Shabbos 99 Defining the public domain, and the great Eruv controversy

In the first chapter (Shabbos 6a), we were introduced to the 4 רשויות (domains) of Shabbos, roughly as follows:

1. רשות היחד
   (private domain)- an area at least 4 טפחים (hand-breadths) wide that is either raised at least 10אמות (arm-lengths) above the ground, surrounded by partitions of that height, or sunken into the ground at that depth.
2. רשות הרבים

• large and busy thoroughfares and markets, and מבואות (quieter side streets) that open to them

1. כרמלית
   ( some examples given there are the sea, open valleys and a כרמלית proper, but this is generally understood to mean a place that is too open to be a private domain and too quite to be a public domain.
2. מקום פטור
   an exempt area.

We are also told that transferring an item from a private domain to a public domain, vice-versa, or 4 Amos within a public domain is a biblical offense.
On the other hand, transferring an item from either a private or public domain to a Carmelis or vice-versa, or transferring an item 4 Amos within a Carmelis, is only a rabbinical prohibition.

Although obviously we treat rabbinical prohibitions very seriously, we have mentioned numerous times that there are still certain leniencies with them that do not apply to biblical prohibitions, one of them being the idea of a שבות דשבות , an action that is only rabbinically prohibited for two separate reasons.

Such things, are permitted for the sake of Mitzva, great need, or to prevent suffering, at least when done by a non-Jew, and according to some opinions, even when done by a Jew (see earlier posts on שבות דשבות)

An example could be asking a non-Jew to carry or transfer something in, into or from a Carmelis, or according to the more lenient views, by a Jew in an unusual way in or into a Carmelis.

Pulling a pram with a child that is able to walk on his own inside a Carmelis could also be such an example, due to the rule of חי נושא את עצמו (a living person carries himself), perhaps to be discussed in another post.

Another important distinction would be in the case of a ספק (doubt) if an action is forbidden or not – the golden rule being that in doubt regarding a biblical rule, we need to err on the side of stringency, but when it comes to a biblical rule, we may be lenient out of doubt.

Perhaps the most important distinction between a רשות הרבים and a כרמלית is in the laws of Eruvin, which largely rely on the fact that the Eruv is made in an area in which it is only rabbinically forbidden to carry, such as a Carmelis, and not a רשות הרבים, where making an Eruv is far more problematic.

As such, accurately being able to tell the difference between a רשות הרבים and a כרמלית is essential and makes a major impact on daily shabbos life.

As usual, the main factors we consider in this distinction, are the properties of the דגלי מדבר (the biblical encampment of Israel), which are the basis for the מלאכה of הוצאה being performed in the work of the Mishkan, and thus qualifying as a forbidden category of work.

3 of the most commonly accepted distinctions between the two, are as follows:

1. A רשות הרבים needs to be at least 16 Amos wide, like the space in which the wagons passed (5 for each wagon, 5 for the space between them plus one extra for the Levi, as per our daf!)
2. A רשות הרבים must be open, not even covered at the top by a roof, as per the camp of Israel.
3. A רשות הרבים needs to have at least 600,000 people, like the population in the camp of Israel.

The first condition, namely the minimum width, is universally accepted, and based on an explicit statement on our daf, as well as in a Mishna (Bava Basra 99b), which according to Rashi, has its source in the reasoning mentioned on our daf.

The second condition has actually been the matter of debate on the previous daf, but seems to be the consensus of the poskim.

In contrast, the third condition has been and remains the subject of MUCH controversy.
On the one hand, there is NO specific source for this requirement in the Gemara.
It is only in some of the (mainly) Ashkenazi Rishonim (early commentators) that we see this requirement.
Although this could be a logical extension of the comparison to the biblical encampment, as mentioned above, as Rashi explicitly says (Rashi, Eruvin 6a) , it actually seems to be contradicted by our daf, which tells us that the ground underneath the wagons was considered a רשות הרבים – it is kind of hard to imagine 600000 people fitting into that space!
It is also a rather difficult suggestion, given that there were only 600000 men in the biblical camp, but far more people when women and children are included- as such, if we going for this rule, lets go even further and make the minimum number far higher! (see Tosfos Eruvin 6a who brings and resolves these difficulties.)

As such, the (mainly) Sephardi Rishonim, such as the Rambam (Shabbos 14/1), Ramban, and others (see Beit Yosef 345 for a list) , do not mention this requirement at all, and it remains a major debate to this day (see Shulchan Aruch 345/7 who brings both opinions, the more lenient one only as a יש אומרים (secondary opinion.)

In practice, mainstream Ashkenazi practice is to treat cities, or even neighborhoods within cities, that do not have at least 600000 people , as a כרמלית , and to allow regular simple Eruvin in such places (see for example Taz O.C. 345/6) , though there are certainly some Ashkenazim who, like many of their Sephardi brethren, are stringent.

For more, see for example Aruch haShulchan 345/14 for a lengthy treatment on this controversy in the Ashkenazi world, and compare Birkei Yosef with Yalkut Yosef on the same siman regarding what normative Sephardi practice should be.

These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.