String theory, Hamptons style
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String theory, Hamptons style

The eruv is back. That is, yet another community has risen up in protest against the installation of an eruv that almost certainly will act as a magnet to attract those Orthodox and Conservative Jews for whom an eruv is essential. This time, the battle line is drawn in New York’s Hamptons, with the Tenafly dispute of a few years ago smack at its center. (See the article on page 12.)

The Jewish opponents of the Hamptons eruv claim that erecting a barely visible, completely unobtrusive string around their village somehow would violate their religious rights, by which they probably mean that they would prefer not having observant Jews of any stripe in their neighborhood. Besides, they say, who needs an eruv? It is nothing more than a legal fiction and that in itself is offensive to them.

KEEPING THE FAITH: One religious perspectIve on issues of the day Are they correct? After all, there is no explicit prohibition against carrying in the Torah, but that is only because the Torah goes out of its way to provide a skeletal outline of the law, avoiding specifics that potentially could weigh down a law in the future and make it obsolete. It leaves the question of “putting meat on the bones” to the knowledgeable authorities in every generation.

So it is, then, that the Torah proscribes “any work” on Shabbat (see, for example, Exodus 20:10), but provides no definition of work. Left alone, this would forbid virtually any kind of work, no matter how trivial or how necessary (serving dinner, for example). Obviously, such a law has no chance of surviving for very long. A definition of work must be found that will permit some kind of work even on Shabbat.

That is where rabbinic interpretation comes in. Exodus 35 begins with Moses restating the Shabbat commandment, and then goes into a discussion on how to construct the mishkan, the portable tabernacle.

This proximity permits the Babylonian Talmud tractate Shabbat 49b to state with authority: “[The Torah’s definition of ‘work’ in the Shabbat commandment]…corresponds to the forms of labor in the tabernacle.” This included the following: “They lifted up the boards from the ground to the wagon, therefore you must not carry in from a public domain [the ground] to a private one [the wagon]; they lowered the boards from the wagon to the ground, therefore you must not carry out from a private domain [the wagon] to a public one [the ground]; they transferred [building materials and supplies] from wagon to wagon, therefore you must not carry from one private domain to another one … via public ground.”

The prohibition against carrying, however, clearly goes much farther back than the talmudic sages of blessed memory. Nechemiah deals with the question in the early days of the Second Temple (see Nechemiah 13:19). In the days of the First, it was the prophet Jeremiah who railed against carrying on Shabbat (Jeremiah 17:19-22): “Do not carry a burden out of your houses on the day of Shabbat,” he warns.

The proscription thus dates back at least 2,600 years. From the way Jeremiah states it, however, it is just as clear that the ban is much older still – perhaps as old as the Torah itself.

If so, the only explanation is that carrying was forbidden because it was associated with work on constructing the mishkan. Thus, relating “work” to those activities involved in the construction of the mishkan also must predate the talmudic age by many hundreds of years.

Now, however, we are confronted with how to define “carry.” What does the word mean in the context of the Shabbat commandment? Obviously, I cannot carry something heavy, such as wooden boards, but am I also prohibited from carrying something that weighs practically nothing, such as a handkerchief?

Because no Torah verse can be found on which to base a definition, the prohibition must be considered all-inclusive. As stated earlier regarding “work,” however, such blanket prohibitions are untenable. There always will be a need to provide for exceptions and exemptions, in order that the law not become unnecessarily burdensome.

Is there a way around this that does not make it appear that the sanctity of Shabbat is being deliberately diminished for the sake of convenience?

In every law code, including U.S. law, the way around the burdens of absoluteness is the legal fiction. Thus, many state legislatures are only part-time bodies. The laws in those states mandate that the legislature must go out of business by a date certain. Inevitably, the legislature in question still has scores of bills pending as the clock pulls to within a couple of minutes before that final stroke of midnight. How are the bills acted upon in reasonable fashion without violating the letter of state law regarding closing time?

By stopping the clock.

The late-running legislature simply decides to stop the clock one minute before closing time. During that “minute,” which can last days or weeks, the legislative calendar is cleared. The clock is then restarted and the legislature winds up its work at the stroke of “midnight” on the date certain (even if that occurs at 3:30 in the afternoon on a day more than a month later).

An eruv is such a legal fiction. It exists as a device, not because of a desire to get around the law against carrying, but out of a need to make that law manageable (by effectively supplying definitions) and meaningful: Those people for whom the eruv is necessary are aware of its existence and of the need to remain within its boundaries. Rather than carrying being a negation of Shabbat, it thereby becomes a conscious affirmation of the sacred day.

That raises other questions: How should “carrying” be defined and what exactly constitutes a “public domain”? Those discussions will have to await a future column (perhaps next week, if events do not intervene).

For now, suffice it to say that an eruv is indeed a legal fiction, as the Hamptons anti-eruvists would argue, but that does not detract from its legitimacy. To argue that rights are being violated by the erection of an eruv is fatuous, because unless you know where the eruv is situated, the average person on the street will be totally unaware of its existence.

There is an issue that should concern the Hamptons crowd, however. By carrying on this dispute the way they have, they have caused outsiders to laugh at Jewish law and tradition. In other words, they have desecrated God’s name. That may not trouble them much, but it should trouble the rest of us a great deal.

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