(2010/5770)
The past two weeks’ essays (archived at www.koltorah.org) have grappled with the difficult dilemma regarding the prohibition of Mesirah – informing the civil authorities of a Jew’s violation of civil law. We have noted on the one hand the severity of the prohibition of Mesirah but on the other hand that there is some flexibility in regards to its application to a government such as the United States whose laws as well as treatment of Jews are essentially reasonable and fair. We conclude in this essay our survey of rulings of leading contemporary Halachic authorities which exemplify how Poskim strike a balance between honoring the Mesirah prohibition and yet protecting the Jewish community from dangerous individuals in its midst.
Testifying in Civil Court
Ordinarily, the Shulchan Aruch (C.M. 28:3) and Rama (Teshuvot 52) prohibit testifying in secular courts when all litigants are Jewish or in a case where the court will take money away from a Jew in violation of Halachah (such as when the court might force the Jew to compensate another based on one witness’s testimony, whereas a Beit Din requires two witnesses). However, Rav Schachter notes (in the aforementioned Torah Web article): “If the non-Jewish governmental authorities know that one Jew is concealing information about another Jew in order to save him from punishment, the Shulchan Aruch (Choshen Mishpat 28:3) considers this a situation of Chilul Hashem. Similarly, for many generations it was the practice that if a theft had occurred and suspicion had fallen on the Jewish community, rather than allow that suspicion to hover over the entire community, the Roshei HaKehal, with the permission of the Rabbanim, would inform the non-Jewish authorities who might possibly be the real thief (Be’er Hagola, Choshen Mishpat 388:12).”
Jury Duty
Rav Menashe Klein (Teshuvot Mishneh Halachot 4:213) prohibits serving on a jury, especially when the case includes a Jewish litigant, because performing jury duty glorifies a non-Torah legal system. Rav Hershel Schachter told Rav Ezra Frazer (recorded in Gray Matter 2:173) that he strongly disagrees with this ruling. He explained that the Halachah requires non-Jews to establish a legal system, so a Jew does nothing wrong by participating as a juror in civil courts, unless both litigants are Jewish and the matter is not of a criminal nature (in which case the matter should be heard in Beit Din). Regarding capital trials, Rav Schachter argues that a just and legitimate government has the right to punish criminals within reason. For example, if a Jew murdered, a non-Jewish government may legitimately execute him. Accordingly, Jewish jurors may vote to convict a Jewish defendant if solid evidence convinces them that he committed murder. Rav Yitzchak Isaac Liebes (Teshuvot Beit Avi 2:144) also permits Jews to perform jury duty in both civil and capital cases.
Broken Sidewalks
Rav Schachter was asked (at the aforementioned Teaneck lecture) whether it is permissible to report a Jewish neighbor to the local municipality about his failure to maintain his sidewalk. Rav Schachter replied that the neighbor’s actions constitute a failure in executing his Halachic obligations to his community. The Halacha (Bava Batra 7b and Shulchan Aruch Choshen Mishpat 163:1) states that all residents of a town are required to contribute to the construction of a protective wall around the town. The Rama rules that even a minority of the residents may insist that a levy be imposed upon all townspeople in order to raise funds for such purposes. The Rama adds that this rule applies to any communal need. In addition, he rules that townspeople may compel one another to contribute to a fund to provide for the needs of strangers in their midst and to provide charity for the poor. Accordingly, everyone is required to take the necessary steps, even if it involves financial expenditure, to ensure the safety of the members of his community. Thus, if one does not properly maintain his property and his negligence presents a danger to his neighbors, there is cause for a Din Torah.
Rav Schachter stated that the course of action is for one to summon his Jewish neighbor to the local Beit Din to seek the Beit Din’s help in pressuring the neighbor’s compliance with both his Halachic and civic duties in repairing the sidewalk. Rav Schachter explained that it is forbidden to present this issue to the civil authorities for this matter is like any other financial dispute with another Jew which Halacha requires that we present to Beit Din to adjudication and not the civil authorities (Shulchan Aruch 26:1 and note the especially harsh language used regarding those who choose to present their claims to civil court instead of Beit Din). Rav Schachter concluded that if the neighbor either refuses to attend the Beit Din hearing or refuses to follow the Beit Din’s order, the Beit Din will grant him permission to seek relief from the civil authorities (Heteir Arka’ot), in accordance with the Halacha set forth in Shulchan Aruch (ad. loc. number two).
The State of Israel
Rav Yitzchak Herzog (Techukah Leyisrael Al Pi HaTorah 1:173) notes that rabbis in Israel acknowledged their inability to punish criminals, and they consequently chose to abdicate responsibility for criminal matters: “In a Rabbinic convention held in Tel Aviv [immediately before the establishment of the State of Israel] the rabbis unanimously voiced their opinion that they wish to give up control of any jurisdiction over criminal matters. They noted that even in Eastern Europe, the rabbinate ceded jurisdiction on the matters to the non-rabbinic authorities, such as the famous Vaad Arba Aratzot [Council of Four Lands], who acted as the equivalent of the Talmudic Shivah Tovei HaIr- seven recognized community leaders - and had exclusive control of imposition of taxes and punishing rebels.
Rav Itamar Warhaftig (Techumin 10:190) argues: “The rabbis themselves did not wish to deal with [criminal law], but rather were prepared for civil courts to adjudicate this area. Hence, it is unthinkable that rabbis should not recognize an arrangement that they [or their predecessors] themselves desired!
Rabbeinu Nissim (Derashot HaRan, Derosh 11) explains how the Torah’s ideal system for enforcing criminal law requires the king and the Sanhedrin to work in tandem. In the modern State of Israel, the Batei Din and the government do not enjoy a close enough relationship to facilitate this type of collaboration. Thus, the Batei Din could not uphold the Torah’s criminal legal system, so they relinquished their jurisdiction over criminal law (see Techumin 24:313 note 1).
Accordingly, Rav Naftali Bar-Ilan (Techumin 10:190) permits testifying in civil court if one witnessed a fatal automobile accident. He notes, however, that if monetary disputes arise from the accident, these should be submitted to a Beit Din. Rav Waldenburg (ad. loc.) similarly distinguishes between Mesirah to a Jewish government and a non-Jewish government. Nonetheless, Rav Eliashiv (ad. loc. 1:198) does not appear to make such a distinction and thus even in Israel one should consult a competent Halachic authority before reporting a suspected criminal to the civil authorities. As we have noted in the past two weeks, a competent attorney should also be consulted to clarify one’s civil law obligations to inform the government of criminal behavior.
Lobbying Against the Israeli Government
Those who are members of and support organizations which lobby the American government to pressure the Israeli government to act against what the latter perceives as its own security interests, should consider the historical and Halachic implications of such actions. Although such support is motivated by what is perceived as acting in the best interests of the State of Israel, one should consider that the democratically elected government of Israel is authorized by the people of Israel to determine their security needs.
A review of the damage done by Jews throughout history against other Jews, should motivate one to seek the guidance of his Rav regarding the Halachic propriety of his actions. Similarly, to say the least, a Rav should consult leading Halachic authorities before he criticizes the State of Israel in the general media. Even sincere motivations do not justify harming the security of the nearly six million Jews who reside in Medinat Yisrael. The unusual severity of the punishments for Mesirah behooves one to exercise great caution and engage in proper Halachic consultation before speaking out against the Jewish State in the general media or in an article that will attract publicity in the general media.
Conclusion
It is difficult to achieve a balance between the prohibition of Mesirah and the need to protect ourselves and our communities. One cannot outline all-encompassing and clear-cut rules that will apply to every situation. Nonetheless, the cases we have discussed illuminate how Halachic authorities strive to achieve such a balance and emphasize the need to consult a competent Halachic authority for both his Halachic insight and overall wisdom as to how to treat any situation which may arise which potentially requires reporting an individual to the civil authorities (a competent attorney should also be consulted). We should caution, however, that one who reasonably perceives that he is in imminent danger that does not allow for Rabbinic consultation, should call the police and ensure that he receives the protection he needs. May we serve merit to serve both as devoted servants of Hashem as well as law abiding citizens of the countries in which we reside and relegate the Halacha of Mesirah as a matter of purely theoretical interest.