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Informing on Fellow Jews who Commit Crimes:
Mesira in Modern Times
Rabbi Michael J. Broyde*
The S. Daniel Abraham & Ira L. Rennert Torah Ethics Project
The Orthodox Caucus
Toronto, Canada
Netivot HaTorah Day School
October 19, 2001, at 8:00 p.m.
This lecture addresses the question of whether and when Jewish law permits, prohibits or mandates that a person inform governmental authorities of the fact that a law is violating one aspect or another of secular law. In particular, this lecture will focus on the application of the classical rules of informing (mesira) to modern day America and Canada, with it's (procedurally} just system of government.
Even though Jewish law expects people to observe the laws of the land, and even imposes that obligation as a religious duty, the Talmud recounts - in a number of places - that it is prohibited to inform on Jews to the secular government, even when their conduct is a violation of secular law and even when their conduct is a violation of Jewish law. While there are a number of exceptions to this prohibition (which are explained further in this section), the essential halacha was that Jewish law prohibits such informing absent specific circumstances. Even is secular government were to incorporate substantive Jewish law into secular law and punish violations of what is, in effect, Jewish law, Jews would still be prohibited from cooperating with such a system. Indeed, classical Jewish law treats a person who frequently informs on others as a pursuer (a rodef) who may be killed to prevent him from informing, even without a formal court ruling.
The reason for the rabbinic decree positing, that an informer (moser) is a life-threatening pursuer (rodef) is simply stated by Rabbenu Asher. Rosh states:
One who runs to inform so that Jewish money is given to a bandit (anas) is analogized by the rabbis to one who is running after a person to kill him. This is seen from the verse (Isaiah 51:20) 'your children lie in a swoon at the corner of every street, like an antelope caught in a net.' Just like when an antelope caught in a net, the hunter has no mercy towards it, so too the money of a Jew, once it falls into the hands of bandits, the bandits have no mercy on the Jew. They take some money today, and tomorrow all of it, and in the end, they capture and kill him, since perhaps he has more money Thus, an informer is like a pursuer to kill someone and the victim may be saved at the cost of the life of the pursued. (Teshuvot haRosh 17:1).
Eight different sets of rules can be given that outline the general approach halacha takes.
Taken at face value, these rules would prohibit a person from calling the governmental authorities when he is aware of illicit activity by a Jew unless the informer is himself under duress to inform, or the criminal is violent or threatening of the community, or according to some decisors, the informer does so to protect his own property. These rules, by their simple direct application, would prevent a person from informing on his neighbor who is cheating on his taxes, violating non-safety related zoning law stealing cable television from the cable company, and a host of other violations of law. Informing on a serial killer, mugger, assaulter, child abuser, or any other violent criminal would be permitted.
How do the halachic rules of informing apply to a just government of laws - with non-discriminatory laws properly enforced by police who obey the laws, and who punish people in accordance with its laws -- is the question this section will address. This section makes certain assumptions about the nature and operation of law that need to be stated, as this section is predicated on these assumptions. At least four specific assumptions are posited in this section about the nature of society and its government.
The governments of the United States of America and of Canada and of the various states and provinces and other governmental units are just and proper governments that do not, as a general matter, punish people beyond the dictates of the secular law. They are not corrupt governments.
Governmental actions are not generally motivated by an anti-Semitism, and the conduct of governmental officials is not anti-Semitic.
As a matter of American and Canadian law, people cannot be compelled to go to a Jewish law court (a bet din) to resolve claims against them if they do not wish to submit to the bet din.
As a matter of American and Canadian law, batai din are unable to adjudicate matters that require physical punishment incarceration or restraint of people, and cannot respond in emergency situations when force is needed.
No less than five different halachic answers have been presented with regard to whether the prohibition against informing applies in a just society. These five views can be summarized as follows:
Rabbi Yecheil Michel Epstein Aruch Hashulchan Choshen Mishpat 388:7
Note: As is widely known, in times of old in places far away, no person had any assurance in the safety of his life or money because of the pirates and bandits, even if they took upon themselves the form of government. It is known that this is true nowadays in some places in Africa where the government itself is grounded in theft and robbery. One should remind people of the kingdoms in Europe and particularly our ruler the Czar and his predecessors, and the kings of England, who spread their influence over many lands in order that people should have confidence in the security of their body and money. The wealthy do not have to hide themselves so that others will not loot or kill them. On all of this (the presence of looting and killing) hinges the rules of informing (moser) and slandering (malshin) in the talmud and later authorities, as I will explain infra: These rules apply only to one who informs on another to bandits and so endangers that person's money and life, as these bandits chase after the person's body and money, and thus one may use deadly force to save oneself.
Rabbi Waldenberg, Tzitz Eliezer 19:52
Even in the understanding of the secular court system it appears that there is a difference between primitive and enlightened governments as is noted by the Aruch Hashulchan in Choshen Mishpat 388:7 where it states that "every issue related to informing found in the Talmud and poskim deals with those far away places where no one was secure in his money or body because of bandits and pirates, even those who had authority, as we know nowadays in places like Africa" such is not the case in Europe, as the Aruch Hashulchan notes...I write this as a notation of general importance in the matter of the laws of informing.
B. The view of Rabbi Ezra Batzri: There are No Just Legal Systems and No Just Prisons
Rabbi Ezra Batzri Dinnai Momonut 4:2:5n at page 86 writes:
Do not be surprised by the rules of this chapter, and think they are all inapplicable nowadays since governments are enlightened and democratic, a beacon for people to travel. This should be thought true of only by the very naive, as even in democracies, in truth when there is a matter that involve the government, the matter is treated as out of the normal protocol as happens when matters relate to security of the state. All rules of informing are applicable even currently. Anyone who knows and understands and sees not only what is externally visible, and what previously was, will see will see that only the external appearance has changed--but the central characteristic [of government] has not changed. Even if they bring all matters to court, it is clear that, through interrogation and the police, government can destroy people and in many places they do in fact destroy people.
Rabbi Blau. Pitchai Choshen 7:4 in note 1 writes:
Nonetheless the punishment of imprisonment is analogous to endangering a person's life by informing on them in a way that endangers their life, since imprisonment poses a possibility of life threatening conditions.
C. The view of Rabbi Yitzchak Shmelkes: informing as a Tort in a Just Government
Rabbi Yitzchak Shmelkes, Beit Yitzchak Yoreh Deah 49(12), states:
As you wrote on the central matter of one who informs about monetary matters nowadays, such a person does not have the status of a pursuer, as there is no fear nowadays that such informing will lead to danger to life, and certainly such a person is not ineligible to serve as a witness according to Torah law....
D. The view of Rabbi Shmuel Wozner; Informing is Permitted when Jewish law Recognizes Secular Law as Valid
Rabbi Shmuel Wozner. Shever Halevi Yoreh Deah 58. writes;
In the matter of one who works in the tax offices, and where he sees one who defrauds the government he has to report him to the courts. That person wants to know if he is in the status of an informer or "the law of the land is the law [and is thus proper]," It is clear that according to the halacha, taxes -- without dispute or controversy-- are covered by the obligation to obey the law of the land...On the question of informing to the government, it is clear from the incident discussed in Bava Mezia 83b with Rabbi Eliezer who informed on a person to the government, that this conduct was permitted because of loyalty to the government; even though they said to him "how long will you hand over God's nation to be killed?" that is because this matter relates to the danger to the life of a Jew. So too, that which Elijah recounts to Rabbi Yishmael [that he should cease informing] is applicable, but the technical halachaappears that this matter has a benefit to the government...See also Rama [Chosen Mishpat] 388:11 who notes that if one wishes to flee to avoid paying a gentile what he actually owes him, and another reveals this information, the latter person lacks the status of an informer. Even though that Rama concludes "nonetheless, bad was done, as it is analogous to returning the lost object to a pagan," that is limited to returning the lost object to an individual pagan. However, that which is relevant to the government and its designee, there is no sin [either of informing or returning lost objects improperly]. Nonetheless, ab initio it is better not to accept an appointment to engage in such activity, since it entails informing on one even in a permissible way, which is not the conduct of the righteous, as is noted in the Jerusalem Talmud Teruma 8:4..
E. The View of Rabbis Feinstein. The Prohibition is Unchanged by a Just Government
Rabbi Feinstein, Iggrot Moshe Chosen Mishpat, 1:8 writes:
I received your letter with regard to an evil doer who came into a kosher factory and forged the kosher symbol, placed it on non-kosher items, which he sold to Jews as kosher. The question is can one inform on him to the secular authorities who will judge him severely with either a fine or prison, or must the rabbis judge him according to Jewish law? In my opinion, even though his sin is great, and he shows no repentance, nonetheless so long as we cannot say that the Jewish judges cannot judge him, one may not turn the matter over to the secular authorities...In addition, since it is certain that the secular authorities will adjudicate the matter through incarceration or a fine inconsistent with Jewish law, one must be fearful of the prohibition of informing, as it is prohibited to inform on a Jew to the secular authorities, whether through danger to his body or his money, even if he be a sinner.
Rabbi Feinstein, Iggrot Moshe Orach Chaim 5:9(11) writes:
It is prohibited for us to inform on a person for a matter where the punishment is unfounded in Jewish law. In Jewish law, theft is resolved through restitution as measured by an expert, and secular law punishes through imprisonment, unfounded in Jewish law.