Jewish law allows for divergent rulings by decisors, thereby effectively creating multiple halakhic communities. However, the legitimacy afforded differing authorities enables respect between communities. This halakhic pluralism has its limits. The most important is that only capable authorities receive this respect, of which the requirements are unclear. Many contemporary controversies hinge on this non-trivial question of who has the right to decide on halakhic issues.
An additional limit may be the interaction regarding a contested issue. If my rabbi considers a specific act forbidden, can I ask someone whose rabbi considers it permitted to do it for me? Halakhic pluralism defines that act as a sin to me but not to him. If it isn’t a sin to him, can I ask him to do it for me? A simple case is opening bottle caps on Shabbos: some authorities forbid it and some permit. Can I, someone who follows R. Moshe Feinstein’s strict ruling, ask a friend who follows R. Shlomo Zalman Auerbach’s lenient ruling to open a bottle for me? Can I ask someone to carry in the eruv I do not trust? These are fairly minor but similar questions can be asked on life-and-death halakhic issues.
I believe there are five technical concerns involved in this question. Additionally, we will have to sharpen our distinction between different types of stringencies. There are certainly other social and public policy issues that we will not address.
II. Stumbling Block
The Sages interpreted broadly the Torah (Lev. 19:2) prohibition against placing a stumbling block before the blind (lifnei iveir). In halakhah, it includes encouraging someone to sin (Avodah Zarah 6b). Our current concern is how to define sin: is it something that I, the potential placer of the stumbling block, consider a sin or what the potential stumbler considers a sin?
Conceptual Talmudists argue that a debate exists regarding the nature of this prohibition. Some believe that there exists a general prohibition against causing others to sin. Others, however, hold that this law extends other prohibitions; just like you may not commit that sin, you also may not cause others to commit the sin. This dichotomy is used to explain a number of halakhic debates, such as whether lifnei iveir applies when the potential sinner fails to commit the sin and whether one must be martyred rather than causing someone to commit one of the three cardinal sins (see R. Dovid Gottlieb, Ateres Ya’akov, ch. 7; R. Moshe Tendler, “Iyunim Be-Din Lifnei Iveir” in R. Nissan Alpert, R. Aharon Kahn, R. Hershel Schachter eds., Yevul Ha-Yovelos).
Perhaps our question hinges on this debate, as well. If livnei iveir is a general prohibition against causing others to sin then it should not apply when the act does not constitute a sin for them. But if it is an extension of specific prohibitions, forbidding not only your commission of the act but of causing others too as well, then it would apply as long as the act is forbidden to you.
III. Lenient Views
Not too long ago, smoking was so common that it was a near-universal practice (shaveh le-khol nefesh) similar to a cooking labor and was therefore allowed by most authorities on Yom Tov. That is no longer the case and, in my experience, most forbid smoking on Yom Tov today. The Sha’ar Ha-Melekh (Hilkhos Ishus 7:12) ruled that someone who held that smoking is forbidden on Yom Tov may not give a cigarette to someone who follows the lenient view. According to the Sha’ar Ha-Melekh, lifnei iveir is an extension of the specific prohibition. If you may not smoke on Yom Tov, then you may not assist anyone else to do so even if they have halakhic permission to do so. However, it seems to the bulk of authorities disagree.
The Mabit, R. Moshe of Trani (Responsa Mabit 1:21), addressed an ongoing difference of opinion in 16th century Israel. Rabbis disagreed whether gentile produce of the Sabbatical year falls under shemitah regulations. Those who believe halakhah requires treating the produce with proper shemitah holiness face a dilemma in buying and selling. You are forbidden to buy or sell shemitah to (or from) someone who will not treat the food or money with appropriate respect. Can you buy and sell produce to those who follow the lenient view?
The Mabit ruled that yes, you may. As proof, he cited a story about Beis Shammai and Beis Hillel, related to but less famous than the story of them intermarrying even though they disagreed whether the product of a union involving a tzaras ervah (questionable levirate marriage) is a mamzer. The Gemara (Yevamos 14a-b) also states that Beis Shammai and Beis Hillel would use each other’s utensils even though they disputed the purity status of some utensils. The Gemara asks that, if they did not identify to each other which utensils were under dispute, how could Beis Hillel use Beis Shammai’s utensils when they might be impure according to Beis Hillel? Rather, they must have told each other which utensils to avoid.
Why, the Mabit asked, didn’t the Gemara state that Beis Hillel would prevent Beis Shammai from using a utensil considered impure by Beis Hillel? Shouldn’t lifnei iveir require Beis Hillel to prevent something they considered a sin, even if Beis Shammai did not? Rather, argues the Mabit, since each group was following a valid halakhic opinion, lifnei iveir was not a concern.
R. Avraham Sofer (Responsa Kesav Sofer, Yoreh De’ah 77) agrees with this proof and offers another. In three places in Chullin (44b, 99b, 148a) we find a strict rabbi sending a questioner to a lenient rabbi. If the strict rabbi believed that the animal brought before him was not kosher, how could he send the questioner to a rabbi who would permit the food? Is that not lifnei iveir, causing the questioner to eat non-kosher food? Rather, since the other view is a legitimate halakhic position, you are not causing a sin.
Quoting both these responsa, R. Shlomo Zalman Auerbach (Minchas Shlomo, kamma 44) ruled that someone who rejects heter mekhirah, the exemption of produce from the Sabbatical year by selling land to gentiles, may buy produce from those who accept it. Even though you may be concerned that the money exchanged for produce acquires Sabbatical holiness but will not be treated as such by the merchant who relies on heter mechirah, we need not be concerned because he relies on responsible authorities. According to his rabbis, he isn’t sinning. Therefore, you are not causing him to sin.
In summary, according to the Sha’ar Ha-Melekh, you may not assist someone to do something you consider forbidden even if he follows a different legitimate view. According to the Mabit, Kesav Sofer and R. Auerbach, you need not be concerned about lifnei iveir if someone follows a legitimate lenient view. However, this prohibition is only one of many that we must consider.
The general rule is that ein shali’ach li-dvar aveirah, there is no agent to sin. If I ask you to sin for me, I am not liable for your action. The Talmud (Kiddushin 42a) explains with the classic formulation: “Divrei ha-Rav ve-divrei ha-talmid, divrei mi shomin?, The word of the Master and the word of the student, to which do you listen?” You are obligated to refuse a request to sin. If you accept, it is your responsibility and not that of the sender.
However, what if you do not consider it a sin? The above logic presumably no longer holds and the agency exists. If the sender considers it a sin and the person sent does not, then presumably the act is committed on the sender’s agency. This would mean that if I ask someone to carry for me in an eruv I reject but he accepts, then his carrying is my sin. This is distinct from lifnei iveir because here the act is done on my request. Even if lifnei iveir does not apply, if I ask someone to do an act, I am liable because he is my agent.
The underlying question of agency is explicitly debated in the Talmud (Bava Metzi’a 10b). In a discussion that reminds us that Brisker analysis has ample ancient precedent, the Talmud asks what concept underlies a courtyard’s automatic acquisition of ownerless items that fall into it. If a courtyard is considered its owner’s agent then the rule that ein shali’ach li-dvar aveirah (no agency for a sin) should protect the owner from acquiring a forbidden object. For example, if someone else’s animal wanders into your courtyard and you shut the gate, are you stealing the animal via your courtyard’s acquisition? If the courtyard cannot act as an agent for a sin, then perhaps you have not technically stolen the animal. But clearly you have stolen it.
The Gemara offers two opinions to explain the theft. According to Ravina, an agent that is not obligated in the prohibition can become an agent for sin. According to Rav Sama, an agent that cannot refuse a request can become an agent for sin. Both approaches explain the potential agency of a courtyard for theft. And they also impact our case.
According to Ravina, if your friend is not prohibited from opening a bottle cap on Shabbos then he can become your agent for that sin. If you ask him to perform the act which is forbidden to you but not him, then the sin falls on you. According to Rav Sama, because your friend can choose to say no, we still say ein shali’ach li-dvar aveirah and he is not your agent for sin.
Which view do we follow? Medieval commentaries debate this. Rema (Yoreh De’ah 160:16) adopts Ravina’s approach but the bulk of later authorities follow Rav Sama (Shakh, Choshen Mishpat 182:1; Mishneh La-Melekh, Hilkhos Malveh Ve-Loveh 5:12; Machaneh Ephraim, Sheluchin no. 9). So far, we have discussed general principles that apply to any prohibition. Shabbos is different.
V. Weekday Speech
The prophet Isaiah says: “You shall honor it, not doing your own ways, nor pursuing your business, nor speaking about it (ve-daber davar)” (Isa. 58:13). The Sages derive from the words “ve-daber davar” that you may not speak on Shabbos about forbidden activities (Shabbos 113a-b).
The Gemara (Shabbos 151a) permits asking someone to guard your fruits within his domain (techum), outside of your reach. You cannot guard them on Shabbos but you may ask him to do so. The Rashba (ad loc.) explains that this is allowed because the person doing the work is allowed to. While the Ran (ad loc.) disagrees, the Shulchan Arukh (Orach Chaim 263:17) rules like the Rashba. According to this view, you should be allowed to ask someone to do something if he considers it permissible.
VI. Shabbos Goy
There is a special rabbinic enactment prohibiting asking a gentile to perform a forbidden labor for you on Shabbos (amirah le-nokhri). While gentiles are not required to observe Shabbos, they may not do for you what you may not do for yourself (absent the many exceptions). Presumably, this applies with even more force to another Jew who is obligated to observe Shabbos. Even if this specific act does not fall under his own observance, logic implies that it still falls under amirah le-nokhri.
Maharam (R. Meir) of Rotenberg (Responsa, no. 76) rules that someone who observes two days of Yom Kippur may not eat, after his fast concludes, food cooked for him on that second day. Orechos Shabbos (vol. 2 p. 466) deduces from this ruling that the prohibition of amirah le-nokhri applies to a Jew, as well. A Jew may not be your “Shabbos goy”.
VII. Shabbos Acts
Another rabbinic enactment forbids obtaining benefit from the result of a Shabbos violation (ma’aseh Shabbos). You may not eat food that was cooked on Shabbos. However, the question remains whether the violation must be according to the view of the person acting or the person benefiting. According to the above Maharam, this rule clearly depends on the person deriving benefit. Even if the person who cooked the food did not violate his own halakhic standards, you may not eat the food if you could not cook it yourself.
This is different than someone who accepted Shabbos early asking someone who did not yet accept Shabbos to do forbidden work. In that case, the difference is in situation, not standards. If you had not accepted Shabbos early, you would also be able to commit that act. Additionally, the Magen Avraham (263:33) writes that someone who has not yet recited havdalah to end Shabbos may ask someone who has to do work because the former can always recite havdalah himself (perhaps someone who has accepted Shabbos early can also undo that with hataras neder). This further differentiates this case from that of someone who follows a specific halakhic view, which cannot be switched (see Rema, Yoreh De’ah 242:31).
However, the Mishnah Berurah (318:2, 27) rules that whenever halakkhic authorities dispute whether an act is forbidden on Shabbos, the result of such an act is never post facto forbidden because some authority would permit the act. Therefore, ma’aseh Shabbos never applies when someone else follows a legitimate lenient view. (I am not clear whether this Mishnah Berurah disagrees with the above Magen Avraham about Yom Kippur.)
From what we have discussed, it seems that during the week you are allowed to ask someone to do something that your rabbi considers forbidden but his rabbi considers permissible. R. Shlomo Zalman Auerbach and others rule that lifnei iveir does not apply and most authorities follow Rav Sama, that ein shali’ach li-dvar aveirah still applies. Halakhic pluralism means accepting that someone else may legitimately follow different religious practices than you.
However, on Shabbos this acceptance is limited. The Tzitz Eliezer (ibid.) rules that you may not ask someone to do something you hold is forbidden. However, if he does it on his own, you may benefit from it. This means that you cannot ask someone to open a bottle cap or carry in the eruv if you would not do so yourself. However, if he does it without your asking then you may pour from the bottle he opened or use what he carried.
R. Ya’akov Ariel (Be-Ohalah Shel Torah, vol. 5 no. 23) agrees with the above regarding Shabbos (he does not discuss a case of during the week) but adds an important distinction. Until now, we have assumed that refraining from a particular act implies acceptance of a prohibition. However, there are two reasons why you may follow a stringent view: 1) you (or your halakhic authority or community) may believe that halakhah follows that view, 2) you may believe that this view is worthy of concern, of extra-halakhic stringency, despite the baseline halakhah that follows the lenient view.
If you are strict for the latter reason, then none of the above applies. You agree that your fellow is following what you accept as well. Your stringency is extra-halakhic. The act is not even considered forbidden by you. Therefore, you may freely ask him to do whatever you believe is permissible, even if you are personally strict beyond the technical requirement.
Orechos Shabbos (ibid.) agrees with R. Ariel’s conclusion. However, R. Shmuel Wosner (Shevet Ha-Levi, vol. 1 no. 53) leaves it as an open question. In his recently published responsa, R. Asher Weiss (Shu”t Minchas Asher, vol. 1 no. 11 sec. 4 – thanks to R. Aryeh Lebowitz for bringing it to my attention) distinguishes between longstanding and new debates. On issues where communities have long followed a single ruling about Shabbos, he states that you may not ask someone who is lenient to do the act for you. However, on recent issues, such as opening bottles on Shabbos, he argues that it is not clear whether the act is forbidden and therefore you may ask someone who is lenient to do it for you. I find this distinction puzzling.[As usual, ask your rabbi any practical questions and don’t rely on discussions or rulings found online or in newspapers.]