A Look at the Privatization of Kashrut and, Above All, at the Debate About It (Column 427)

In recent days, the kashrut reform of Minister Matan Kahana passed in the Knesset as part of the Arrangements Law. The Haredim and the national-Haredi (“hardal”) public are furious and explain that this is raising a hand against the Torah of Moses, Reformism, etc., etc.—which plainly shows that something was probably done here in the right direction. On the site here, too, the question was raised as to my view of this reform, and even though our Shatzal has already seasoned us all with a pinch of his learned arguments against the reform.

The law itself (see there p. 1165 and on) is long and convoluted, and it is phrased as a collection of amendments to the existing law (the Kashrut Fraud Law). It’s hard to get into its details, and I also lack practical experience that would allow me to examine whether the law, in its present form, will help improve kashrut and the kashrut system or not. One thing emerges clearly from reading the opinion pieces in the various directions: almost everyone speaking in this field has a stake in it, and many of the claims are not substantive. For example, the Haredim, who as is known always cling exclusively to the state kashrut of the Chief Rabbinate and keep away from private kashrut and privatization—God forbid—are crying out against the privatization and the kashrut disaster it will bring upon us (in general, lately the Haredim are truly concerned for the honor and status of the Chief Rabbinate. Footsteps of the Messiah). Suddenly it turns out that the kashrut of the Chief Rabbinate (a synonym for food that in a Haredi home one would not touch even with a ten-foot pole) is the paragon of virtues, and any deviation from it will lead to public eating of non-kosher food. Supporters of the reform also point to its economic and kashrut advantages (opening the market and breaking the Rabbinate’s monopoly), which doesn’t inspire much confidence in me (since it’s reasonable that at least some of the concerns have merit). Their arguments regarding the welcome (but insufficiently mortal) blow to the status of the Chief Rabbinate are, of course, correct, and need no embellishment.

The Principled Claim

To form a well-based position on the matter, one must know the field and its constraints, and of course go through the wording of the law in detail, hear critiques from all sides, and weigh them. That is hard and complicated work—but fortunately also unnecessary. As I will now explain, my main claim is a priori, and therefore it hardly requires establishing the facts and does not depend on them.

What most of the arguments have in common is that they deal with the level of kashrut and with the advantages and disadvantages of the reform on that axis. The discussion there is: Will the level of kashrut rise or fall? Will people stumble into eating forbidden foods or not? Will the wicked Reform movement gain a foothold in the State of Israel, God forbid? And of course: Are the Tzohar rabbis and all supporters of the reform Reform? And I haven’t even mentioned the chillul Hashem (desecration of God’s name) or kiddush Hashem (sanctification) that will result from the reform. I mean the claims that the reform will endear Judaism and halakha to the general public and lead to kiddush Hashem and more people eating kosher, or alternatively that it will make halakha hateful and bring about its complete collapse and a spiritual apocalypse.

In my eyes, all these claims are irrelevant to the discussion—neither those for nor those against. The debate is not taking place on the relevant plane at all. I support the reform even if it causes thousands of people to eat treif in broad daylight, lowers the level of kashrut to the depths of the Dead Sea, and inflicts a mortal blow on the status of halakha and Judaism in the eyes of the public. Even the welcome blow to the Chief Rabbinate—something that by itself justifies almost any outcome and any price—is not a central argument, though it is connected to my decisive reasoning. My main argument is that every citizen has the right to consume whatever kashrut he or she wants. If someone wishes to eat food according to the kashrut criteria of the Reform Chief Rabbi of Indonesia and Zimbabwe, or of the Dalai Lama’s adjutant (or the Dalai Such-and-Such), then if there is sufficient demand for such kashrut, it should be allowed. My claim is that there is no justification for a monopoly in any field unless there is a market failure that necessitates it—certainly when it comes to a monopoly whose chief aim is the imposition of values on a broad public that does not want them. The fact that this is a monopoly whose main interest is to reinforce the status of a corrupt and sclerotic body like the Chief Rabbinate (continued supply of positions and jobs for “our people”) of course strengthens my claim, but is not essential to it. It follows that the questions of whether the reform will improve or lower the level of kashrut, and whether it will lead to kiddush or chillul Hashem, are simply irrelevant.

The Ideal Model

To my judgment, the ideal model for the kashrut market in a democratic state is a completely open market. Whoever wants to take the name may come and take it. There should be kashrut by Christians, Hindus, Reform Jews, Tzohar, Haredim, the followers of the holy Baba Buba shlita, and anyone else you can imagine—except, of course, the Chief Rabbinate. That is the one body that should in no way be given authority to grant kashrut, since it is a state body and there is no reason for it to function as one of the agents in an open economic market. Needless to say, what I have described here is the mirror image of the current situation, in which only the Chief Rabbinate is authorized to grant kashrut (!!). Let that teach you how far the absurdity goes, and what all the kashrut warriors are defending.

Alongside this open and free market, as with any product that requires expertise and operates by complex criteria, there must be a regulatory body whose role is to ensure that each kashrut system provides what it says it provides. The regulator is not supposed to enter into the criteria themselves and determine what is called kosher and what is not. It is only supposed to ensure transparency and congruence between the product and the promises that accompany it. That’s all. Therefore, this body is certainly not supposed to be run by rabbis. It can consult rabbis as professionals to help check conformity to criteria, but there is no reason to entrust the decision itself to rabbis. As far as I’m concerned, it could be a retired judge or any other credible figure.

From there on, the market should operate freely. The Haredim and hardalniks will disparage everyone else—as is their holy custom—and each member of the public will be able to decide whether to believe them or not, and determine for himself the kashrut he desires, and Zion will be redeemed.

Will the reform improve the state of kashrut? Will it lower prices? Will it prevent people from stumbling into eating treif or not? Will it lead to kiddush or chillul Hashem? I have no idea, and that is also unimportant for the discussion. Personally, it matters to me that people eat kosher, but it matters equally that the decision be in their hands and not handed over to a state-appointed monopoly that enforces it upon them. The state is not supposed to be involved in the way a person chooses to live his life. Just as I would not want the state to force me to eat pork (even if there were a majority for it), so I also don’t want it to force me or others to eat kosher.

Of course, if and when this utopian situation prevails here (fear not—it won’t), I invite anyone who wishes to report whether there was a decline in the level of kashrut, whether there was chillul or kiddush Hashem, whether Tzohar are wicked/Reform/liars or not, and so on. This intellectual debate may well amuse various people, and there is no reason to prevent them from conducting it. A free country—did I mention?

A Few Additions of My Own

By the way, I certainly join the critique of the reform, since as I understand it, it did not actually open the market completely. I saw that a committee of three rabbis (one of whom serves or has served as a city rabbi) is still required to approve each kashrut body that will be authorized to grant certification. This means we will still get only very particular types of certifications, and the business will mostly be run by the same clique as before. Matan Kahana did not really open the market as one should have, and that is very unfortunate.

After a continuation to this kashrut reform that will bring it to fruition (and send the Chief Rabbinate to graze grass in the depths of the Dead Sea), I also expect the opening of the marriage and divorce market in the same way. I am inclined to think likewise even regarding the conversion market (although here it is a more sensitive and complex matter, since it also concerns others). In principle, everything should be open—but also completely transparent. I will add that, unlike the great majority of my colleagues who support the reform and oppose the Chief Rabbinate, I am entirely in favor of “black registries” in which the path of marriage and the personal status of every person are documented. In fact, I don’t think this should be recorded in a black registry but in a transparent one, or in the identity card, or in some other way such that the information is visible and known to anyone with a genuine interest in the matter.

A Note on My Fundamental Viewpoint: Normative Duality

I assume that people committed to halakha—especially those who don’t know my positions—will be surprised to read such an “heretical” text. How does a person committed to halakha allow himself to treat lightly the possibility that the multitudes of the House of Israel will eat non-kosher food? Regardless of whether this is indeed what is expected (I highly doubt it), I actually wrote that even if that is what will happen, I still support the reform. So the question in any case stands. I will explain this briefly here, since I have expanded on it elsewhere (see on this in Column 18, and in greater detail at the beginning of the third book in my trilogy).

My claim is that there is no problem with a person or group having full commitment to several normative systems in parallel—even ones that contradict each other. A person can be wholly loyal to halakha and at the same time loyal to liberal values, even where they clash with halakha. Moreover, when such a conflict exists, halakha does not necessarily prevail. In the third book (and briefly also in Column 15) I explained the logical and theological basis for this claim. Not only is there no contradiction to reason here; there is also no contradiction to commitment to the will of God. My claim there was that halakha is only one system of God’s will, and moral values are also God’s will (of a different kind). Therefore, a clash between morality and halakha is an internal conflict within God’s will and not a conflict between God’s will and external values. If liberal values are my moral conception, then, from my perspective, God wants them as well alongside His will expressed in halakha.

You may say that only a heretic like me would think so, and that I am in a minority view. I am not at all sure of that. It seems to me that most religious people are not interested in stoning Sabbath desecrators, flogging pork-eaters, blowing up all churches (even in a hypothetical situation in which our hand is strong), compelling the entire public to eat kosher and keep the Sabbath (including penal sanctions for offenders), etc., etc. When you ask people, many of them (the honest and straightforward among them) will admit that this is indeed their view, but they will explain it by saying that our hand is not strong, or that at present this would cause more harm than benefit. It is difficult for them to say—even to themselves—that they support going against halakha (which requires coercion and punishment). But in my opinion, these are rationalizations given after the fact. In truth, what motivates most people, as I estimate it, is a liberal conception according to which it is not morally proper to impose values on a person who does not believe in them, even if in my opinion he is mistaken. My claim is that a person committed to halakha can indeed oppose a “halakhic state” (at least in its fundamentalist sense; see Column 18).

A Few Examples: The Categorical Imperative

To sharpen this further, think of a situation in which, in Belgium, Jews are forced to desecrate the Sabbath, pray in a church, or eat pork or the Eucharistic bread. What would you say about that? Well, no need to go so far. What do you say about the ban on kosher slaughter that exists in many European countries? I won’t try to ask you about the burqa ban and the bans on building mosques that exist in some countries there, although my view of them is similar to the bans on kosher slaughter (on the contrary, the ban on kosher slaughter is, in my view, far more justified—there is at least concern there for animal suffering). And what about religious coercion in Iran or anti-religious coercion in the former USSR? Is it legitimate for any state to forbid us to marry according to the law of Moses and Israel? It was quite a while ago, but for some reason it seems to me that there was some criticism in the religious public of the Soviet policy toward Judaism. In short, I assume most of us will agree that all this is neither desirable nor proper. So why is it legitimate for us to forbid others in the State of Israel to marry (or eat) as they understand it? When a state imposes religious values on its citizens—even ones I myself believe in—the situation can deteriorate to places none of us would want to be. A democratic state should leave to its citizens the decision about how to live their lives, except in very exceptional cases.

It is important to clarify that my claim here is not merely an expression of fear. My problem is not only that if I impose on others, then when their hand is strong they will impose on me. That is certainly a problem, and I do not belittle it. But my essential problem with a policy of coercion is the categorical imperative, by which I examine my actions according to the criterion that I would want them to be a general law. If you like, it is also a corollary of Hillel the Elder’s rule: What is hateful to you, do not do to your fellow. I have pointed out more than once the mistake in understanding the categorical imperative as if it were a direct consequentialist argument (see, for example, Columns 122 and 334). The categorical imperative is not based on fear of others’ retribution (that if I steal, they will steal from me). It is a moral principle that says my action should be examined hypothetically: What would the situation be if everyone acted this way? I assume that none of us would want a state law that forces upon us a position that contradicts our values. Therefore, coercion is wrong even if, in the present case, it suits our own positions.

Counter-Arguments: Deafness to Comparisons

At this point the expected claims may arise: Well, but there is no comparing our coercion of others to coercion of us, for we are right. As is known, what we do was received directly from the mouth of the Almighty. And, with all due respect to the categorical imperative and Kant’s inventions, halakha explicitly says that people must be coerced to fulfill commandments, and therefore loyalty to halakha requires coercion (and hence whoever rejects coercion is not loyal to halakha). Our reason does not stand against a divine command. These arguments strike me as very strange, as I will now explain.

First, halakha—almost entirely—is a human creation by people like you and me. Sages throughout the generations interpreted the Torah and halakha and reached certain conclusions. I, and all of us, are meant to do the same. There is no “word of God” here in the sense of the source (only in the sense of sanctity and obligation).

Second, to my judgment the categorical imperative has halakhic standing (see the columns cited). Rabbi Unterman has an article in which he interprets the term “for the sake of the ways of peace” in a similar fashion (and derives conclusions from it, such as the duty to save a non-Jew on the Sabbath and the prohibition on destroying churches in the State of Israel—seemingly in direct contradiction to explicit halakhic directives). We must remember that almost every group or state among those I described above (Iran, the USSR) thinks it is right and others are wrong. So why should we be permitted to coerce, and when others do this to us it is outrageous?!

We have a problematic tendency to ignore such comparisons. Thus, for example, we are very angry at countries that did not bomb the extermination camps in the Holocaust, but today, when we have an army, we do not entertain the thought of carrying out military actions to save populations in distress in various places around the world (to say nothing of supplying weapons and maintaining ties with regimes that create those distresses). We are very angry at countries that do not allow Jews freedom of worship (as the State of Israel on the Temple Mount)—and rightly so—but we grant ourselves the right to deny others freedom of worship or simply freedom. We forbid ourselves and our children to read “heretical” literature that argues against Jewish faith, while it is obvious to us that a person raised in a secular home is at fault, for he is required to inquire and reach the correct conclusions (=ours). One could go on at length with more examples, but the principle is clear. Each of us understands that value-or religious-coercion is illegitimate, and therefore it is wrong to ignore this when we ourselves do it to others.

So what do we do with halakha? It is hard to deny that halakha obligates coercion. On this I will say a few things: First, it is not true that it obligates coercion of people who do not think so. In my view, halakhic coercion addresses only deliberate offenders who know their Master and rebel against Him, and not those who think differently. Second, even if this were indeed the halakha, we should refuse it (conscientious objection) and say: “Had God told it to me through Joshua ben Nun, I would not have obeyed.” A person must understand how and where to implement halakhic directives. In the circumstances prevailing in our world and society today, coercion has no place. I am convinced everyone understands this, including the great majority of decisors, but it is hard to admit it; therefore they hang on technical arguments, such as “our hand is not strong” or “for the ways of peace” (in the accepted interpretation, not Rabbi Unterman’s). But, as I said, this is rationalization and post-factum justification. It is clear to everyone that even if we had no such justification, there is no place to apply these halakhic directives in today’s reality. Call it “Reform”—to your health. I assume you already know I am not afraid of labels and classifications.

Bottom line: Try to answer honestly the following question. Suppose our hand were strong and the nations of the world allowed us to do whatever we wished; would you support an “Iranian” state that coerces Sabbath observance, kosher eating, religious worship, and the like? I believe that in a situation where this dilemma would be realistic and placed before us for a practical decision (and not only an academic question), most of the religious and Haredi public (and most rabbis, too) would not support it. What explanations would we get? How would people reconcile that position with commitment to halakha? “Our hand is strong,” etc., etc. But that already depends on the speaker’s self-awareness and honesty—and no less on his logical-philosophical-exegetical skill.

So much for my main points. I now wish to append a few remarks on two texts that deal with this reform. I chose two texts that were sent to me in the past; of course there are many others. These are relatively substantive texts (unlike many others), and both come from people with a religious-Zionist stance—and precisely because of that I chose them, to sharpen and clarify my principled position.

Rabbi Yoel Bin-Nun

Rabbi Yoel, as is his way, says the opposite of everyone. Not only does he support the kashrut reform, but in his view it is in the Chief Rabbinate’s own interest, and it will improve the level of kashrut among the broader public. I will not address here his stringency to eat only under the supervision of the Chief Rabbinate and not under the various “badatzim” (independent ultra-Orthodox kashrut courts). (I could perhaps agree with that if, like him, I viewed the Chief Rabbinate positively; then I could even enlist the categorical imperative.) I will add that, contrary to him, I see nothing wrong with a rabbi appointed over a kashrut system not eating the products it supervises. On the contrary, Rabbi Yoel’s proposal to arrange kashrut with a hierarchical ranking of levels (different numbers of stars) reflects exactly that conception. The rabbi supervises according to the level dictated by the Rabbinate (one star), but he himself wishes to eat food at a higher kashrut level (two stars). What’s wrong with that? I hope you will also allow me to skip over the “deep” explanation he offers for the stewardess’s kashrut; I will merely permit myself to note that my amazement at that explanation is somewhat less than what he described in his words (I also wonder which yeshiva the supervisor who traveled with him studied in, that he had never heard anything so deep in his life).

My main remark on his words is that he essentially recommends the reform because it will improve the state of kashrut and prevent many from eating non-kosher food. In my view, as noted, that is an irrelevant argument. The considerations of chillul Hashem and future kosher eating, even if correct (and I am far from sure of that), are not relevant to the discussion. A democratic state is not meant to act to prevent its citizens from eating non-kosher food. Its sole function in this sphere is to allow every citizen to live as he understands, as much as possible without harming others. All the rest is a matter for discussion and decisions among the citizens themselves.

However, in principle, what he says in his bottom line accords with me. He essentially proposes that the Chief Rabbinate be a regulator, not one of the agents operating on the ground. That is entirely parallel to the model I described above. His proposal that there be different kashrut “stars” expressing different levels is also acceptable to me. Yet I must note that even under the current situation there are stars ranking the level of kashrut. The distinction between “mehadrin” kashrut and regular kashrut already exists today in the Rabbinate. But contrary to Rabbi Yoel’s words, in my view there should be many stars and not just two—and, more important, it should not be the Rabbinate that determines them but the kashrut bodies themselves. In addition, there should not be a ranking of kashrut levels at all—and certainly not one determined by the Rabbinate.

In principle, at least from the state’s perspective, these are different kinds of kashrut and not necessarily different levels. Each person or group will be able to set for themselves a ranking and hierarchy of kashrut levels as they understand them. Take, for example, the “mehadrin” kashrut during the sabbatical year (shemita) practiced among the Haredim. To avoid the prohibition of “lo techonem” in the sale of land to a non-Jew (heter mechira), they scrupulously consolidate the hold of our cousins on the land of Israel by purchasing their produce instead of Jewish produce. It is hard not to be impressed by this splendid halakhic and logical consideration. That is what they call “mehadrin shemita.” Even if you are impressed by the magnificent logic, I assume that at least you can understand that I do not see such kashrut as a higher level (more stars) than the heter mechira. The same goes for “otzar beit din,” Haredi or not; opinions are divided as to whether it is preferable to the heter mechira or not, and the determination of hierarchy is not supposed to be made by the Rabbinate, nor by any other regulator. Assigning different kashrut grades is possible only when the criteria are agreed upon.

In short, as far as I am concerned, let there be as many stars in the kashrut “hierarchy” as the sand on the seashore, so long as the consumer knows what each star means, and so long as the number of stars does not express a ranking of better or worse kashrut. The regulator is supposed only to supervise credibility and ensure transparency, not to set criteria and rank kashrut bodies.

Kosharot

Another article that was sent to me quite a while ago was published by the “Kosharot” organization. It was published in the propaganda pamphlet “Olam Katan,” which is very dear to me indeed—and that already says something about its content and thrust. But, as noted, our concern here is a substantive examination of the arguments themselves.

Already in the opening paragraph the author, Rabbi Moshe Katz, presents the framework of the discussion: The question is whether such a reform will improve the kashrut system or not. As noted, for me this starting point already renders the discussion unnecessary. That is not supposed to be the goal of the reform, and that is not how it should be assessed. It seems the author takes the opportunity to settle accounts with Tzohar kashrut and chooses it as an example from which to learn about the flaws of a policy of privatized kashrut. He compares the criteria they published with their implementation on the ground. He points to several cases in which their own promises and criteria were not upheld. True, he concludes from this that their kashrut level is low—a conclusion that depends on one’s outlook, of course. But the claim that they do not meet their own criteria is substantive and certainly worth checking and discussing.

I do not have the tools to do that, and therefore I will again relate to his words in general, particularly to their logic. First, I assume Tzohar’s criteria were composed on the assumption that they would be allowed to operate freely on the ground. When the Rabbinate narrows their steps and exploits the state-given monopoly to pester and obstruct them (as is its way always), I am not very surprised that they don’t quite manage to meet their criteria (mainly those that concern competition with the Rabbinate).

Second, his words imply that the Rabbinate is the epitome of perfection—i.e., that it has no cases in which flaws are found in its supervision. Reading this, I did not know whether to laugh or to cry. The small number of cases he brings regarding Tzohar’s supervision is a bad joke next to the hundreds of hair-raising stories I have heard in Bnei Brak (and not only there) about the supervision of the Chief Rabbinate, and no less about the vile and corrupt way the Rabbinate handles failures even when they are discovered—and even when they are publicized.

Third, even if Tzohar’s kashrut organization is failing and causes others to fail, why does that say anything general about privatization? Does the existence of one failing company justify preventing us from opening the market to private companies altogether? This is a well-known communist type of argument—but a failing one. So shut Tzohar down, and that’s that. Why, because of them, do you prevent me from opening a kashrut organization that is stricter than a “badatz” (pardon me—even stricter than the Rabbinate)?

Above all, the logic of his argument fails at its foundation. If and when there is a reform that brings about an orderly privatization of kashrut, one of its main components is the establishment of effective regulation whose chief concern is oversight of these bodies, particularly that they live up to their own promises and criteria. The regulator is responsible for the transparency of the criteria and for their implementation. That is precisely how one should prevent the failings he describes. Therefore, his arguments are arguments for the reform, not against it. Incidentally, as I already wrote, the same failings (and likely far more) exist in the Rabbinate’s own supervision. When it becomes a regulator—or if they will be wise enough to appoint a different regulator (which of course makes much more sense, and therefore has no chance of actually happening)—its own failings will be prevented thanks to that regulation. The reform is supposed to improve also, and perhaps mainly, the Rabbinate’s supervision (even if it remains an active agent on the ground under another regulator).

In conclusion, this text contains a set of tendentious arguments that start from a mistaken premise, employ examples whose representativeness I do not know (perhaps they are), without any comparison to the competing system (which is likely far worse), and with arguments drawn from a single example from which he somehow infers a general conclusion—whereas even with respect to that very example, the conclusion fails.

It seems, however, that Matan Kahana’s reform does not actually do all this—thanks, among other things, to the obstacles placed in its path by those Haredi and hardal bodies (who are very concerned for kashrut, of course). Beyond that, it seems to me that even a perfect reform will not succeed in correcting the failings of the Chief Rabbinate. It has already been proven more than once that its sclerotic systems have no remedy. It has no guard but a knife, and its shattering—that is its purification.