Introduction
In the famous list of the thirty-nine categories of actions forbidden on Shabbat, the last one is carrying from one domain to another. The first step in understanding this category is defining the domains. The rabbis mentioned three domains: Public Domain – רשות הרבים, Private Domain – רשות היחיד, and Karmelit – כרמלית, which has an ambiguous status and hovers between the two other domains. One is not allowed to move an object from the private to the public domain and vice versa, or to carry object seven feet in the public domain. Moving an object from one of these domains into the Karmelit and vice versa, or carrying it seven feet in the Karmelit, are understood as a rabbinic decree.
As I have shown elsewhere, the list of categories was probably composed by Rabbi Yehudah the Prince and added to the seventh chapter of tractate Shabbat after the redaction of the Mishnah. That list places carrying in the last place, even though:
- Tractate Shabbat opens with the laws of carrying.
- The laws of carrying are discussed in the following chapters of tractate Shabbat: 1,5,6,7,8,9,10,11,16,19,21,24.
- More than half the text of the Mishnaic material on Shabbat (in tractates Shabbat and Eruvin) is dedicated to that category.
- In addition to the lengthy the discussion in tractate Shabbat, another tractate, Eruvin, is dedicated to the laws of carrying.
It seems that the great attention given to the laws of carrying in Mishnaic literature stems from the knowledge that it is not a biblical prohibition, but rather one instituted by the rabbis. This is the opinion of Rabbi Yehudah HaLevi in his philosophical work, The Book of Refutation and Proof in Support of the Abased Religion, aka The Kuzari (3:50-53). In these passages, he creates a debate between the King of Khazar and the Jewish Sage regarding the concept of Eruv, the legal fiction which allows people to carry in the public domain and from one domain to another:
נ. אמר הכוזרי: …נשאר לי לשאול אותך בעירוב והוא קלות במצות השבת, איך יתיר מה שאסרו הבורא בתחבולה ההיא הנקלה והפחותה?
The King said: …I still need to ask you about the Eruv, which shows that Shabbat is taken lightly. How can one allow what the Creator has prohibited with this lowly and disrespectful trick?
The question of the king is one which bothers many Jews today, observant and non-observant alike. It has led the latter to ridicule Rabbinic law, while among observant Jews there is a growing trend of being “strict” and refusing to rely on the Eruv. The Sage has an answer for the King of Khazar:
נא. אמר החבר: חס ושלום שיסכימו המון חסידים וחכמים על מה שיתיר קשר מקשרי התורה, אך הם מזרזים ואומרים: עשו סייג לתורה. ומן הסייגות שסייגו, שאסרו ההוצאה וההכנסה מרשות היחיד לרשות הרבים ובהפך, מה שלא אסרה זה התורה. ואחר כן גלגלו בסייג ההוא גלגול להרוחה, כדי שלא תחשב השתדלותם כתורה, ושיהיה ריוח לבני אדם בהשתמשם, ולא יגיעו אל הריוח ההוא אלא ברשות, והרשות הוא עשות העירוב, כדי שתהיה הכרה בין המותר לגמרי ובין הסייג ובין האסור.
The Sage said: God forbid, it is inconceivable that an assembly of scholars and pious men will decide to undo a biblical prohibition. To the contrary, they keep reminding people that one must make a fence around the Torah. One of the fences that they have created is the prohibition against moving an object from the public to the private domain and vice versa, something which was not forbidden by the Torah. They then redefined that fence and opened a door to make room for people, to distinguish between their legislation and biblical law, and to make people comfortable when they use the domains. They wanted this comfort to be permissible, and the permission is the Eruv, which distinguishes between what is completely permissible, the fence, and the forbidden.
The words of Rabbi Yehudah HaLevi leave no room for doubt that he considered the thirty-ninth category, and the whole system of domains with the prohibitions related to them, a rabbinical decree. He also explains that the legal fiction of the Eruv was built into the system by the same people who created the prohibition to insure a healthy functioning of social and family life on Shabbat. The Eruv therefore is not a trick but rather a backdoor left by the programmers to override the system when the need arises. The King of Khazar keeps arguing:
נב. אמר הכוזרי: כבר הספיק לי זה. אבל לא חזקה אצלי מלאכת העירוב עד שתהיה מחברת בין שתי רשויות.
The king said: I accept that. But the Eruv is not strong enough in my opinion to connect the two domains.
In response, the sage warns the king that his statement demonstrates lack of faith in the system of Written and Oral Law, and practically dodges the specific question:
נג. אמר החבר: אם כן לא חזקה אצלך המצוה כלה
The Sage said: if that is so, you do not have strong faith in the whole system…
With this sentence, Rabbi Yehudah HaLevi launches a lengthy discussion which continues to the seventy-fourth chapter of the book, but what matters to us now is his statement that the concept of domains and the prohibition of carrying from one to another is not biblical. It is intriguing because though the Kuzari is based on historical events, the content was written by Rabbi Yehudah HaLevi, which means that he is the one who authored the discussion, with its doubts and uncertainties.
Since the list of 39 categories in Shabbat 7:2 is viewed by most as a list of biblically prohibited actions, R. HaLevi’s statement poses a serious problem. One cannot dismiss his words as a mistake, since the book was carefully crafted to serve as an ideological and theological textbook for Jews who were doubting and questioning their religion. Though the Kuzari is framed in the historical event of the conversion to Judaism by the King of Khazar and his subjects, R. Yehudah HaLevi is addressing mainly his fellow Jews, who needed a convincing explanation for their beliefs and way of life, which were constantly challenged in a hostile environment. The book is venerated in Jewish culture, it is cited hundreds of times in Halakhic literature, both on theological and halakhic issues, and its words therefore must be taken with the same level of respect given to purely Halakhic works.
The commentators of the Kuzari found different ways to solve the problem, all of which include altering or expanding his words. R. Yehudah Moscato (Italy, 1530-1593) explains that there are cities which were considered private property in their early days but then became public property as they grew and population. Such cities are still eligible for an Eruv. In the reversed situation, where a city shrank in size, an Eruv can be built, but not for the whole city, so people will not come to think that the public property could be overridden with an Eruv. He then presents a third case, that of a city that was defined at its establishment as public property, still maintains the same label, and yet is qualified for an Eruv. Such a city is Jerusalem, which is considered Karmelit, a buffer zone between the private and public property which qualifies for an Eruv. Jerusalem is defined as Karmelit because it is a walled city and its gates are locked at night, which turns it into a contained space. R. Moscato concludes:
אמור מעתה שעל רשות הרבים כזה נאמרו דברי החבר, ונסו צללי הספקות מפניך
You can say now that the Sage [who is arguing with the King of Khazar] was referring to such a public property, and the shadows of doubts will thus disappear…
One needs to stretch his imagination to think that this explanation drives a way the shadow of doubt. R. Moscato presents a very complicated and rare scenario and argues that it is contained in the few words of the Sage.
R. Yisrael HaLevi of Zamość (Poland, 1700-1770), in his Otzar Nehmad, draws a distinction between the halakhic and the real-life labels of public and private domains. He says that besides the halakhic definitions, one’s house is private domain, while the courtyard into which several houses are open is public domain. By biblical law, it would be allowed to carry form the houses to the courtyard and vice versa, but the Sages forbade it and required a special Eruv, called Eruv Hatzerot, to make it permissible. He adds that the courtyard, though public by practical standards, is private by Torah law, and so carrying from the house to the courtyard is carrying from one private domain to another which is not forbidden.
Perhaps it was this commentary that influenced the author of an article on the Kuzari in an online, virtual Beth Midrash, which I read a while ago but unable to locate again. That article misquoted the Kuzari as saying that the Sages forbade carrying from one private domain to another. I would like to give the author the benefit of the doubt and believe that he did not deliberately doctor the words of the Kuzari, but rather wrote the commentary of Otzar Nehmad into it, and maybe later removed it.
Other online articles gloss over the problem by refraining from quoting the text of the Kuzari, and rather paraphrasing his words for the readers. On Chabad’s website I found the following:
Rabbi Judah ha-Levi explains that the relatively simple route to privatizing a karmelit is deliberate, in order that a distinction be made between the rabbinic enactment and the biblical prohibition of carrying in a proper public domain.
In the website of the Austin Eruv, this rendition is presented:
The Kuzari… explains that when we study the Talmud more carefully, we discover that there are certain domains that are technically not public domains, but which the rabbis declared to be public because of their striking similarity to the public domains described in the Bible. This being the case, the eruv is only meant to allow one to carry from one’s house into an area that is rabbinically labeled a public domain.
All these commentaries and renditions have merit on their own and can rely on discussions in the Talmud and later halakhic works, but none of them fits the text of the Kuzari, and we return to the original question, is it possible that R. Yehudah HaLevi believed that the prohibition of carrying on Shabbat is not biblical? The answer is that already in the Mishnah and the Talmud there are indications that the status of carrying on Shabbat is lesser than that of other categories.
The Thirty-Nine Categories
As I have written elsewhere, the list of thirty-nine categories was authored by Rabbi Yehudah the Prince and inserted by him into tractate Shabbat after the tractate was already formatted in the oral tradition. That was the culmination of an effort by Mishnaic sages to codify the laws of Shabbat as a response to those who thought that all actions are forbidden. The list does not correspond to the inner order of tractate Shabbat and contains redundancies, because it used three pre-existing lists as a basis. Those lists were not related to Shabbat but rather described commercial actions necessary for making bread (categories 1-11), making garments (12-24), and making leather goods (25-33), to those thirty-three, six actions were added, the last of which was carrying.
In tractate Shabbat (96:2), the Talmud discusses the biblical roots of carrying:
הוצאה גופה היכא כתיבא? – אמר רבי יוחנן: דאמר קרא ויצו משה ויעבירו קול במחנה. משה היכן הוה יתיב? במחנה לויה, ומחנה לויה רשות הרבים הואי, וקאמר להו לישראל: לא תפיקו ותיתו מרשות היחיד דידכו לרשות הרבים.
[this only covers throwing, but] where is carrying itself written in the Torah?… It is written: Moshe commanded, and they announced throughout the camp, that neither man nor woman should perform any more work as an offering to the Tabernacle (Ex. 36:6). Where was Moshe? In the camp of the Levites, which was public domain. He was telling the Israelites: do not bring objects from your private domain to the public domain.
It is obvious that “work” in this verse does not refer to the act of carrying the object but rather to turning raw materials into finished products, but the Talmud considers it a proof that one cannot carry an object from the private domain (one’s tent) to the public domain (the Tabernacle’s courtyard). The Talmud now looks for the source for forbidding carrying in the opposite direction, from the public to the private domain. The answer is:
אשכחן הוצאה, הכנסה מנלן? סברא היא, מכדי מרשות לרשות הוא, מה לי אפוקי ומה לי עיולי! מיהו, הוצאה אב, הכנסה תולדה.
It’s a logical deduction. Since the forbidden act is moving an object from one domain to another, what does it matter if he takes it out or brings it in (in=private domain; out=public domain). However, taking out is a parent category, while bringing in is a descendant category.
In the Talmud, basing a prohibition on a logical assumption is not common and even frowned upon, so the discussion above suggests that there was no basis for the prohibition. Furthermore, we can argue that objects naturally belong in the private property, so while taking them out is a deviation from the natural order, bringing them in is the natural thing to do and not work. Another problem, alluded to by the Talmud, is that moving an object from the private to the public domain is a parent category, while moving it in the other direction is descendant category. The Talmud continues with an attempt to prove that throwing an object in the public domain is also forbidden, by visualizing the weavers of the Tabernacle’s curtains throwing their tools to each other. The argument is that actions performed as part of the construction process are forbidden on Shabbat. This attempt is challenged by eight consecutive questions, which eventually force the Talmud to admit that carrying or throwing objects four feet in the public domain has no textual proof and is rather an oral tradition.
The Origins of Shabbat Domains
Halakha recognizes three domains relevant to carrying on Shabbat: public domain, private domain, and karmelit. The definitions of the three are not always clear or agreed upon. The starting point for the definition process is the public domain. Here is a summary of the definitions as they are understood in contemporary Halakha:
- Public domain, according to some poskim, is a road 16 feet (8m) wide, and which is traveled daily by 600,000 people. According to others, one of these conditions is enough to make the road public domain.
- Private domain is a house, an apartment building, and a fenced courtyard surrounding them.
- Karmelit is the name given to the gray zones. Open natural areas with no paved roads, and minor roads connecting private domains with the public domain.
Let us now look at the definitions of the domains in Mishnaic literature. We would have expected to find these definitions either in tractate Shabbat or tractate Eruvin. The former dedicates half its text to carrying, though it deals with all Shabbat laws, while the latter is dedicated to the laws of the domains and carrying in and between them. Surprisingly, the definitions of the domains cannot be found in these tractates. Consider that fact: in the two tractates the term “public domain” appears 30 times, “private domain” appears 16 times, and “karmelit” once, but there is no clear definition of any of the three. The definitions of the public and private domains are found in the Mishnah in a tractate unrelated to Shabbat, in the sixth chapter of Bava Batra, which deals with commercial laws, and specifically with what is automatically included in a sale when not explicitly mentioned. To understand how disassociated is this Mishnah with Shabbat laws, here is a summary of the laws in the chapter, with a more detailed translation of Mishna 6:
[1] Selling seeds which eventually did not sprout; [2] How much of the following is acceptable in a purchase: dirt in wheat; rotten figs; spoiled wine; cracked barrels; [3] Selling wine which turned vinegar; definitions of fragrant, aged, and ancient wine; [4] When selling lots for construction purposes, what is the definition of house, room, cow pen; [5] Right of passage to one’s water well which is not on his own property; [6] One whose field is encircled with his friend’s fields can pass through only when it is customary for people to travel, and he cannot bring buyers there, unless his neighbor has sold him a dedicated path to his field. [8] When selling a lot or a cave for burial, what are the definitions of the cave.
Mishna 7 is where our subject is discussed:
מי שהיתה דרך הרבים עוברת בתוך שדהו נטלה ונתן להם מן הצד מה שנתן נתן ושלו לא הגיעו. דרך היחיד ארבע אמות, דרך הרבים שש עשרה אמה, דרך המלך אין לה שיעור
If the Public Way passes through one’s field, and he appropriated it and provided a substitute road on the side of the field, what he provided belongs to the public, as well as the original way. Private way is four feet (2m) wide, public way is sixteen feet (8m) wide, the King’s highway has no limits…
Note that even here, the terms are not private and public domains, but rather “ways.” The Mishnah defines how much space can be occupied by officially named roads which cut through one’s property. The discussion suggests that there was an official system for defining public and private roads. We will return to this idea soon, but first, let us look at the one Mishnaic source which does define the different domains regarding Shabbat. This source is not in the Mishnah but rather the Tossefta. The status of the Tossefta vis-à-vis the Mishnah is contested. Traditionally it is seen as a compilation of texts excluded by Rabbi Yehudah the Prince from the Mishnah, because of lengthy, redundant, or inaccurate language. Scholarship tends to see the Tossefta as a competing compilation created by contemporaries of R. Yehudah, such as R. Oshaya, R. Hiyya, and Bar Kappara. Because the Tossefta did not enjoy the same venerated status of the Mishnah, which was considered canonized and sacred, and had the seal of approval of the Beth Din and the Prince, it was more susceptible to edits and changes throughout history. Here are the first two units (called halakhot) of the first chapter of the Tossefta Shabbat:
הלכה א: ארבע רשויות, רשות היחיד ורשות הרבים. אי זהו רשות היחיד? חריץ שעמוק עשרה ורחב ארבעה, וכן גדר שגבוה עשרה ורחב ארבעה, זהו רשות היחיד גמורה.
[1] Four domains: private domain and public domain. What is considered private domain? A ditch 10 hand-widths (40’’) deep and four (16’’) wide, and a fence 10 hand-widths high and four wide, this is an absolute private domain.
הלכה ב: אי זהו רשות הרבים? סרטיה ופלטיה גדולה, ומבואות המפולשין, זו היא רשות הרבים גמורה.
[2] What is considered public domain? A strata (highway), a large plaza, and roads open [into them], this is an absolute public property.
The commentators are perplexed by the opening statement “four domains”, especially since the Tossefta seems to later explain only three of them. Another intriguing issue is that the Tossefta does not define the width of or volume of traffic in the public property.
Let us now continue to halakhot 3-5:
הלכה ג: אין מוציאין מרשות היחיד זו לרשות הרבים זו, ואין מכניסין מרשות הרבים זו לרשות היחיד זו. ואם הוציא והכניס, בשוגג חייב חטאת, במזיד ענוש כרת ונסקל. אחד המוציא ואחד המכניס, אחד המושיט ואחד הזורק, חייב.
[3] One is not allowed to take out from such private domain to such public domain, or to bring in from such public domain to such private domain. If one took out or brought in he is liable… whether he took out, brought in, handed over, or threw.
הלכה ד: אבל הים והבקעה והכרמלית והאסטונית והאסקופה, אינן לא רשות היחיד ולא רשות הרבים. אין נושאין ונותנין לתוכן, ואם נשא ונתן פטור. אין מוציאין לא מתוכן לרשות הרבים ולא מרשות הרבים לתוכן, ואין מכניסין לא מתוכן לרשות היחיד ולא מרשות היחיד לתוכן, ואם הוציא והכניס פטור.
[4] However, the sea, the fields, the Karmelit, low fences, and the threshold, are neither private nor public domains. One cannot carry and put [lit. negotiate] into them, but if he did, he is not liable. One cannot take out from them into the public domain and vice versa and one cannot bring into the private domain from them and vice versa, but if he did he is not liable.
הלכה ה: חצר של רבים ומבואות שאין מפולשין, עיריבו מותרין, לא עיריבו אסורין.
[5] [The residents] of communal courtyards and roads [which are] not open [to the public domain], if they made eruv they are allowed [to carry] and if not, they are forbidden.
The Tossefta opens with a statement that there are four domains, but seems to mention only three: Private Domain, Public Domain, and the buffer zone known as Karmelit. The Vilna Gaon corrected the text of the Tossefta (his addition is in brackets):
ארבע רשויות, רשות היחיד ורשות הרבים, [כרמלית ומקום פטור]
There are four domains… [Karmelit, and an exempted place].
The commentators explain that this correction is based on the discussion in the Babylonian Talmud, but there is no textual proof for it. The third category, karmelit, is mentioned here, in Halakha 4, but the fourth one, an exempted place, is not. Furthermore, the term “exempted” in rabbinic literature usually means that something is forbidden but not punishable, but since that exempted status is already applied to Karmelit, how does it differ from the fourth category? The answer is that unlike Karmelit, one can move objects into and from the “exempted domain”, but that explanation contradicts the normal use of the term “exemption” in rabbinic literature.
This textual correction is not agreed upon by all, however. R. Shmuel Avigdor Rabinowicz (Lithuania 1806-1866), whose commentary on the Tossefta became so prominent that he was nicknamed Tosfa’ah, writes that the correction is valid only according to the Babylonian Talmud. The Yerushalmi sees the places mentioned in Halakha 5 as the fourth category. Besides the apparent confusion as to the number of domains and their exact status, the most significant detail missing from the Tossefta is the definition, by measurements, of the public domain. Even the seemingly detailed description of the private domain is not detailed enough, because it speaks of confined spaces within the public domain, but not of private roads.
With that in mind, let us look at a paragraph from tractate Eruvin (22:2) in the Talmud, which might shed light on the nature of the private and public domains:
יהושע אוהב ישראל היה, עמד ותיקן להם דרכים וסרטיא. כל היכא דניחא תשמישתא – מסרה לרבים, כל היכא דלא ניחא תשמישתא – מסרה ליחיד
Joshua cared about the Jewish people, so he established for them roads and strata. Where the use of the road was easy, he handed [control] to the public, and where it was not easy, he handed [control] to individuals.
This paragraph comes to solve a halakhic question, but it is Midrashic and anachronistic in nature. There is no biblical evidence that Joshua created a central road system or that he decided who will own and control the roads. What the paragraph teaches us, however, is that the definition of domains does not necessarily depend on measurements or volume of traffic, but rather on ownership, usage of, and perhaps also responsibility for the roads.
In that context, we recall the famous story about the sages discussing the architectural achievements of the Roman Empire (B. Shabbat 33:2):
פתח רבי יהודה ואמר: כמה נאים מעשיהן של אומה זו: תקנו שווקים, תקנו גשרים, תקנו מרחצאות.
R. Yehudah spoke first, he said: how wonderful are the handiworks of this nation, they built marketplaces, they built bridges, they built public bathhouses.
It is very possible that when the Talmud describes the actions of Joshua, it projects the positive actions of the Romans into the past and portrays Joshua as a builder and an administrator. A more intriguing possibility is that the Rabbinic definitions of domains were somehow related to the infrastructure of roads in the Roman Empire.
Indeed, in the most ancient Roman codex, known as the Law of the Twelve Tables and dating to the fifth century BCE, there are definitions of three types of roads. The codex speaks of ownership and responsibility for the roads. Those three categories are: Viae Publicae – Public Roads; Viae Privatae – Private Roads; Viae Vicinalae – Subsidiary or secondary roads.
Roman Roads
As we have previously seen, the Mishnah never discusses the width of private or public roads in the context of the laws of Shabbat, and these are mentioned only when dealing with ownership and right of way in tractate Bava Batra. This suggests that the status of roads was primarily a judicial issue and only later the language was adopted for the laws of Shabbat.
The three types of Roman roads mentioned in the Law of the Twelve Tables are public, private, and subsidiary roads. The terminology used by Mishnaic and Talmudic sages reflects the Roman architectural system. For example, the Talmud discusses the status of צדי רשות הרבים – the sides of the public property. This corresponds to the description of construction of public roads:
Most roads were cambered and had side gutters or ditches to assist drainage. Some ditches were originally quarry ditches dug to obtain material for the road construction, while others acted as boundaries.
The rabbis used Greek and Roman terms to describe roads and city structures, for example, strata, platea (to which we will return soon), stoa, basilica, and circus. Most important to the issue of carrying on Shabbat and the definition of public property, however, is the entry in the Law of Twelve Tables regarding the width of roads. The road was supposed to be wide enough to allow two vehicles to pass, or 4.8m which is a little less than 16 feet. The width of roads varied greatly, from 12.2m to 2.4m, or forty to eight feet. The words strata and platea, commonly used in rabbinic literature to describe public property, are also Roman terms. The word strata replaced the word via in the third century, and platea or platia (πλατεία) is the Greek word for town square. The term platea was adopted by the Romans and later acquired the meaning of “street.”
As you recall, later commentators defined public property as having one or two of these conditions: a width of 16 feet, and foot traffic of 600,000 people daily. The width seems to correspond to the official width of Roman roads, but foot in the ancient world was bigger than the current measure we use. While the modern foot measures 30.5cm, the ancient foot was anywhere between 43-57cm. The rabbis do speak of the “foot of five handbreadth” as opposed to the one of six, but the definition of the shorter foot is highly debated and if it was used, it was probably only in the temple. Additionally, even if we use the shortest known foot as a basis for calculating the five-handbreadth foot, the result will be 36cm.
This brings us to the question whether the definitions mentioned in Halakhic literature are realistic. Take for example this paragraph from R. Eliezer bar Nathan (1090-1170) also known as Raavan, a contemporary and colleague of Rabbenu Tam and one of the leading scholars in Germany at the time:
ראב”ן שבת סימן שמט: ויש לומר שהראשונים שלא מיחו בנשים שלנו, משום דסברו דעיירות שלנו כיון שאין רשות הרבים שבהן דומה לדגלי מדבר, שאינו רחב שש עשרה אמה, לאו רשות הרבים גמור הוא והוי ככרמלית גמור ויוצאה בו. וגם אין בהן דריסת ששים ריבוא כדגלי מדבר, ועוד שיש להן שערים לעיירות וראויים לנעול דלת . וכיון דראויין לנעול הרי הן כנעולין ואין חייבין עליהן משום רשות הרבים, כדאמרינן [עירובין ו’ ב] ירושלים אילמלא דלתותיה ננעלות בלילה, חייבין עליה משום רשות הרבים. לפי שהיתה רשות הרבים שלה ט”ז אמה רוחב, והיה בה דריסת הרגל של ששים ריבוא ומהני לה נעילת שער דלא הויא רשות הרבים.
Raavan’s comment follows his discussion of the practice of women in his time to go out to the public domain with jewelry, something which is forbidden by rabbinic law for fear that the woman will remove the jewelry to show it to a friend and will then carry it in the public property. He explains that the sages of previous generations did not rebuke the women because they ruled that their cities were not considered public domain. The reason for that ruling was that the cities did not have sixteen-feet wide streets, nor did they have foot traffic of 600,000 people daily. Additionally, German cities had gates which at times were locked, and that turned the whole city into a Karmelit, in which carrying is not punishable.
Raavan continues to say that locked gates are a solution even for a city which is considered public domain such as Jerusalem at the time of the Mishnah. He quotes R. Yohanan who says (Eruvin 6:2), that the only reason Jerusalem was not considered public domain was that its gates would be locked at night. Raavan explains that Jerusalem had wide enough streets and foot traffic of 600,000 people.
Now, anyone who ever visited the old city of Jerusalem should be perplexed by this statement, as it obvious that the city did not have such wide streets and could not have provided space for 600,000 people. Despite the exaggerated descriptions in Midrashic literature, it is highly improbable that Jerusalem’s population ever swelled to 600,000 people, even during pilgrimage holidays. But let us not rely on our senses and turn to data suggested by archeologists and historians. The Roman historian Tacitus estimates that there were about a 100,000 people in Jerusalem at the time of the destruction of the Second Temple, while Josephus estimates that there were 600,000 people. Both estimates are exaggerated and cannot be supported by the physical evidence and the structure of the city. Modern science estimates of the population of Jerusalem, from the minimalist to the maximalist approaches, are as follows:
- During the period of the United Monarchy, the time of King David and King Solomon and a couple centuries thereafter (10th-8th C BCE): 2,000–5,000.
- By the end of the First Temple period (586 BCE), the walled city of Jerusalem covered 160 acres, and its population was 8,000, according to archeologist Hillel Geva. Other population estimates of Jerusalem during the nearly 200 years before the Babylonian destruction vary widely, but Geva’s estimate is carefully grounded in archaeological data.
- After the Babylonian destruction, few inhabitants remained in the city, and it was not until the Hasmonean period (150–50 BCE) that Jerusalem flourished again, just as it had at the time before the Babylonian destruction and reached a population of 8,000.
- Regarding the Herodian or Early Roman period, from 50 BCE to the destruction of Jerusalem in 70 CE, estimates of the city’s population at the time of the Roman destruction vary widely, from 20,000 to nearly a quarter million.
As we see, Jerusalem never supported a population of 600,000, and so the argument that the definition of Public Domain depends on the volume of foot traffic would result in the conclusion that there was never a public domain, at least until modern times. One might argue that this supports the view of the other school of thought, which holds that wide streets alone would define a place as public domain, but this width is not mentioned in the Talmud regarding Shabbat and such wide streets were not in existence in Israel at the time of the Mishnah and the Talmud.
Modern day problems
The prohibition of carrying into, from, or within the public domain poses tremendous difficulties, exorbitant cost of initial construction, and the burden of constant maintenance.
The Eruv is usually maintained, especially outside Israel, by private citizens, and as a result is more common in affluent areas. This limits the choices of young couples when considering where to live, since they must have an Eruv to be able to go out with their children. Many couples find it difficult to afford a house within the Eruv boundaries.
In the United States alone there are about 215 communities with their own Eruv, and in Brooklyn three independent Eruv systems coexist and overlap. Very few of the Eruv websites post full details of the cost of the Eruv to the community, and while I know of some which are maintained by volunteers, judging by the few which do, the cost of all USA eruv systems could hover between 2M-15M dollars, money which could have been used by the Jewish communities to help the needy.
The website of the Los Angeles community Eruv, for example, gives this data:
Our annual budget runs at about $120,000 per year… We ran about $30,000 short this year and had to borrow it from our emergency fund… used lift truck must be purchased …it will cost $70,000… we are looking to raise: $120k + $30k + $70k for a total of $220,000… we actually ran out of money and had to write a personal check…
The Boston Eruv, which provides data from 1999 but no current figures, speaks of an initial cost of 88K and a yearly budget of 26K, while the annual cost of the New York Eruv, according to a report in the WSJ, is above 125K.
Sometimes the Eruv is down before Shabbat and then the whole community is paralyzed, while in other cases, following a snowstorm or other harsh weather conditions, rabbis recommend that people would consider the Eruv to be compromised. Those who need to be outside cannot take a cane or even gloves, according to some, and salting or shoveling one’s sidewalk becomes forbidden, causing hazardous conditions for pedestrians (to clarify, salting and shoveling not only are permitted, but are mandatory, whether there is an Eruv or there isn’t.)
For parents with young children who live where there is no Eruv, or where the Eruv has been compromised by the weather, any visit to friends and family, or even a walk to the synagogue or the playground, has the potential of becoming a nightmare and a traumatic experience.
Considering all this, as well as what we have learned in the previous posts, the question must be asked: isn’t it about time we reevaluated the concept of Eruv in modern cities and tried to find a less costly solution? I believe that the answer is positive, and the classic works of Halakha have already provided for us the tools to create such a solution. Let us consider the ways in which one can be lenient when it comes to Eruv. Talmud Yerushalmi (Eruvin 1:1) states:
א”ר יעקב בר אידי בשם ר’ יהושע בן לוי, הלכה כדברי המיקל בהלכות עירובין.
R. Yaakov bar Idi in the name of R. Yehoshua ben Levy said: In the laws of Eruv, we follow the most lenient opinion.
R. Meir HaCohen of Rothenberg (1260-1298), in his commentary on Maimonides’ Mishneh Torah (Shabbat 16:10), writes:
הגהות מיימוניות, שבת טז:י: וכן פירש ר”ח דקיימא לן כר’ זירא דמיקל בעירובין. וכתב מהר”ם וז”ל: מדבריו למדתי דסבירא לן הלכה כדברי המיקל בעירובין, ואפילו בפלוגתא דאמוראי, אפילו בפלוגתא דמחיצה כגון הכא.
Rabbenu Hannanel (990-1053) explained that we accept the ruling of R. Zeira who says that we follow the most lenient opinion regarding Eruv. [My master] R. Meir of Rothenberg (1215-1293) wrote that this applies even to a dispute between later sages (i.e. of the Talmud and not only the Mishnah), and even when the dispute is in regard to the validity of a partition [to serve as an Eruv].
Rabbi Moshe of Coucy (13th C) writes in his Sefer Mitzvot Gadol:
ספר מצוות גדול, עשין, עשה דרבנן א: שמן התורה אין קרוי רשות הרבים אלא סרטיא, והיא דרך המלך ההולכת מעיר לעיר, ופלטיא הם המקומות שחוץ לעיר רחבים מאד שמתקבצין שם ביום השוק. וכן בתוך העיר ימצא ר”ה כגון שרחוב שלה רחב שש עשרה אמה… הילכך אין חשוב רשות הרבים בפחות מרוחב שש עשרה אמה, ומפולש משער לשער, ובוקעין בו ששים ריבוא כמו בדגלי מדבר.
By biblical law, the only domain which can be defined as public domain is the Strata, which is the highway connecting cities, and Platea, which are the areas outside the city where people gather for the market place.
Note that both places defined by the author as public domain are outside the city. He goes on to say:
At times, there will be public domain within the city, for example, if there is a street which is 26 feet wide…. Therefore, for a place within the city to be called public domain, it must be 26 feet wide, stretch in a straight line from one gate of the city to another, and have daily foot traffic of 600,000 people.
The informed reader will realize that when those words were written, there was no city in the Middle East, Europe, or North Africa, which met those conditions. Was the author suggesting that Public Domain, by biblical standards, does not exist?
Eruv: Conclusion
As we have seen so far, in rabbinical times the label “Public Domain” could have been applied only to highways and market places, which were usually in the city’s outskirts. This might explain the intriguing statement of R. Yehudah HaLevi (HaKuzari 3:50-53), which we discussed above, that the rabbis forbade something which was not forbidden by biblical law.
In the last thousand years, dozens of Poskim and commentators have opined that there is no place which meets the biblical requirements of “Public Domain”. Most important among them, however, is Rabbi Yosef Karo, who explicitly writes in Shulhan Arukh (Shabbat 303:18):
והשתא דלית לן רשות הרבים גמור הוה ליה כל רשות הרבים שלנו כרמלית.
Now that we do not have a true public domain, our public domains are considered Karmelit.
This statement is important because in the last forty of fifty years there has been a campaign of misinformation, led by some prominent Sephardic rabbis, to denounce the validity of Eruv. Their argument was that Eruv based on strings and poles cannot permit carrying in a true public domain, and gated fences must be built in such places. They also claimed that Sephardic communities never relied on an Eruv, while I remember very well that the practice of all Sephardic scholars in Jerusalem in the 1960’s and 1970’s was to rely on the Eruv. I also heard from my grandfather, that this was the practice out of Israel. Those Sephardic rabbis claim today that Rabbi Yosef Karo rules one of the following conditions suffices to create a public domain: a) 26 feet wide road, or b) foot traffic of 600,000 people. But in several places in his Bet Yosef and the Shulhan Arukh, as the one cited above, Rabbi Karo joins the choir of Poskim who agree that we have no such thing as Public Domain (see the analysis by Rabbi Ovadia Yosef in his Yabia Omer.)
Let us see what can cause an inhabited enclosure to not be considered Public Domain:
- The area must have 26 feet wide streets.
- These streets should be used by 600,000 people daily.
- These 600,000 people must be pedestrians, since cars form a separate domain.
- The streets must run in straight line from one end of the city to another.
- Even if they run from end to end, they are crossed by other streets which are not public domain.
- Public domain is considered as such only if people can move there freely and with no interference. Traffic lights and signs, traffic police, maintenance work by the utility companies or the municipality, and security concerns of the government, control and regulate foot traffic on these roads so they do not really belong to the public.
- Finally, in the Yerushalmi Talmud (Eruvin 8:1), Resh Lakish says that in order to be considered public domain, the whole world must become flat, and if there is a valley or hill, that will not happen.
Since all these poskim agree that we have no public domain today, and since we have all these reasons to support the argument, how should we proceed about understanding and handing Eruv today, especially considering all the problems we have previously discussed? (see endnote for excerpts from the writings of Rabbi Ovadia Yosef and Rabbi Menashe Klein on the subject.)
The Solution of Rabbi Yosef Messas
It is in this context that we can rely of a groundbreaking ruling by R Yossef Messas, who is known for his tireless efforts to maintain traditional values and observance of Mitzvoth without causing strife and heartache to the religious populace. Rabbi Messas wrote the ruling in the 1950s in his hometown of Meknes, because of his great concern that people cannot observe Shabbat properly. Part of the manuscript of the ruling, which is 21 pages long, has been published by Prof. Moshe Bar-Asher. The manuscript is a letter R Messas wrote to R Raphael Baruch Toledano who disagreed with him.
R Messas writes that most authorities agree that today no domain could be defined as public domain. He goes on to say that the symbolic Eruv, made of strings and poles, only applies to the middle ground between the public domain in the private domain, called Karmelit. His conclusion is that if we have no public domain, there is no need for the Halakhic entity called Karmelit, or middle ground, and therefore there is no need for Eruv at all.
Rabbi Toledano apparently questioned R Messas’s ruling that one can carry without an Eruv and R Messas answered that it is not an absolute ruling but rather an attempt to help the people, who already have the custom of carrying on Shabbat, or those who are in dire circumstances.
He writes to R Toledano:
“…please join me, you as well as others who care about the well-being of the Jews, and then we will be able to issue an absolute and final ruling for all [relinquishing the need for Eruv], but first let me tell you what are the problems which my congregants face…”
R Messas lists, in twenty-one entries, all the different occasions where people carry without an Eruv. Now, other rabbis might have said that the solution is to build an Eruv, but R Messas, in his wisdom and understanding of human nature and the trends of the observant community, knew better than that. He understood that the behavior of people on Shabbat is only one facet of their approach to religion as they were redefining what they can and cannot do. R Messas knew that if he insisted on not letting people carry without an Eruv he will lose them. His prediction eventually is coming true today as many young people who grew up in observant households leave the path of Torah and Mitzvoth, because it does not resonate with their modern life and understanding. Like R Yisrael Moshe Hazzan in 1850’s Italy, R Messas wanted to find a remedy which will help rather than subdue the people.
He concludes his response to R Toledano with these powerful words:
“What are we going to say of the people? That they are all sinners? God Forbid! If we say so, R Shimon ben Lakish will make us bite the dust.”
He refers to the story of R Shimon ben Lakish who forced his colleague R Avho to eat sand after the latter criticized the behavior of the people of Caesarea.
R Messas might also have alluded to the fact that it was R Shimon ben Lakish who said that there is no public domain in the world.
Conclusion:
Rabbi Messas’ arguments and Halakhic stature are solid, and as we have seen through my analysis here, most poskim agree with him that the domains which exist today are only private domain and Karmelit. All that is needed is one step, admitting that there is no need to have a buffer zone if the public domain does not exist, to rely on his ruling and carry without an Eruv. One might decide to do so regularly, or only when the need arises, for example: in a place with no Eruv; after harsh weather damaged the existing Eruv; being stranded in an airport or seaport, etc.
It is my hope and prayer that people will be able to convince the rabbis that the Eruv situation is far from being ideal, and that they should heed the call of rabbi Messas and join him, thus making his ruling into the majority opinion.