrounded by the holiness of planks and wagons, we will remove some puzzlement: First, do not ask, you who seeks knowledge, how the Children of Israel, in the middle of the desert, got wood to make the Tabernacle planks. Rashi wrote (Exodus 25:5) "'And acacia wood' From where did they obtain this [in the wilderness]? R' Tanhuma explained: Our forefather Jacob foresaw by means of the holy spirit that Israel was destined to build a tabernacle in the wilderness; so he brought cedars to Egypt and planted them and commanded his children to take them with them when they will go out of Egypt." There you have it -- by the Holy spirit. Second, do not wonder how wagons carried this heavy load in the sandy Sinai desert without sinking. Rashi has written (Deuteronomy 8:4) "'Your rainment waxed not old' The clouds of glory rubbed their clothes and polished them like polished utensils; and also their little ones, as they grew up, their clothes grew with them, just like the covering [shell, according to Rashi on Hagiga 11a] of the snail which grows together with it." There you have it -- by the clouds of glory. Between the Holy spirit and the clouds of glory the wagon's path was smoothed…for there is no end to stories and fantasies.

 

The Torah did not explain to us how the sons of Merari traveled with the wagons. Did the four wagons travel in a single line or four across? Maybe it was two by two, two across for two rows? The Torah also did not tell us the width of the wagons.

But our sages who sit behind the scenes (even 1500 years after the fact) knew exactly what and how the sons of Merari traveled, and wrote (Shabbat 99a): "Abaye said: The space between one wagon and the wagon alongside it equaled the length of a wagon. And how much was the length of a wagon? Five amah....Rava said: The two sides of the wagon together equaled the width of the wagon itself. And how much was the width of a wagon? Two and a half amah. Why do I need [the wagon to be two and a half amah wide? A width of] one and a half amah would have sufficed! [The wagons were made two and a half amah wide] so that the boards would not totter [to the side]. But [then how do we account for] that which we hold [as an] established [principle that a] public thoroughfare [must be at least] sixteen amah wide? We, who derive this from the Tabernacle [precedent -- specifically, from the place occupied by the laden wagons as they traveled through the wilderness -- how do we do so? Why, the place occupied by the wagons] of the Tabernacle was [only] fifteen amah wide! There was an extra [amah of width on the road traveled by the Tabernacle wagons] where a Levite could stand so that if the boards should [begin to] slide [off one another], he could take hold of them [to set them right -- there is an extra amah in which a Levite stands; if a board falls he straightens it]."

 

About how the wagons traveled Rashi wrote, s.v. patur (Shabbat 96a): "The sons of Merari had four wagons which carried the Tabernacle planks. They would travel two by two as said in the Gemara, and when they pulled the Tabernacle down to load it on the wagons -- they set the wagons up as they would travel, two by two near the Tabernacle, in two rows, the way they would travel through the public domain." Now come, wise student, and see something strange: The Tosafot (Shabbat 99a) s.v. lama li wondered, "According to Rashi the two wagons would unload from each other and there was a separation of five amah between them and each was loaded alone due to the weight of the planks. It is puzzling -- how could planks which were so heavy, whose length was ten amah and width was an amah and a half, stand in two and a half amah of width?...Also, how could two wagons travel side by side in 15 amah without the planks hitting each other?…And how do we know that the wagons were travelling two in a row, so that we learn a public domain is 16 amah? Perhaps the wagons traveled single file and the public domain should be narrow, or perhaps they traveled four in a row and the public domain should be very wide?" From the Tosafot's questions you see quite clearly that they never received from their rabbis how the wagons traveled, and therefore also never received clear and absolute information about the public domain. Further, their puzzlement about "How could planks which were so heavy…stand in two and a half amah of width?" is itself puzzling. Did the Tosafot not suppose the whole journey through the desert was miraculous? If not, they should have wondered how such a heavy load could travel through the desert sands without sinking, as we have already asked. Now see the Tosafot's answer: "And it seemed to Rabbeynu Tam that the two wagons were connected by a wooden bar 15 amah long with four wheels like two wagons would have and two side boards as there would be on two wagons. Between the wagons was a space the length of a wagon, meaning that between the side board of one wagon and the next was 5 amah…" A perfect fit! Rabbeynu Tam went and invented Siamese wagons connected at their navels! It is clear that the Tosafot's question on the Rashi boomerangs back at them: How do they know that the two wagons were connected (and especially in this strange fashion?) Again, there is no end to the inventions and interpretation, but a correct answer -- that there isn't.

 

Having clarified our rabbis' opinion of the public domain (a place 16 amah wide),  we will discuss the question of how in our times there are G-d fearing Jews who carry objects through the city streets, which are the public domain, and none of the rabbis or Halachic teachers open their mouths and squawk.

 

In the gemara we brought at the start of the essay it is written, "The city of Jerusalem, were it not that its doors were closed at night, one should be liable there for carrying in a public domain." That is, it is explicitly stated that the public domain does not become permissible for carrying through the form of a doorway (the eiruv made nowadays around cities and neighborhoods, in which poles are set at a distance of several meters from each other and a wire is stretched from the top of one pole to the next, forming a doorway shape) unless there is an actual door in the opening! Thus ruled the Shulchan Aruch, Orach Chayim, 364, section 2: "The public domain itself cannot be made permissible except through doors which are locked at night. There are those who say that they do not have to be locked, but they have to be capable of locking."

If so, if actual doors are needed, how in our days do they carry and transgress the most serious prohibition, public desecration of the Sabbath, which is punishable by stoning? We will bring here two explanations which will illustrate for you who seeks knowledge how generations come and go and the public domain takes on different forms and changes.

 

The Mishnah Berura, paragraph 364, subparagraph 8: "In our towns, though the custom is to make the shape of a doorway, the streets are much wider and extend past the doorways, and sometimes highways even run through a city. Technically, this makes them a definite public domain, as said above in paragraph 345. So one is forced to admit that we rely upon the 'some say' in paragraph 345, that the public domain does not exist unless 600,000 people pass it, and this is not common." This is also Rashi's opinion (Eiruvin 6a): "The public domain -- means a width of 16 amah, and a city in which there are 600,000 and no wall."

The Gemara adds (Shabbat 6a): "And which place is a public domain? A highway [an intercity thoroughfare -- Rashi] and a large public plaza [the width of the city, where they gather for commerce -- Rashi -- a place of open markets] and streets that are open at both ends. This is an absolute public domain."

 

See something amazing. According to the Gemara in Eiruvin, the cities of Jerusalem and Mechoza were definite public domains. The only reason for permitting carrying on the Sabbath within them is that they had a wall with true gates which could be closed. But if these two cities were public domains to start with then, according to Rashi, in Talmudic times the city of Mechoza in Babylon and the city of Jerusalem in Judea each had 600,000 people walking its streets!

 

We find that according to Rashi, in those days there was a greater population density in those cities than there is now! Anyone who looks at research texts on population density will immediately see that the opposite is true. See Encyclopedia Miqrait, entry uchlusiya, pg. 145: "From the start of the Hellenistic period (early the 3rd century BCE) there are reports of the number of Jerusalem residents, estimated at 120,000 (Josephus, Against Apion I, 197, quoting Hecataeus of Abdera). But this information is undoubtedly exorbitant, given Jerusalem's area (5 square kilometers)." There are now over half a million Jerusalemites, and there have never before been so many.

 

Thus our rabbis the Rishonim made up a new law. This law is mentioned nowhere at all in the Gemara, as the Ran wrote (in his commentary on the Rif), Tractate Shabbat, chapter six, s.v. aval: "On what does our generation rely when women go out into the public domain with rings without a seal? The rabbi, author of the Terumah, finds excuse for them because now we have no absolute public domain, because you need…600,000 people passing there each day…This supposition is not evident and clear, for we have not found that our rabbis mentioned that a public domain needs 600,000 people passing through it." Exactly so! There are no words of Chazal which predicate a public domain upon 600,000 people. Look: According to what we know of the population of large cities in the world (which only rises as history goes on) it is impossible for the Gemara, in its period, to have required 600,000 people in a city -- if it had, there would have been no public domain in the world, and certainly not in Jerusalem or Mechoza, of whom the Gemara explicitly states that they are public domains, as the Ritva wrote on Eiruvin 59a, s.v. mitanya ir shel yachid: "…and know that even Jerusalem had not 600,000 on a regular basis, and even so it was a public domain."

 

But what? Our rabbis the Rishonim saw the G-d fearing masses could not keep the prohibition against carrying on the Sabbath, for it is a great burden to the public. If they left the first (16 amah) definition intact, women could not wear rings on the Sabbath and it would be impossible to go out with children's strollers, and when there were bar mitzvah parties or ufrufs and one needed to bring food to the synagogue, they would not be able to do so and their parties would not take place, etc. Therefore our rabbis the Rishonim made up a new definition for the public domain, that 600,000 people must pass it each day (see the Biur Halacha, paragraph 365, s.v. she'ein sishim ribo), and thus they almost completely ruled out of validity all laws of a public domain.

 

Here is another example of the attempt to rule out of validity the laws of a public domain -- again, through a change in definition. Rabbi Abraham Bornstein (1839-1910), head of the beit din of Sochatshov, wrote in his responsa Avnei Nezer (Orach Chayim, paragraph 273): "And in my opinion, in these times and in these countries, even those who say that there is a public domain even without 600,000 will admit that in these countries there is no public domain. This is according to what is brought in the Beit Yosef, Orach Chayim, paragraph 391, that there are countries in which the king is naught but the judge and tax-collector, while all other matters are administered by the city advisors and its leaders; but there are also places where everything is administered by the king. And in these times there are countries which have a constitution, as Prussia and Austria. But in these countries the emperor, may he be exalted, administers all matters and is the sole sovereign, so that the country belongs to the king and is not called a public domain…And even more so in countries that a king has conquered in war, such as Poland, which the emperor, may he be exalted, captured in a war of conquest…So the marketplaces and streets belong to the emperor, may he be exalted, and are not public domains at all…and this is enough to excuse us for carrying with only the form of a doorway, and no one opens his mouth to protest."

It is a great pity that the Avnei Nezer did not check and research the forms of government in Mechoza, Nahardea, Sura, and Pumbedita at the time of the Talmud, for he would have immediately discovered that they were ruled by the Sasanid Persian king in a monarchy more absolute than that of the Russian czar, may he be exalted -- so, were his argument to be true, the marketplaces and streets would be all considered to belong to the Persian king. But what force has the Halachic truth when faced with the reality of religious Jews who want to go out and stroll with their children in strollers in the public dominion on a bright summer Sabbath? They hang onto the emperor's reign and carry…

 

If we return to our times, we will see that our contemporary rabbis need to quickly find a new definition for the public domain! This is because the two reasons we brought above do not pertain today in the large cities of Israel and the world. First, Israel and most other countries are under democratic rule, so the argument of the Avnei Nezer does not pertain.

Second, 600,000 people pass in many places. Certainly they do in a city like Tel Aviv, Jerusalem, or in many places abroad, like New York, London, Paris, or any of the big cities which have several million residents each. If they do not quickly find a new way, anyone who goes out in those cities with even a handkerchief in his pocket (and we need not say with an infant in a carriage) really does profane the Sabbath in public! These are known matters, and even so many religious Jews carry without impunity, for the public fashions Halacha more than Halacha fashions the public.

 

In summary we will say, and you the thinking student will see, how the serious Torah prohibitions change completely from time to time, an what once made one liable to death by stoning is now unreservedly permitted. This is what we have said many times, that all Halacha is an utterly human creation; it is not from the Heavens nor has any metaphysic essence. Like all human creations which mainly deal with legal/social matters, Halacha was created by the sages and given to sages to be determined based on their judgement, all in accordance with the needs of the time, place, and the public. The words of Halacha are in their hands like clay in the hands of the sculptor, and they are entitled to keep it or change it, as our rabbis said: "Jepthe in his generation is as Samuel in his generation."

 

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