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Hekhsher Tzedek’s Law Problem

The Jewish community has been roiled by the continuing charges against kosher meat giant Agriprocessors. Kosher consumers are angry that practices which are supposed to bring credit to Jewish tradition are instead sullying its image. But Jews have been divided on how to respond.

The Conservative movement has proposed a new kind of certification, called a Hekhsher Tzedek. It would certify that a food company adheres to a specific set of standards — developed by those behind this initiative — in providing wages, working conditions and vacation time to its employees, among other things.

We certainly agree that working conditions and the like are Jewish concerns. This is consistent with the message of the great biblical prophets who underscored our responsibilities to the downtrodden and disadvantaged. Many tiers of responsibility in the workplace are firmly ensconced in Jewish law.

Nevertheless, we reject the Hekhsher Tzedek proposal. It is arbitrary, impractical and, ultimately, threatens to undermine the standing of Jewish law.

Kosher consumers are not upset that Agriprocessors has failed to catapult poor workers into middle-class comfort. They are troubled that the company may have broken the law. We agree with the Union of Orthodox Jewish Congregations, the rabbinic supervisors of Agriprocessors, who refused to convict in the court of public opinion, but made it quite clear that if the allegations stand up to scrutiny in court, they will not be able to continue their association with those who violate legal norms. If push comes to shove, kosher consumers — who already pay a premium to observe the law — will put principle before convenience, even if it means curtailing their consumption of meat.

It is the government that is best suited to uncover and prosecute legal impropriety. Rabbis are ill-prepared to ferret out malfeasance. Rabbis lack the power and authority to subpoena witnesses and punish perjury. They can only conduct private investigations, which are very expensive if done properly and very inaccurate if done cheaply. 

In seeking to set up standards that go beyond the law, reasonable people will always disagree. This is one reason why the law remains the best touchstone of what society agrees is proper.

Any guidelines that do not organically grow out of Jewish ethical expectations are by nature arbitrary. What number of vacation days is ethical? Why should an industry average of wages or benefits serve as a guide to ethical conduct? Rabbis specialize in making decisions about law, not in creating new systems of rules to enforce ethical principles. Their suggestions about going beyond the letter of the law will be no more compelling than other suggestions.

The organizers of Hekhsher Tzedek do not seem to be aware of this. The subtitle on an official companion paper to the Hekhsher Tzedek policy recommendations reads “al pi din,” or “according to the law.” But the Hekhsher Tzedek proposals are not law — not secular law, and not Jewish law. They also misread rabbinic texts. For example, they cite a number of talmudic and rabbinic sources to suggest that Jewish law requires providing benefits to workers according to what is customary in a given locale, failing to note that this is only true in the absence of an articulated understanding between employer and employee. It seems that those behind Hekhsher Tzedek have interpreted Jewish law in such a way so as to make it a servant to their ethical preconceptions.

And why does Hekhsher Tzedek focus only on the kosher food industry? Ethical considerations should be applied to all industries, not just kosher food. Should good Jews use attorneys who drive large gas-guzzling SUVs? Should they shop at the warehouse store that gets most of its goods from a country that abuses millions of its citizens? Should they purchase music that glorifies drug use or objectifies women?

There is a historically established danger in singling out the kosher industry for special scrutiny and standards. Many — especially those who do not observe the laws of kashrut — feel that the real worth of Jewish dietary laws is in the ethical values they represent, which they contrast with adherence to halachic minutiae. Indeed, the Hekhsher Tzedek initiative’s Web site prominently features a quote informing us: “If we don’t connect [kashrut] to the world and the values we hold, then we fail to take kashrut at its core level.”

This sort of thinking is hardly anything new. For centuries, Jews were urged to abandon Jewish practice by arguments that the ethic behind the law was far more important than, and indeed the only real purpose of, the law itself. Some understand Paul’s argument for Christians abandoning the kosher laws as follows: Don’t worry about what enters your mouth — concern yourself with what comes out.

Hekhsher Tzedek’s narrow focus on kosher food seems to indulge the notion that Jewish law is not sufficient, and indeed not as important as ethics. Judaism, however, has wisely chosen to assert the value of the law in and of itself. The law provides a common basis of conduct for all people, including those who will disagree on what is ethical.

Jews should make sure that the laws of the land reflect ethical concerns, and that the companies they rely on scrupulously obey those laws. But they should resist measures that downplay the value of the kosher laws themselves in pursuit of a higher morality. We see a real danger that Hekhsher Tzedek will unwittingly diminish both.

Rabbi Michael Broyde is a professor of law at Emory University and the founding rabbi of the Young Israel congregation in Atlanta. Rabbi Yitzchok Adlerstein is the Sydney M. Irmas Adjunct Chair in Jewish Law and Ethics at Loyola Law School and founding editor of the blog Cross-Currents.

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