Chana Luntz wrote:
> It is only if you believe there is some reason why the fact that the
> public is now using the road for the purpose that was intended (ie that
> what is needed is a chazaka on public use, not just an established
> public ownership and expense) is what triggers the obligation, would you
> limit it to stage three. It is possible to argue this position, but it is
> much more difficult to see it in the language of the Shulchan Aruch.
How so? It doesn't say a word about the public's trouble or expense.
What makes you assume that is even in the SA's (or the gemara's) mind?
All it says is that the road is there, and that fact alone is assumed
to be enough to explain why there's a problem.
Now you ask why the road can't just be closed down or moved, and assume
that the answer is the public expense and inconvenience. But the more
conservative answer is that it's simply not an option, because once the
public (i.e. the unorganised masses, not the state) has the right of way
it can never be relinquished. And when reasoning from a source, when
there are two possible readings one must take the more conservative one;
that's simple logic.
In any case, as I wrote earlier, I think this division of road
construction into stages is artificial, and chazal had no notion of it;
it's imposing modern ideas onto ancient sources. In Chazal's day a road
was a road, it came about long ago in a single event, and it would be a
road forever more.
> In addition, I was trying to point out that there is a clear differentiation
> between a greenfields site and where it is not. The analogous situation is
> where one already has a road, but it is carrying too much traffic and needs
> widening. Any planner is much more constrained in terms of what he can or
> cannot do when discussing widening an existing road, rather than choosing a
> route for a new road. And this particular issue does appear to me to be
> directly addressed by the meforshim and the Shulchan Aruch.
It's certainly not *directly* addressed by them. They don't mention
widening at all. The case they're discussing is a standard road, that
goes where it goes, is in use by the public, and there's not a hint
about any planned works on it.
> Because while
> it is not clear from the gemora itself whether the grave needs to be found
> on the road, (ie where the cohanim would inevitably become tamei if walking
> on it), or just next to it, the meforshim all use the word samuch. Now if
> there is a grave that is just samuch to a road, there is always going to be
> some solution, whether more or less expensive, to protect the cohanim -
> ranging from requiring them to wrap themselves in special boxes or box off
> the grave or shift the road a bit or whatever.
Most roads in those days weren't very wide. The width of an ox-cart,
more or less. We're talking cow paths, not super-highways. A width of
16 amot was considered unusual, and was a condition for a reshut harabim
de'oraita. The difference between a grave near the road and on it
wouldn't have been very much.
And as I mentioned above, I'm not sure shifting a road is even an option.
The standard road in those days was a "derech harabim" that existed by
right of long-standing usage, and people had no right to stray off it,
let alone to shift it. Even if the area around was hefker, and people
started using the side opposite the grave, the side with the grave would
still be part of the road, because derech harabim can't be usurped. The
road would just be a bit wider than it was, and the grave would still
endanger anyone who didn't know not to walk on that side. There would
have been no entity representing the "rabim" who could sell off that
side of the road, or declare it no longer part of the road, etc.
A road belongs to all the travellers of the world, like a beit knesset
shel krakin, so nobody can give it up.
And that's all assuming we can get the mass of road-users to do anything
at all, which is an iffy proposition. More likely at least some of them
will ignore us and keep going where they've been going. So moving the
grave is the only option available.
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Zev Sero The trouble with socialism is that you
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