(2010/5770)

One who is faced with the possibility of having to report a fellow Jew to the civil government authorities is faced with a difficult dilemma. While such an action might very well constitute Mesirah, a very severe violation of Halacha, violators of just laws must be punished appropriately and the community must be protected from their dangerous deeds.

The Severe Sin of Mesirah

The Shulchan Aruch (Choshen Mishpat 388:9) states quite emphatically “One is forbidden to hand a Jew to a non-Jew, be it his person or his money, even if the Jew is a Rasha and Baal Aveirot and even if the Jew is harassing him”. The consequences for Mesirah are unusually severe. The Shulchan Aruch (ibid.) notes that the Moser has no share in Olam Haba; the Gemara (Rosh Hashanah 17a) states the punishment will last forever. A Moser is even classified as an Akum in regards to Shechitah (Rama Yoreh Deah 2:9) and writing a Sefer Torah (Shulchan Aruch Y.D. 281:3).

 The Shulchan Aruch (ad .loc. number 10) states “it is permitted to kill a Moser even nowadays”, meaning even in the absence of a Sanhedrin. This is not meant to apply only in theory. In his mid-twentieth century Talmud commentary (Sanhedrin 46a), the Margaliot HaYam relates a bone-chilling episode that his father related to him as a child. In his hometown of Greiding, Poland there was a violent and brazen Moser who one year entered the Shul on Yom Kippur eve. The Moser stood wrapped in his Tallit near the Rav when he was approached by a few men who grabbed him and used the Tallit to gag the Moser’s mouth. They brought him to the river located near the Shul and deposited him in the river. The Margaliot HaYam notes that not one of those present at the Shul revealed what had happened when the local authorities investigated the cause of death.

This harsh approach to Mesirah is quite understandable when one considers the history of Mesirah. Classic examples include the Jews who informed Paroh of Moshe Rabbeinu’s killing the Mitzri (see Rashi to Shemot 2:14) and the Jew who informed the Roman government of Rabi Shimon Bar Yochai’s mild criticism of the Roman government (Shabbat 33b). Both Moshe Rabbeinu and Rabi Shimon bar Yochai were forced into hiding for very long periods of time to save their lives. The long and damaging history of Jewish informers through the twentieth century is chronicled in the Encyclopedia Judaica’s entry “Informers”. Informers have done incalculable damage to individuals Jews as well as Jewish communities during the past two thousand years. They have cost lives and caused irreparable harm to countless individuals and communities. The Moser is treated so harshly, explains the Gra (Biur HaGra, Choshen Mishpat 388:59) and the Sema (388:29) since he is classified as a Rodef.

 The Aruch HaShulchan’s Approach

 This harsh approach is most understandable when reporting a Jew’s entirely defensible action to an evil, oppressive government. Does the same apply to governments whose treatment of Jews and justice system is relatively fair? The Aruch HaShulchan (Choshen Mishpat 388:7) writes that the rules of Moser apply only to an unjust government. Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 19:52) deduces from the fact that the Aruch HaShulchan praises not only Russian Czar but also the British government and even the British empire for spreading fair governance throughout the world, that the Aruch HaShulchan made this point not only due to his concern for government censors.

 Rav Hershel Schachter adopts a similar approach (The Journal of Halacha and Contemporary Society 1:118): “A ‘Moser’ is one who aides a pirate, a crooked government official, or a tyrant-king to obtain money illegally from his fellow Jew. Even if the Jew has actually done something wrong, but if the secular government or the ruler would exact a punishment far beyond that which the crime should require, then it is likewise forbidden to report him. If, however, the government is entitled to its taxes, or is permitted to punish criminals as offenders, there is no problem of Mesirah in telling the government information needed for them to collect their taxes or to apprehend their man.”

Nonetheless, no contemporary Halachic authority regards the rules of Moser as entirely null and void in Western democracies, even in those countries that have often shown incredible kindness to Jews such as the United States. Even Rav Schachter (in a brief essay available at www.torahweb.org) voices concern that a Jew would unduly suffer abuse from other inmates in certain prisons (Rav Schachter distinguishes between federal and state prisons) or that lingering anti-Semitic attitudes would cause an offender to receive a punishment beyond what he deserves. Rav Schachter writes that if such concerns are indeed relevant then turning in such an offender would be considered Moser.

Rav Schachter notes (The Journal of Halacha and Contemporary ad. loc.): “One critical point should however be added: There is no problem of Mesirah in informing the government of a Jewish criminal, even if they penalize the criminal with a punishment more severe than the Torah requires, because even a non-Jewish government is authorized to punish and penalize above and beyond the law, Shelo Min HaDin, for the purpose of maintaining law and order. However, this applies only in the situation when the Jewish offender or criminal has at least violated some Torah law. But if he did absolutely nothing wrong in the eyes of the Torah, then giving him over to the government would constitute a violation of Mesirah.”

Similarly, Rav Waldenberg does not simply cite the opinion of the Aruch HaShulchan in his responsum regarding a physician informing the police about child abuse. The Aruch HaShulchan is but one consideration in his discussion of Mesirah. A review of the rulings of other contemporary Poskim clearly indicates that the prohibition of Mesirah does indeed apply in certain situations even in regard to contemporary Western democracies. For examples, see Teshuvot Igrot Moshe Choshen Mishpat 1:8, Teshuvot Chelkat Yaakov 3:96, Teshuvot Minchat Yitzchak 8:148 and 9:20, Teshuvot VeHanhagot 1:807, and Pitchei Choshen Vol. 5 Ch. 4.

Accordingly, while the severity of the prohibition of Mesirah has been considerably reduced in our times (see Teshuvot Beit Yitzchak Yoreh Deah 2:49:12 and Pitchei Choshen ad loc. fn. 1) the prohibition nonetheless remains in effect. Thus, there is a need to consult a Rav before informing government authorities of suspected criminal acts committed by a fellow Jew. In addition, one should consult a competent attorney should such issues arise, as civil law might require one to report certain abusive behavior.

Solving the Dilemma

Unlike previous generations and communities, our current Jewish communities do not have the means to properly investigate and enforce Jewish criminal law, as noted by Rav Waldenberg in his aforementioned responsum. Indeed, the Beth Din of America (Rabbinical Council of America-Orthodox Union) does not adjudicate any matters of a criminal nature. Rav Schachter (in a lecture delivered in Teaneck, New Jersey accessible at www.torahweb.org) bemoans the fact of criminals who are pressured to leave their own communities but subsequently perpetrate their nefarious deeds in the communities to which they move. Thus, there is a need at least in some cases to inform the government of the criminal activities of fellow Jews. While it is difficult to set clear guidelines as to the application of the Mesirah rules in Western democracies, an overall picture and impression can be gleaned from a review of a number of rulings of the great Poskim of the past fifty years regarding the application of the prohibition of Mesirah in the contemporary circumstance.

Kashrut Fraud

Rav Moshe Feinstein (ad. loc.) was consulted by the Vaad HaRabanim of Baltimore regarding a case where an individual forged Kashrut seals and affixed them to non-kosher meat. Rav Moshe writes that there is “concern” for Mesirah if the offender is reported to the government since he would be potentially fined and incarcerated. Rav Moshe believes that these are inappropriate punishments as the proper consequence is to simply disqualify this individual from selling kosher products. Rav Moshe does, however, permit informing government officials if the rabbis determine that they are incapable of stopping the offender from continuing to sell kosher products. Rav Moshe, nonetheless, requires that the rabbis first warn the wrongdoer that they will press charges against him with the civil authorities if he does not abide by the rabbis’ ruling. This ruling is an excellent example of how to balance being fair to the offender and honoring the prohibition of Mesirah on the one hand, yet protecting the community on the other hand.

Serving as an Internal Revenue Service Auditor

In another Teshuvah, Rav Moshe (ad loc. number 92) permits serving as a tax auditor for the United States Internal Revenue Service. He reasons that if one did not accept this job, someone else will and thus violators would be discovered in any event. He adds that one may assume that most of the job does not involve discovering tax fraud since most returns are filed in an honest manner.

This ruling again serves as an example of the application of the Mesirah rules in the current environment. It is hard to imagine that Rav Moshe would permit a Jew to serve as a tax auditor for a corrupt government such as the Roman government in the time of the Gemara or the Egyptian government we hear about in Sefer Shemot. Service for the IRS is highly distinguishable from the “Mocheis”, unjust tax collectors so strongly condemned by Chazal (for example, Bava Kama 113a).  Nonetheless, Rav Moshe presents two reasons to justify such employment and did not simply respond that the Mesirah prohibition does not apply in the current environment.

Conclusion

In the next two weeks we will explore how contemporary Halachic authorities grapple with the issue of Mesirah in our present_setting.