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.
- It is prohibited to inform on a fellow Jew to a gentile, whether the act of informing is about monetary matters or physical security. One may not inform on a Jew even if the Jew is a sinful and bad person.
- One who informs is liable to pay damages if his act of informing damages another Even though, as a general rule one is not liable for torts done to another by a third party, informing is an exception to this rule.
- Even without the order of a Jewish law court, one may kill a person who has certainly set out to inform on another, prior to their act of informing, as informing poses a danger to the one who is informed on. Once a person informs, one may not kill the informer as punishment for the sin and one may not steal from an informer (unless taking his property will stop him from informing). One who regularly informs may be killed without warning.
- One who troubles the community through misconduct may be informed on: so too one who engages in conduct that endangers members of the community may be informed on. One who hits other people, or otherwise engages in acts of violence against people, may be informed on.
- When a Jew owes money to a gentile, and the Jew is seeking to improperly avoid payment of the money to the gentile, and another Jew informs the gentile of this fact who then collects the money rightfully owed to him, that is not called informing, as the Jew who is informed on only has to pay that which he ought to pay, anyway. Payment of taxes to the government is exactly such a debt. Some say such informing is frowned on when it gratuitously benefits a pagan, and others say such conduct is proper. All agree that when such conduct leads to a desecration of God's name, it is prohibited to decline to report such a person.
- A Jew who is threatened with physical harm unless he informs on another is not called an informer if he delivers information and he is not liable for the damage caused. There is a dispute as to whether such conduct is proper or simply immune from liability.
- There is a dispute about whether a Jew who is threatened with economic harm unless he illicitly informs on another is called an informer or not and whether such conduct is permitted or not.
- Many authorities rule that no liability is present if one informs on another to save one's own property without any gratuitous intent to hurt the other person.
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:
- The View of the Rabbi Eliezer Yehuda Waldenberg: No Prohibition to Inform when Government is Just
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.
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