Bishul Akum
Question
I saw in Ohr Yiitzchak that the Rav hold that it's OK for Sephardim to eat in restaurants if the Jew lights the fire. He notes that the Shulhan Arukh disagrees, but that Sephardim can rely on the Rama and the rishonim who hold that the issur doesn't apply to people paid to cook, and since it's derabanan we can rule le-kula. This is very interesting, and I wonder why the Rav in this case feels that the Shulhan Arukh's ruling can be rejected just because the Rama disagrees and there are also rishonim that disagree. Surely there are many such examples, but if you adopt this approach generally then the Shulhan Arukh is no longer a binding code. Does the Rav have a kelal which explains why in some cases case he is prepared to deviate from the Shulhan Arukh (for Sephardim) but not so in other cases?
Answer
Answered by Aaron AbadiThe mechanics of determining a Halachah cannot be taught on one foot. The notion that a Posek cannot deviate from Shulchan Aruch, is a myth. There are hundreds of things that we do that is not like the Shulchan Aruch, but rather like the Poskim that argue on him. In this specific case, the logic used is very standard in Poskim. The rules of Psak that you are basing your understanding on, are based on a widespread misconception of how the system works. You can't just guess these things or hear it from a friend. Psak is not a game and not subject to public opinion. Strangely enough, the entire society today relies on the Magen Avraham on an issue of Chilul Shabbat DeAraita, against the Shulchan Aruch, the Rama, and a majority of the Rishonim, by carrying in the Eiruvs around cities on Shabbat. I don't have a problem with the Magen Avraham making such a Psak, and his entire community should follow his Psak. But who are we to just grab his opinion against the 98% that disagree. There are very many rules to making a Halachic decision. The only way to get the proper education on the process is to learn through Tanach, Shas, Poskim, etc. from A -Z. Also, reading through Teshuvot can give you a real sense of how the Poskim's process worked. Of course, Yir'at Shamayim must come first. If this is done properly, then one can come to a full understanding of the system. Now, I'll show you the flaws in your statement, to help teach you where you went wrong. You say, "I wonder why the Rav .... feels that the Shulhan Arukh's ruling can be rejected ......then the Shulhan Arukh is no longer a binding code." This statement is based on assumptions that the Shulchan Aruch is a Chok, it is rule and must be followed to the letter. In Psak this does not exist. The Posek must learn through the Gemaras, Poskim, & Shulchan Aruch, he must determine the sources and severity of each rule. Then he can determine where to apply what. When the Rama argues on the Shulchan Aruch about if lighting the fire alone is OK, we Sephardim follow the Shulchan Aruch. In the argument of if an employee is also considered Bishul Akum, we follow the side that is Machmir. We do not negate completely the other opinions of the learned Talmidei Chachamim, we just follow this one in this case. In this scenario, the two cases collide. The employee is cooking and the Jew lights the fire. We are Metzaref (combine) the fact that the RAMA would say it's good for just lighting the fire, and others would allow it because it was an employee, and this is all only Derabanan, and we are Matir. The concept is that although when it is in it's absolute case where a Jew lights the fire & that's it, we follow the Shulchan Aruch & are Machmir, but once other components weaken the strength of the Issur, it must be readdressed, and in this case it was determined to be OK. This is a very classic process in Psak, and over time studying properly, you will see it often. Try not to stick to the things you thought are the ways that the system works, and open your mind to learn the truth & then your studying will evetually bring you the truth. Many people take the concepts that they heard here and there & spend their time studying justifying what they thought. If all that you thought must be correct, there would be no need to learn. AA