Wednesday, October 08, 2008

Hekhsher Tzedek Revisited

R. Dr. Aaron Levine, in this week's The Jewish Press (link). See also this post with his previous article on the subject.

The innovative idea for kashrut certification called Hekhsher Tzedek is now making inroads in the Jewish world and gaining the attention of the secular press as well. In a nutshell, Hekhsher Tzedek calls for a supplemental certification of a food company beyond compliance with the laws of kashrut to include certification that it conducts its business ethically.

On a purely conceptual level, integrating the ethical with the ritual is a praiseworthy endeavor rooted in Torah values. Many authoritative hashkafic sources support this notion. Take for instance the powerful imagery Mechilta provides us with respect to the two tablets that contained the Ten Commandments. Etched in the right-hand column were the five precepts relating to our duties to God while the left-hand column presented the precepts relating to our duties vis-a-vis our fellow man.

Click here to read moreWe of course read these columns vertically. Mechilta broadens our spiritual horizon by urging us to think horizontally by pairing each commandment in the right column with the corresponding commandment in the left column. Thus, for example, when we pair the first Commandment with the sixth Commandment, we learn that if we really believe in God we should see the Divine image in our fellow to the extent that we will never come to deface that image by attacking him.

A further argument for expanding the purview of kashrut certification to the ethical realm is that kashrut organizations are already involved in making judgments about the fitness of a food company beyond the kashrut of its food. Consider that major kashrut organizations routinely refuse to certify the kashrut of hotels and restaurants if the entertainment these establishments provide fails to meet halachic standards.

If the ritual ambiance must be kosher, the ethical domain should not be ignored. The notion that our role in the ethical realm is merely to lobby the government to more vigorously enforce the prohibited conduct it has in place for the firm vis-a vis its stakeholders should therefore be rejected. Instead, we should take an active role in ensuring that these regulations are understood and taken seriously.

In expanding its scope to the ethical realm, the kashrut certifier must be careful not to promise more than it can deliver. It must reject the role of making judgments on whether the conduct of the firm vis-a-vis its various stakeholders meets the standard of tzedek (justice). This is so because an assessment of tzedek will always involve three parties: the firm, the particular stakeholder, and third parties. Rabbis have expertise in kashrut but no professional training in recognizing violations of ethical standards in the workplace, especially if these norms are embodied in government regulations.

And because rabbis have no subpoena power, they cannot adequately investigate complaints and apparent violations. In the hands of a kashrut certifier or a non-professional volunteer group, the judgment of tzedek in the workplace is perforce precarious and will often be an intractable and elusive enterprise. Accordingly, in taking on the ethical realm, the direct role for the kashrut supervisor should be very limited. It should consist only of a duty to report to management suspicious conduct that happens to come to his attention.

In addition, the rabbi should be required to follow up with management as to how it is addressing the problem. Stonewalling on the part of the company will require the certifying agency to turn the matter over to the appropriate government agency for investigation.

The challenge in combining the ethical with the ritual is therefore to achieve integration in a format that is consistent with halacha and at the same time is workable and cost-effective. Hekhsher Tzedek, in the format proposed by its originator, Rabbi Morris Allen, falls short of this criterion. Basically, it takes on a judicial role. And its formulation, as I argued in a previous Jewish Press op-ed article ("Hekhsher Tzedek: Theory And Practice," Aug. 29), can generate many unintended negative side-effects that are exacerbated because the formulation overreaches by calling for duties beyond what secular law and halacha, strictly speaking, mandate and, in certain aspects, beyond what halacha would recommend even on a supererogatory level.

With the aim of integrating ethical and ritual norms among food producers, consider the following:

Let kashrut organizations incorporate in their contracts with food companies a clause that requires the company to be fully compliant with the dina d'malchuta (government laws and regulations) that apply to their company. These laws cover such matters as minimum wage, prohibition of child labor, illegal immigrants, safety rules, animal welfare and anti-pollution laws.

With respect to these rules, the company will be expected to adopt a proactive policy. As a practical matter, this means the company must affirm in writing that designated personnel are knowledgeable about and conversant in the specifics of dina d'malchuta as they pertain to its business. In addition, the company should be required to submit in writing the specific measures it has implemented to prevent violations of secular law from occurring.

The contract should also specify that if the company is found to be in violation of dina d'malchuta, the kashrut certifier will compare the procedures and preventive measures the company claimed were in operation to the facts as reported by the government. Depending on both the severity of the company's offense and what the comparison shows, the company may lose its kashrut certification.

The halachic basis for insisting that a company maintain a proactive policy with respect to dina d'malchuta is that only by maintaining such a policy does the company demonstrate its seriousness to be bound by these standards. Without instituting preventive measures and concrete procedures, the company's attitude toward dina d'malchuta is merely reactive. The worst manifestation of a reactive policy is the attitude that we need not educate ourselves about what dina d'malchuta requires; if the government catches violations, we'll deal with them after the fact by paying fines and implementing the remedies the government demands.

Recall the infamous 1971 Ford Pinto case. Because of its accelerated production schedule, the Pinto was not tested for rear-end impact until after production. The test showed that a rear-end collision would rupture the Pinto's fuel system extremely easily.

Despite that finding, cost-benefit analysis dictated policy for the company. Instead of warning the public up front of the danger or even giving customers the option of having a baffle installed between the bumper and the gas tank (for $6.65) that would have made the Pinto as safe as comparable vehicles, the company chose to disclose nothing and face the consequence of lawsuits. The result of this cost-benefit decision was disastrous. Between 1976 and 1977 alone, Pintos had 13 fiery rear-end collisions - more than double the number for comparable-size cars.

The value added by inducing a food company to adopt a proactive policy with respect to dina d'malchuta is that this initiative will force the company not to take a cavalier attitude toward governmental regulations.

To illustrate, suppose government inspectors find that a meatpacking plant was dismembering animals right after shechita while the animals were still conscious. Alternatively, suppose government inspectors discover a big hole in the work area of the plant, which represents a clear-cut hazard for the workers. The company will not be able to escape kashrut de-certification by quickly remedying the violations. Why? Given that these violations seriously violate both dina d'malchuta and halacha, they clearly expose as lies the company's prior affirmation that it was proactive with respective to dina d'malchuta.

Accordingly, the company would lose its certification based on a "demonstrated ignorance and a cavalier treatment" of dina d'malchuta. Insistence on a proactive policy with respect to dina d'malchuta therefore generates a significant deterrent against adopting a reactive policy toward these regulations.

Requiring food companies to adopt a proactive policy with respect to dina d'malchuta represents a unique opportunity to integrate the ritual with the ethical. This integration will be a welcome advance in elevating the moral climate of society.

Rabbi Aaron Levine is the Samson and Halina Bitensky Professor of Economics at Yeshiva University and rav of the Young Israel of Avenue J in Brooklyn. He recently presented the basic ideas in this article to a discussion group of the Rabbinical Council of America and acknowledges the feedback of his colleagues.

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