IJII

In my naivete, I have only recently become aware that the Israeli Rabbanut offers hashgahat kashrut (kosher certification) only for those establishments which are closed on Shabbat. Any establishment which is open for Shabbat will be denied supervision, no matter how kosher their food may in fact be.
This policy is based on the halakha that one may not benefit from forbidden labor that was performed on Shabbat. Therefore, the Rabbanut denies kosher supervision to establishments open on Shabbat, since any food cooked on Shabbat is forbidden according to hilkhot shabbat (although not hilkhot kashrut). Additionally, a hekhsher, if present, is assumed to condone the Shabbat violation.
Such a policy is, I believe, unconscionable. First, who is forcing the Orthodox Jews to eat at the establishment on Shabbat? If the food cooked is forbidden on Shabbat due to hilkhot shabbat, so let the Orthodox Jews avoid the establishment on Shabbat, and dine there only on weekdays when they are sure that the food they are being served was not cooked on Shabbat!
Moreover, this policy unfortunately begrudges the non-observant populace of whatever mitzvot they may consider doing. If supervision is denied, then the establishment will likely reason that if they are not kosher anyway, they may as well serve truly non-kosher food. On the other hand, if they are offered supervision, then they may strongly consider becoming truly kosher, even if only for the decidedly not lishma reason of increasing business. But a mitzvah is a mitzvah, and we should not deny non-observant Jews an incentive to become more observant in any way they may, even if the motive be ulterior.
When I discussed this issue with a friend, he said that the hekhsher on restaurants is not done for the good of the non-observant restaurateurs but rather, for the good of the observant clientèle; therefore, there is no sense - according to him - in our seeking to encourage kashrut observance of non-observant restaurateurs, for the hekhsher is not done for their benefit in the first place. This view, I cannot understand. If a non-Jew wished to get his restaurant or product certified as kosher, then we might argue in this way, but we cannot possibly say this of a Jewish - albeit non-observant - restaurateur. Rather, we should seek to encourage kashrut supervision of even non-observant restaurateurs' venues. Whether we shall encourage by appealing to Jewish tradition and spirituality, or by appealing to the business they will gain, either way, it is our duty to so encourage. And if they will remain open on Shabbat, so be it; keeping one mitzvah and not another is better than keeping neither mitzvot.
In his Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, Rabbi Marc Angel recounts that Rabbi Uziel, following his giving a speech in promotion of Shabbat observance, prepared to board a taxicab. In those days, gas rationing meant that every taxi driver had his own particular day off, with each driver's particular day marked on his window. This particular cab which Rabbi Uziel was boarding had a particular weekday - maybe Monday or Wednesday or some such - marked on his cab as his day off, meaning that he did drive on Shabbat. Rabbi Uziel was questioned: he had just promoted Shabbat observance, and now he would take a Shabbat-violator's taxi??!! Rabbi Uziel replied, "I don't boycott any Jew and deprive him of his livelihood just because he violates Shabbat". Rabbi Uziel would take any driver's taxi, regardless of his personal Shabbat observance. We love every Jew, and so we wish for them all to be Shabbat observers; but on the other hand, we love every Jew, and do not wish to deny them livelihood nor cause them embarrassment, even if some of them violate Shabbat. In the case of kashrut supervision, there is the further consideration that granting supervision, irrespective of Shabbat violation, will serve as an incentive for Shabbat violators to at least keep one mitzvah, namely kashrut.
Many have been perplexed by the statement from the Gemara which we read before every chapter of Pirkei Avot, "Kol yisrael yesh lahem helek l'olam haba", "Every Jew has a portion in the World-to-Come...". Do not "the righteous of all nations have a portion in the World-to-Come"? What, then, is the hiddush (novelty) in saying that all Jews (with the exception of certain heretics and sinners) have such a portion, when righteous gentiles as well (with similar exceptions) have such a portion? This difficulty is beautifully solved by Rabbi Samson Raphael Hirsch in his commentary on this passage: he says that "Kol yisrael", "All of Israel" is said not in contradistinction to non-Jews, but rather, in contradistinction to those Jews who reject their Jewishness, and spurn the title of "Jew". In other words, gentiles are beyond the purview of this statement; obviously, gentiles do have a portion in the World-to-Come like and alongside Jews, but our present concern is not with Jews versus gentiles, but rather with self-identifying Jews versus non-identifying Jew. I seem to recall that Rev. Abraham Cohen's Everyman's Talmud interprets similarly. According to this, there is tremendous value in identifying as a Jew; even if one is not observant; anything one does to retain his identity as a proud and consciously Jewish Jew is something to be valued. Can we possibly begrudge any Jew an extra mitzvah, even one done for materialistic motives? How can we deny kosher certification to Shabbat-violating restaurants?

II.

I do not condone the approach taken by Conservative Judaism to driving cars on Shabbat. Halakhically, their reasoning is obviously fallacious; we cannot build the Mishkan on Shabbat, but we can drive to synagogue on Shabbat??!! Moreover, the Conservative - so far as I know - made no effort to convince their congregants to relocate themselves to live within walking distance of a synagogue, or to found smaller neighborhood minyanim, or to become even generally Shabbat observant. They ignored these proper responses and proceeded immediately to a heter on driving on Shabbat. In fact, the congregants should have been told to stay home and observe Shabbat with their family, and remain Jewish and observant even without ever attending synagogue.
But now that the erroneous ruling has been made, I am willing to concede that perhaps, based on what we saw from Rabbi Hirsch and Rev. Cohen above on the value of Jewish identity, that for an individual Conservative Jew, if his Jewish identity truly does depend on his going to synagogue on Shabbat via car, it is better for him to violate Shabbat and remain a Jew, than it is for him to stay home and assimilate. Similarly, if a person can either assimilate into non-Jewishness, or keep kosher by violating Shabbat, it is surely better for him to at least keep kashrut, one mitzvah, even at the cost of another, viz. Shabbat. (This is assuming that prior to keeping kashrut, one was keeping Shabbat, and keeping kashrut now requires a newfound violation of Shabbat. In other words, Shabbat and kashrut are mutually exclusive; this is not a likely scenario, but let us assume it for now, in order to make an a fortiori.)
For one, this situation would be an "eit la'asot lashem", i.e. abrogating one law for the sake of saving another law; one should violate Shabbat in order to save his overall Jewish identity, if this is necessary. The Gemara tells us to save a person's life on Shabbat, by violating Shabbat, in order that he keep many Shabbatot in the future. Following similar logic, we should surely have him violate his own Shabbat himself in order that he keep many mitzvot in general. (I said "The Gemara tells us save a person's life on Shabbat..." I have discovered many sources applying this to Jews and non-Jews alike.
Moreover, we should realize that even though halakhically Shabbat is more severe and imperative than kashrut, nevertheless, many laypeople do not realize this. There are many who would never dare consume pork, but who nevertheless violate Shabbat without compunction. Professor Zvi Zohar, in his lecture, "The Role of Values and Outcome in the Halakhic Process: The Sephardic Approach" makes this point. Professor Zohar discusses an actual halakhic situation which faced Rabbi Joseph Messas in Algeria, She'elot uTeshuvot Mayyim Hayyim, vol. 1, #143, in which the populace of his town strictly kept kosher, but did not observe the Shabbat. The butchers even did not observe Shabbat, even as they did observe kashrut, and Rabbi Messas had to find a way to declare the butchers trustworthy in kashrut, even though a Shabbat violator is ordinarily considered untrustworthy. Had the butchers been declared untrustworthy, and their meat non-kosher, the populace would have reasoned that if the kosher meat is really not kosher anyway, they may as well eat true non-kosher food. Rabbi Messas had to avoid this, and so he had to justify the trustworthiness of the Shabbat violating butchers, putting kashrut over Shabbat observance. Rabbi Messas had to overlook Shabbat violation in order to strengthen kashrut observance, and his example is instructive for us.
Thus, peoples' non-halakhic psychological feelings - right or wrong - must be considered, and sometimes, we must uphold a lesser halakha, and violate - or allow violation by others of - a weightier and more severe halakha, solely because the lesser halakha actually - and erroneously - carries more weight in people's eyes. If our goal is to save Orthodoxy, we must appeal to the laity, and this means appealing even to their misconceptions. (Although, if at all possible, we should obviously educate them and convince them to dispose of their misconceptions.) For this reason, we very likely have an imperative to emphasize kashrut in Israeli restaurants, even if this will apparently condone Shabbat desecration. For most individuals, the kashrut of food is more "Jewish" than Shabbat observance, whether this is halakhically correct or not. Therefore, if we wish to strengthen Jewish identity, we must emphasize and concentrate attention on whichever mitzvah carries the most weight in people's eyes, even if technically, more important mitzvot exist. Our goal is not yet to strengthen Jewish observance across the board, but rather, our goal is to target and strengthen those particular aspects of Jewish identity and observance which will ensure the greatest amount of stability and success in the future.
This is not to suggest that I actually believe that granting hekhsherim to Shabbat-violating restaurants will in fact appear to condone their Shabbat violation; I am only assuming that this is true, for the sake of argument. Rather, surely everyone is aware that kashrut supervision only attests to the ritual kashrut of the food itself, and not to anything else. In fact, in the case of Agriprocessors, we see that the blatant and cruel mistreatment of workers and violation of Federal law was no impediment to the ritual kashrut of the food itself, and everyone understands this, and everyone understands what it says about Orthodoxy today - v'ha'meivinim yavinu. So in truth, granting hekhserim to Shabbat-violating restaurants will not appear to condone their Shabbat-violation in any case.
Even if the restaurants were today keeping Shabbat and violating kashrut - which is not the case - and moreover, if keeping kashrut meant violating Shabbat - which is not the case - it would still be prudent for us to emphasize kashrut over Shabbat if kashrut carries more weight in people's eyes as far as Jewish identity goes. And of course, in actuality, the Shabbat-violating restaurants will violate Shabbat with or without hekhsherim, and granting the hekhsher will not appear to condone their Shabbat-violation, so actually, this is not a question of upholding one mitzvah by violating another. Similarly, for Rabbi Messas, the people and the butchers would violate Shabbat whether or not the meat was kosher, so it was obvious that kashrut had to be emphasized over Shabbat observance. Since, in reality, the restaurants violate Shabbat in any case, how can we possibly tell them to violate kashrut as well, when we could have them keep kashrut even as they continue to violate Shabbat? Should we begrudge them one mitzvah just because they break another?

III.

We mentioned in passing Rabbi Hirsch's apparent disregard for non-observant Jews. Many erroneously believe that Rabbi Hirsch's policy of Austritt, separation from the non-Orthodox community, has its basis in a supposed rejection by Rabbi Hirsch of all non-Orthodox individuals. Thus, Rabbi Howard I. Levine, in his "Enduring and Transitory Elements in the Philosophy of Samson Raphael Hirsch" writes,
In Hirsch's thinking the relationship of the individual to his mission as an Israelite is an all-or-none matter. Either you are completely committed to it and are thereby part of it, or you are completely separate and cut off from it. He is completely unsympathetic to those who have deviated from practical Judaism. His practical policy of separation from the larger Jewish community which included non-observant elements, is in full accord with his view of the mission of the Jew. The individual must identify himself fully and actively with the mission of Israel and the Law in its totality, in order to be considered part of Israel. There must be a complete and absolute obedience to begin with.
But this is incorrect. Rabbi Shelomo Danziger, in his "Clarification of R. Hirsch's Concepts - a Rejoinder" replies to Rabbi Levine, saying,
It is simply untrue that his [viz. Rabbi Hirsch's] policy of communal separation was based on the fact that the larger community "included non-observant elements." The By-Laws of K'hall Adath Jeshurun" of New York, patterned on those of R. Hirsch's Frankfurt Community, provide that: "Any Jewish person shall be eligible to apply for membership, unless, contrary to Religious Law, said person shall not have been circumcised, and/or shall not be willing to have his or her son(s) circumcised, and further, unless said person is married contrary to the Jewish Law." It is only when speaking of offices of the Congregation that the By-Laws provide: "Any person who carries on a business on the Sabbath or Holy Days, or desecrates these days in any other way, any person who has been proved to keep a trefah household or to be ochel trefah, or who denies the fundamental principles of traditional Judaism shall be considered unfit for any office, including, but not limited to, that of trustee." But he is fit for membership in the Community.
It was only when the official policy of a Jewish community was one of non-observance or denial of the Torah that R. Hirsch demanded separation from such an un-Jewish community. R. Hirsch insisted that the more we engage in friendly relations with these persons, the more it behooves us to separate completely from the communal system which is an organizational expression of sectarianism and heresy. (Collected Writings, Vol IV, pp. 339-40.)
Similarly, Rabbi Dr. Yehuda (Leo) Levi, in "Rabbi Samson Raphael Hirsch - Myth and Fact" writes,
Faced with the unbelieving Jews of his time, including Reform rabbis and their followers (Rabbi Hirsch, Collected Writings 6:206-7.), he applied Rambam's ruling concerning the descendants of the Karaite heretics. Rambam declared that, because of their upbringing, they were to be considered as acting under duress and therefore blameless; they were to be brought back to the national fold and the Torah "by words of peace. " (Rambam, Hilkhot Mamrim 3:3.) This, declared Rabbi Hirsch, was the way to approach our wayward brothers even today. (L. Levi, Tradition 9:3, pp. 95-102 (Fall 1967).)
But while he maintained peaceful and friendly intercourse with individuals who had strayed, he did not go to the extent of compromising any of the Torah's principles. Regarding these, he was absolutely firm, and, significantly, this led to his rejecting any cooperation with organizations that challenged the Torah's authority. In his opinion, an organization was defined not by its members, but by its program. Thus, an organization might be heretical, and so would have to be ostracized, even though all its members and leaders might be blameless and were to be drawn close - as private individuals.
Rabbi Hirsch ruled that when a Jew is confronted with a choice of joining or not joining a Reform congregation, he is forbidden to join, since such voluntary joining is tantamount to legitimation. This principle was called Austritt (secession), and it stands whether or not the Reform congregation provides for the religious needs of Orthodox members, for it is based on the prohibition of endorsing heresy, not on the likelihood of eventual interference with the member's practice of Torah law. (Rabbi Hirsch cited in this context Rabbi Tarfon's statement: "Even if a man is chasing after one to kill him, or a snake to bite him, he may enter a house of idolatry (to save himself, but not a house of heretics J." (Coll. Writings 6:203, quoting Shabbat 116a.)
Rabbi Hirsch's own approach toward non-observant Jews - as is exemplified in his Nineteen Letters, which was written especially for non-Orthodox Jews - was the same as that of his teacher, Rabbi Yaakov Ettlinger. In fact, Rabbi Ettlinger was the first to pioneer the classification of non-observant Jews today as tinokot she'nishbu, Jews who are (metaphorically) taken captive by gentiles as infants, who do not know any better. For more halakhic details on this policy, see:
• Rabbi Yehuda Amital, "A Torah Perspective on the Status of Secular Jews Today";
• Rabbi Dov Linzer, "The Discourse of Halakhic Inclusiveness";
• Rabbi Yom Tov Schwarz, Eyes to See, "Part VI: Relations with Non-Observant Jews" (pp. 213-248), including chapters:
? 19: "Children of Non-Observant Jews are Considered Unintentional Sinners", pp. 213-222;
? 20: "It is Forbidden to Hate the Non-Observant Jews of Our Time", pp. 223-237;
? 21: "One Who Condemns the Non-Observant Jews of Our Time Brings Indictment Against Himself", pp. 238-248.
The titles of these chapters testify of course to their contents and Rabbi Schwarz's theses therein. Rabbi Schwarz's analysis of contemporary non-observant Jews is part of his address of failings he perceived in contemporary Orthodoxy, based on that which he - by contrast - witnessed in pre-War Poland. Some of the other sections, among others, include, "The Severity of Sins Committed Against Another Person" and "Relations with Non-Jews". Already on page 17, we read, "The distinctions that are found in the Talmud are between a Jew and an akum (heathen), whose societal standards, ethics and morality were so low as to be almost non-existent, and in no way has any bearing on the non-Jews our time, as has already been noted by the Gedolei Ha'Aharonim (great halakhic authorities of the recent past)." From this brief quotation, one can accurately gauge the spiritual grandeur of this book. Rabbi Dr. David Berger, in his "Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts" lists many recent gedolim who have ruled Meiri as halakha, and apparently, we may add Rabbi Schwarz to the list.

Bibliography
Amital, Yehuda. "A Torah Perspective on the Status of Secular Jews Today". Tradition 23:4, Summer 1988. http://www.edah.org/backend/coldfusion/search/document.cfm?title=A%20Tor...
Angel, Marc. Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel. Jason Aronson: 1999.
Berger, David. "Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts", in Formulating Responses in an Egalitarian Age, ed. by Marc Stern. Lanham, 2005, pp. 83-108, http://www.stevens.edu/golem/llevine/rsrh/Jews_Gentiles_and_Egalitariani....
Cohen, Abraham. Everyman's Talmud: The Major Teachings of the Rabbinic Sages. BN Publishing, 2009.
Danziger, Shelomo. "Clarification of R. Hirsch's Concepts - a Rejoinder". Tradition 6:2, Spring-Summer 1964.
Hirsch, Samson Raphael Hirsch, Chapters of the Fathers (translation and commentary on Pirkei Avot), tr. Gertrude Hirschler. New York/Jerusalem: Feldheim.
Levi, Yehuda (Leo). "Rabbi Samson Raphael Hirsch - Myth and Fact". Tradition 31:3, Spring 1997.
Levine, Howard I. "Enduring And Transitory Elements in the Philosophy of Samson Raphael Hirsch". Tradition 5:2, Spring 1963.
Levinsohn, Rael, "Must read blog, My Random Diatribes (Michael Makovi's random thoughts)", in Emet/Truth (blog), http://www.emet.blog-city.com/must_read_blog_my_random_diatribes_michael..., citing Makovi, Michael, "Mekorot [Sources] For Paskening Meiri, Saving a Gentile on Shabbat", My Random Diatribes (blog), http://michaelmakovi.blogspot.com/2009/04/mekorot-sources-for-paskening-...
Linzer, "The Discourse of Halakhic Inclusiveness". Instituted for Jewish Ideas and Ideals, http://www.jewishideas.org/articles/discourse-halakhic-inclusiveness-rab...
Makovi, Michael, "Eyes to See: Animals' Suffering" in My Random Diatribes (blog), http://michaelmakovi.blogspot.com/2009/05/eyes-to-see-animals-suffering.....
Schwarz, Yom Tov, Eyes to See: Recovering Ethical Torah Principles Lost in the Holocaust, ed. and trans. Avraham Leib Schwarz. Urim Publications, 2004.
Zohar, Zvi."The Role of Values and Outcome in the Halakhic Process: The Sephardic Approach", Merkaz Moreshet Yisrael, http://www.merkaz.com/lectures.htm

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