[Avodah] Asei doche lav and mitzvah haba'ah ba'avererah

[Michael Makovi]

>From the controversy about non-yosher kosher:

I had been said that the non-yosher kosher meat allowing the company
to do tzedaka and chesed, at the cost of mistreatment of workers, was
a mitzvah haba'ah ba'averah.

> : No, that's  not a good argument.  The credit-cancelling effect of mitzvah
> : haba'ah
> : ba'aveirah is fairly narrow.  The same act that is the mitzva act, is also
> : in and of
> : itself an aveirah.  One canonical case is the stolen lulav.  Reuven picks up
> : Shimon's arba minim without asking, and thereby does the mitzvah of waving
> : the lulav, in the same act which is itself taking-without-asking, i.e.
> : theft.
> :
> : R' Jonathan Baker

> If they're the same act, it would be asei docheh lav. Mitzvah haba'ah
> ba'aveirah is where the avirah is a "necessary cause" for this qiyum
> hamitzvah -- the mitzvah wouldn't happen without it.
>
> Thus, eating meat at the Shabbos table, or providing meat for the masses
> at affordable prices, or being a ba'al tzedaqah at money made selling
> such meat did depend on how the workers were treated at the packing
> plant. It may qualify.
>
> R' Micha

Indeed. With R' Jonathan's example of the lulav, the theft is NOT the
same act as the shaking; Shimon steals it now and takes it to shul
tomorrow morning. But as per R' Micha, the theft was indispensable to
the shaking later on.

A question I've had, however: sometimes we have a question of two
mitzvot conflicting. What came to my mind was R' Shlomo Carlebach
shaking hands and hugging for the sake of kiruv. Assuming he is
correct that his kiruv would have failed were it not for this, and
assuming he was correct in what he did (personally, I imagine his
mitzvah is much greater in magnitude than his sin, and AFAIK the
tradeoff WAS worth it), why is it not a mitzvah haba'ah ba'averah?

Similarly, today a friend had a question: a (male) friend of hers had
just broken up with his girlfriend, and he was somewhat inconsolable.
He indicated he needed a hug, and she replied that she is shomer
negiah, but he insisted again. She in the end hugged him, but asked me
what I thought. I replied that if one views it as a case of mitzvah
(shomer negiah) versus averah (negiah), then obviously she did nothing
but a pure averah. But if one views it as one mitzvah (comforting the
sick, needy, distraught, pained, etc.) versus another mitzvah (shomer
negiah), it's suddenly not so clear-cut, and perhaps, based on his
level of neediness, there's a hava amina to permit what she did. But I
later wondered, wouldn't this be a mitzvah haba'ah ba'averah?

Where is the line between mitzvah haba'ah ba'averah, and simply
weighing two mitzvot against each other and trying to figure out which
takes precedence? It is perhaps that in the former, there is an
objective 100% mitzvah versus an objective 100% averah, while in the
latter, there are two mitzvot to be fulfilled, but only one
practically can be, and the averah is that either which way, there is
a mitzvah you are not fulfilling? I'm not sure.

Mikha'el Makovi