Shiur #05: The Order of Priority When One Must Violate Shabbat (Part II)
Thus far we have analyzed the law of performing a melakha on Shabbat with a shinui or ki-le'achar yad, that is to say, in an unusual manner. Nevertheless, it goes without saying that if we wish to establish an order of preferences regarding the "best" way to desecrate Shabbat, we must consider the various alternatives and their meaning with respect to Shabbat desecration. As for the possibility of utilizing someone who is not Jewish, asking a non-Jew to perform a melakha on Shabbat (amira le-akkum) is forbidden by rabbinic decree.
The Rishonim explain this prohibition in various ways. Generally speaking, these explanations split into two main groups:
1) The non-Jew is regarded as acting as an extension of the Jew who asked him to do so. This appears to be the position of Rashi (Shabbat 153a, s.v. Mai), who writes that the non-Jew is regarded as the Jew's agent.
2) The non-Jew is not regarded as acting as an extension of the Jew, but nevertheless asking him to perform a melakha is forbidden for some side reason, e.g., lest a Jew come to perform the melakha.
There is a fundamental difference between these two explanations: is the prohibition to ask a non-Jew to perform a melakha on Shabbat regarded as a prohibition that involves an action, as follows from Rashi, or not? This question is explicitly discussed by the Gemara in Eruvin (68a), which permits amira le-akkum for things that are required for circumcision and justifies this by distinguishing between "a rabbinic prohibition that involves an action and a rabbinic prohibition that does not involve an action." According to many Rishonim, this means that amira le-akkum is regarded as a prohibition that does not involve an action, and therefore more lenient. The Rif (Shabbat 56a in Alfasi), however, implies just the opposite, that fundamentally amira le-akkum is regarded as a rabbinic prohibition that involves an action.
We find in several Talmudic passages that amira le-akkum is permitted for the sake of certain specific needs: the settlement of Eretz Yisrael (Gittin 8b); circumcision (Eruvin 68a); a sick person who is not in any danger (Shabbat 129a); and burial on Yom Tov (Beitza 6a). Halakhic authorities discuss at length the scope and force of these allowances, but this is not the forum to expand upon the matter. For the purposes of the present discussion, let us merely state that the more we diminish the severity of the prohibition and see it as a peripheral prohibition, the easier it becomes to extend the allowances to other areas, e.g., for the sake of a mitzva or to apply it in the case of rabbinic prohibitions. On the other hand, the more we see it as an essential prohibition, the more reason there is to restrict the allowance to cases of exceedingly great need. The Rema (Orach Chayyim 276:2 and 307:5) recognizes that there is a widespread custom to follow the view of the Ittur that amira le-akkum is permitted for the sake of a mitzva, but he himself notes that most of halakhic authorities disagree with the Ittur. The accepted Halakha follows the position of most Rishonim, who restrict the allowance to the mitzvot of settling Eretz Yisrael and circumcision and do not extend it to other mitzvot.
Now, if we accept the prevalent view among the halakhic authorities that amira le-akkum is forbidden even in the case of a mitzva and compare it to the law governing ki-le'achar yad in the case of a mitzva, we can reach an answer to our question. It would seem that the Gemara in Pesachim (66b) states explicitly that performing a melakha in an unusual manner for the sake of a mitzva is not forbidden. There, the Gemara relates the story of Hillel and the elders, who were confronted with the dilemma of Erev Pesach that falls out on Shabbat; the slaughter of the paschal offering is permitted, but how can one transport the knife to the Temple? The Gemara explains the issue as follows:
"Something that is permitted by Torah law, and a rabbinic prohibition stands in his way that can be performed ki-le'achar yad – what is the law in the case of a mitzva?"
He said to them: "I heard this law, but I have forgotten it. Nevertheless, leave it to the Jews; if they are not prophets, they are the children of prophets."
Assuming that this passage follows the common leniency, it explicitly follows that doing a melakha ki-le'achar yad for the sake of a mitzva is permitted. Now, if we rule that amira le-akkum is forbidden even for the sake of a mitzva, but doing the melakha ki-le'achar yad for the sake of a mitzva is permitted, this proves that ki-le'achar yad is less serious than amira le-akkum; therefore, it should be preferable to do the melakha in an unusual manner, rather than by way of non-Jew. There is, however, room to suggest that perhaps the allowance in Pesachim is restricted to the case of a paschal offering, similar to amira le-akkum in the case of circumcision. In that case, nothing can be inferred from the passage.
The Ran cited above (Shabbat 61a in Alfasi) discusses our very question regarding a case of financial loss. He maintains that the allowance of ki-le'achar yad is indeed preferable to amira le-akkum, and therefore only doing the melakha ki-le'achar yad is permitted in the case of financial loss. What follows then is that in a case where it is necessary to desecrate Shabbat, it is preferable to do so ki-le'achar yad than by way of a non-Jew. As clarified above, however, this only applies in the case of a shinui which removes the action from the category of a melakha and redefines it as a non-melakha act. However, doing the act with a shinui that serves merely to exempt a person from liability might be regarded as a more serious infraction than amira le-akkum. It should be noted that, practically speaking, it is often very difficult to determine whether a particular shinui is merely a shinui that exempts a person from liability or ki-le'achar yad; in such a case, it is preferable to ask a non-Jew.
With respect to our original question regarding Shabbat desecration to prevent the suffering of an animal, Rav Yosef Karo (OC 305:20) states explicitly that amira le-akkum is permitted. The Magen Avraham notes there that if a non-Jew is unavailable, it may be done by a Jew. The implication is that if a non-Jew is available, it is preferable to use a non-Jew. It is not clear whether he means to say that it is always preferable to use a non-Jew, even if it is possible to perform the melakha in such a manner that puts it into the category of ki-le'achar yad; perhaps he is talking about a case where it is impossible to do the action with a shinui that removes it from the category of melakha, and only then it is preferable to do it by way of a non-Jew than to perform the rabbinic prohibition in the usual manner.
ASKING A MINOR TO PERFORM A MELAKHA
Asking a minor to perform a melakha (amira le-katan) must be examined in the same way as amira le-akkum, but in the confines of this framework, we cannot undertake a comprehensive analysis of the issue. I wish to briefly note, however, that a long discussion in Yevamot (114a) – regarding whether or not the court is obligated to stop a minor who wishes to eat non-kosher meat – deals with the responsibility of adults for the transgressions of a minor. That passage opens with the case where someone wants to ask a minor to carry a key on Shabbat. Two issues come up in this framework: first, the general responsibility of the adult towards the minor; second, the obligation specific to Shabbat of imposing rest upon one's children. After all, according to the plain sense of the verse in the Ten Commandments, "You shall not do any work: neither you, nor your son, nor your daughter" (Shemot 20:16), implies that a person is commanded to see that his son and daughter rest, and presumably the reference is to minor children, for adults would already fall into the category of "you" (as is argued by Rashi, ad loc.). We cannot go into all the details of the passage, but we may say that as a rule, using a minor to perform a melakha is not a favored solution, especially if the minor is a family member. Indeed, as is explicitly stated in the Gemara cited above (Shabbat 153a), it is preferable to use a non-Jew rather than a minor.
Here too, however, there is room to distinguish between minors of different ages. Some minors are aware of their actions, but exempt from liability; there are other minors whose actions are meaningless. For example, a newborn who turns on a light on Shabbat falls into the category of mitasek, whereas a minor on the verge of his bar mitzva is regarded as having performed a melakha but being exempt from liability. If the minor is regarded as a mitasek, his action being void of all awareness and intention, there is no desecration of Shabbat, and it might be better to use him than to use a non-Jew. But if the minor understands the idea of Shabbat and what is expected of him, asking him to perform a melakha should be worse than asking a non-Jew to do it.
In light of this, that a minor who is aware of his actions is worse than a non-Jew, there is room to argue that even if we prefer asking a non-Jew to performing a melakha in the manner of ki-le'achar yad, we would not prefer a minor, as a minor's resting from work has meaning, whereas a non-Jew's resting from work has no meaning whatsoever. This, however, depends on the type of ki-le'achar yad. Furthermore, there is another reason to prefer ki-le'achar yad over a minor: the educational consideration (chinukh). From a certain age, a child begins to understand what is going on around him or her and the meaning of Shabbat. If we ask him to desecrate Shabbat (even for a good cause), he is liable to come to one of two possible conclusions: either there is no significance to Shabbat or there is no significance to minors. Under no circumstances do we want him or her to reach one of these conclusions; therefore, one should exercise extreme caution with respect to asking a minor to perform a melakha on Shabbat.
Unfortunately, as is the case with many other issues relating to Shabbat, this question is hardly discussed at all in the early sources. To the best of my knowledge, except for the Ran cited above, none of the classical halakhic authorities set the various allowances against each other; thus, there is no unequivocal resolution of the matter in the Shulchan Arukh or its commentaries. Among the contemporary decisors, we can discern different approaches. Rav Yehoshua Neuwirth, in his Shemirat Shabbat Ke-hilkhatah (Chap. 18, Note 218) is inclined to rule that amira le-akkum is less serious than ki-le'achar yad. In contrast, Rav Sha'ul Yisraeli, in his Chavvot Binyamin (No. 27), disagrees and says that ki-le'achar yad is preferable to amira le-akkum. The common denominator in these two rulings is seeing ki-le'achar yad as a single category. In light of what we stated above, however, there is room to distinguish between different levels of shinui. If the alternative is a simple shinui, e.g., writing with the left hand, using a non-Jew is to be preferred whenever possible; if the alternative is performing the action ki-le'achar yad, which removes the act from the category of melakha, this is to be preferred over amira le-akkum.
As for a minor, each case must be judged in accordance with the level of the child's understanding. Owing to the educational consideration, preference should be given to performing the melakha ki-le'achar yad, unless we are talking about a minor who does not yet understand the idea of Shabbat. Were it not for this consideration, then a shinui which removes the action from the category of melakha is preferable to amira le-katan, unless we are talking about a young child whose actions are regarded as those of a mitasek, in which case it is better to perform the melakha by way of the minor than with a shinui. If it is possible to choose between amira le-akkum and amira le-katan, the Gemara explicitly states that amira le-akkum is to be given preference.
* The shiur was given by Rav Mosheh Lichtenstein on Shabbat Parashat Beha'alotekha, and it was summarized by Barukh Weintraub. [Rav Lichtenstein's comment: Many thanks to Rav Yo'el Amital who shared with me a great amount of material that he had collected on this issue.]
 See Bei'ur Ha-Gra (ad loc.) who understands that the "yesh omerim" cited there disputes the allowance in principle and not merely for the reason of appearances (marit ayin).
 Six or seven, each child according to his development. (A similar phenomenon is found in Gittin 59a.)
 The very fact that his ruling is buried at the end of a footnote in the middle of the book and that the problem is not presented as an issue worthy of independent discussion illustrates well the state of the rulings on this issue, despite its importance and frequency.
 In Halakha U-rfu'a, Vol. III, pp. 136-138, Rav Z. N. Golberg reaches similar conclusions with respect to preferring doing the melakha ki-le'achar yad over asking a minor to do it, and he also distinguishes between different types of minors. Even though others disagree with him (see Vol. V, a series of articles on the issue), his arguments seem to be more convincing.