In the past I have discussed issues that arose in poskim in the age of denominations. Recognizing the existence of large groups of Jews who have fundamentally different assumptions about Halacha and Hashkafa presented a series of challenges for poskim who dealt with the issues in different ways. Another social issue that arose, this time within the Orthodox community, was how to deal with varying Orthodox groups with divergent legitimate traditions and practices. Specifically, while Ashkenazim and Sfardim living in Europe or the Middle East may have had different Halachic positions, they mostly lived independently so this did not cause a problem. However, once the communities left for America, Israel, Europe, etc., they created communities together, forcing people to deal with multiple Orthodox traditions in the same place. I explored one example of this issue: here.
In Israel, at first, the reaction was an attempt to enforce Ashkenazi hegemony, which some of the Sfardi rabbanim were willing to go along with, such as Rav Uziel. Rabbi Ovadiah Yosef spent much of his life fighting back, restoring the legitimacy of the Sfardi tradition. How he did this and the implications of this for the many divergent traditions that he included within his community has been dealt with extensively by Rabbi Benny Lau in his book about R. Ovadiah. Here I wanted to explore one small issue that highlights the types of problems and solutions that arose – the issue of bishul akum.
There is a dispute in the Rishonim and before, that was later carried on by the Mechaber and Rama as to how much involvement by a Jew will remove the problem of bishul akum. The Rama rules, that the many leniencies that are found by pat akum, by bread, apply to all cooked foods as well. Thus, if a Jew so much as stirs the food or turns on the flame, the food is fine. He even argues that throwing in a single splinter of wood into the fire is enough. The Mechaber, on the other hand, while recognizing some of these leniencies by bread, thinks that by cooked food, the Jew must actually put the food on the stove, raising the bar significantly. This dispute does not only affect the food being cooked, but as the standard position is to accept the Rashba (against the Raah) that bishul akum makes the vessels not kosher, this would affect all food cooked in the facility. This dispute created a significant problem for Sfardim when most restaurants in Israel followed the position of the Rama, seemingly forbidding them from eating at most restaurants, hotels, and the like.
Sfardi poskim tried to deal with this on multiple levels. One was the practical – they tried to persuade the Ashkenazim to accept the chumra of the Mechaber to allow them to eat at the restaurants. This is one element of recognizing varying traditions – being willing to cater to them. R. Ovadiah chided them for calling their kashrut organizations “Mehadrin” when they were lenient on this issue – showing how little they cared about the Sfardi position. I believe that things have gotten better in the last few years.
However, while waiting for Ashkenazim to respect the Sfardi postion, Sfardi poskim tried to come up with Halachic solutions. Some presented radical new positions, such as Rabbi Amar who suggested that bishul akum only applied to idol worshippers, thereby excluding Muslims. In Israel this would almost eliminate the situation.
R. Ovadiah, on the other hand, as he was wont to do, came up with a sfek sfeika. He noted that there are two positions, both rejected by the Mechaber, that could permit eating in these restaurants. 1) There are many Rishonim who thought that bishul akum was not a problem if the non-Jew cooking was a slave. While for many Rishonim this was limited to a slave and not a paid worker, R. Ovadiah notes that there are some who include workers in this category. The logic is to argue that when someone is paid to cook for the Jew, either he is considered an extension of the Jew, or there is no problem because it does not cause the same level of intimacy that cooking out of friendship would. 2) Some Rishonim think there is no bishul akum if the cooking took place in the home of the Jew. 3) He combined these with the position of the Rama that if a Jew turns on the fire this solves the problem to create a sfek sfeika against the Mechaber and ruled that under the circumstances Sfardim could rely on these kulot taken together and eat in establishments that followed Ashkenazi psak.
One sees here a desire to allow Sfardim to live among Ashkenazim, even before he managed to convince Ashkenazim to recognize that there were other Halachic positions they needed to respect. To do this, he is willing to rely on sfek sfeika, even when he is ruling against the Mechaber on all the issues. Note that he uses sfek sfeika in a way not usually used by poskim, and despite the fact that the Shach pushed against using sfek sfeika altogether. [In the shiur itself I dealt a bit more extensively with the issue of sfek sfeika and its paramters.]
R. Aharon Solovetchik used to poskan that Sfardim in YU could rely on the Ashkenazi psak, basing himself on a Rama who allowed those who were strict not to eat pat akum (even pat paltar) to eat by others to avoid strife. The sentiment in the same as R. Ovadiah, though the mechanism is different. It is also difficult to apply, both because the Rama is dealing with a chumra, rather than a basic halachic issue, and because it is not clear that Sfardim would be willing to rely on a different kula of the Rama to justify relying on the Rama against the Mechaber.
While many Sfardi poskim may have wanted to agree with R. Ovadiah. However, some, such as Rabbi Messas, thought that it was illegitmate to rule against the Mechaber, even to create a sfek sfeika. In general, one cannot use a position that is considered rejected for a sfek sfeika, at least according to most poskim. For R. Ovadiah, positions rejected by the Mechaber were still not out of bounds – for R. Messas they were.
This question reveals some of the issues and potential solutions, both legal and practical, that arise when different Halachic traditions have to exist together in a way that they did not in the past.