Jews are Above the Law

Informing on Others for Violating
American Law: A Jewish Law View

http://www.jlaw.com/Articles/mesiralaw2.html

 

by Rabbi Michael J. Broyde 1

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Table of Contents

I. Introduction

II. Classical Jewish Law and Informing: An Overview

III. Informing on People When Government is Committed to Procedural Justice: Five Opinions of Contemporary Decisors

A. The View of the Rabbi Eliezer Yehuda Waldenberg: No Prohibition to Inform when Government is Just

B. The View of Rabbi Ezra Batzri: There Are No Just Legal Systems and No Just Prisons

C. The View of Rabbi Yitzchak Shmelkes: Informing as a Tort in a Just Government

D. The View of Rabbi Shmuel Wozner: Informing is Permitted when Jewish Law Recognizes Secular Law as Valid

E. The View of Rabbis Feinstein and Breisch: The Prohibition is Unchanged by a Just Government

IV. Hypotheticals and Conclusion

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I. Introduction

This article addresses the question of whether and when Jewish law permits, prohibits or mandates that a person inform governmental authorities of the fact that a Jew is violating one aspect or another of secular law. In particular, this article will focus on the application of the classical rules of informing (mesira) to modern day America, with its (procedurally) just system of government.2

Besides this introduction, this article is divided into three sections. The first briefly explains the central principles related to informing and summarizes the halacha as found in the Shulchan Aruch and decisors (poskim). The second section explores the various positions taken by modern decisors in regard to the prohibition to inform when society and government are just. The conclusion presents six hypotheticals that concern informing in a just society and notes the various views taken by modern decisors on them.

Two initial points need to be made to provide a certain amount of background to the relevant Jewish law. Firstly, “informing” is itself not a sufficienty precise translation of the Hebrew term3 that is the concern of this article. Jewish law discusses three different problems: informing a bandit that a person has money or some other item of value; informing an abusive government of the same, and informing the government that someone has violated its laws. As is obvious to anyone with even a vague familiarity with the flow of Jewish history, Jews have generally lived in situations where government was unjust (or unjust towards Jews) or bandits formed the basis for government, and telling the abusive government that a Jew had money or that a Jew had broken the law was a dangerous act. Indeed, this conduct clearly, readily and directly caused people to have their money taken, themselves beaten or tortured and sometimes simply murdered. The Talmudic Sages had no choice but to enact rabbinic decrees prohibiting such informing.4 This article focuses on how these rabbinic decrees affect people’s conduct in a just government, where government only acts to punish law-breakers.

Secondly — as will become clear throughout this work5 — this article is not discussing the proper response to violent criminals or people whose conduct endangers other people or the community as a whole.6 Even in unjust societies, it was clear that one must bring such people to the attention of the secular authorities, if that was the only way to get them to cease their violent ways.7 This article is discussing the problems of informing as it relates to violators of non- dangerous law or non-violent or regulatory laws, from cat-burglers and tax cheaters to zoning violators and prescription drug abusers. This article is not discussing serial killers, armed robbers, sexual predators or muggers. They must all be informed upon if that is needed to protect society from them.8

II. Classical Jewish Law and Informing: An Overview

Even though Jewish law expects people to observe the law of the land, and even imposes that obligation as a religious duty,9 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 if 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.10 Indeed, classical Jewish law treats a person who repeatedly informs on others as a pursuer (a rodef) who may be killed to prevent him from informing, even without a formal court ruling.

The prohibition of informing derives from three different talmudic incidents,11 whose central theme is that informing on a Jew so that others take the property of the one informed upon is both prohibited and tortious. One the talmudic incidents12 clarifies that the act of informing causes one to be in the formal status of a pursuer (rodef), whose life may be taken to prevent the act of informing from occurring.

The reason for the rabbinic decree positing that an informer (moser) is a life-threatening pursuer (rodef) is simply stated by Rabbenu Asher.

One who runs to inform so that Jewish money is given to a bandit (anas)13 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 is 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.14

According to Rabbenu Asher, what makes informing worse than any other act which improperly damages another Jew is that informing puts a person in danger of life and limb — even when the initial act of informing is over a small money matter. Once one is enmeshed with these types of people, one never can tell what will happen and even death can result. Thus one who informs is like a pursuer who might kill.

Mordechai states the matter differently. He writes:

Even though as a general matter we do not push into a pit [to kill] any tort-feasor, even a thief or an armed robber, the reason an informer is different is that the pagans gain and the Jews lose through this conduct; this is disgusting and one who regularly trains himself to engage in such informing to pagans — his status is worse than other tort-feasors.15

According to Mordechai, informing is different from any other act which damages another because the Rabbis decreed that a person who regularly involves himself in ensuring that Jews lose and gentiles improperly gain is engaging in an evil activity and forfeits his normal rights as a Jew.

A complete review of the rules related to informing is both complex and beyond the scope of this paper,16 but a simple understanding of the nuanced rules is needed to understand why a just government might be different.

Eight different sets of rules can be given that outline the general approach halacha takes.

    1. It is prohibited to inform on a fellow Jew to a gentile, whether the act of informing is about monetary matters or physical security.17 One may not inform on a Jew, even if the Jew is a sinful and bad person.18

    1. One who informs is liable to pay damages if his act of informing damages another.19 As a general rule one is not liable for torts done to another by a third party, informing is an exception to this rule.20

    1. 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 upon.21 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).22 One who regularly informs may be killed without warning.23

    1. One who troubles the community through misconduct may be informed upon; so too one who engages in conduct that endangers members of the community may be informed upon.24 One who hits other people, or otherwise engages in acts of violence against people, may be informed upon.25

    1. 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 upon only has to pay that which he ought to pay, anyway.26 Payment of taxes to the government is exactly such a debt.27 Some say such informing is frowned on when it gratuitously benefits a pagan, and others say such conduct is proper.28 All agree that when such conduct leads to a desecration of God’s name, it is prohibited to decline to report such a person.29

    1. 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 causes.30 There is a dispute as to whether such conduct is proper or simply immune from liability.31

    1. 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.32

  1. 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.33

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.34 (In cases of desecration of God’s name, informing is also sometimes permitted.) These rules, by their simple direct application, would prevent a person from informing on his neighbor who is cheating on his taxes (since the government imprisons such people, and does not merely retake the money owed), violating non-safety related zoning law, stealing cable television from the cable company, and a host of other violations of American law. Informing on a serial killer, mugger, assaulter, child abuser, or any other violent criminal would be permitted.35

The next section considers whether just governments have different rules according to Jewish law.

III. Informing on People When Government is Committed to Procedural Justice: Five Opinions of Contemporary Decisors

How do the halachic rules of informing apply to a just government of laws — with non-discriminatory laws properly enforced by police who obeys 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 American 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 American society and its government.

    1. The government of the United States of America and of the various states 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.36 They are not corrupt governments.37

    1. Governmental actions are not generally motivated by anti-Semitism, and the conduct of governmental officials is not anti-Semitic.38

  • As a matter of American 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 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.

As will be shown throughout this section, disagreeing with any one of these four factual points will frequently lead to significant changes in the applicable Jewish law of informing.

One additional point needs to be made about American law, as it impacts on the relevant Jewish law. As a general proposition, members of our secular society are not obligated, according to American criminal or tort law to report violators of American law.39 In modern American law, unlike Jewish law, if one did not cause the violation or have some other special relationship either to the victim or the criminal, one bears absolutely no legal obligation to intervene to stop a crime or even call the police.40 In American law one need not report one’s neighbor for tax fraud, or call the police when one witnesses a crime, or rescue a drowning person from a river. Thus, even in circumstances where Jewish law mandates that one not inform on a person, the person who has knowledge of criminal activity by another, and does not report it, is not violating American law at all. However, once one is summoned to testify, or even questioned by a government official, it is a crime to lie to a governmental official about a relevant matter.41

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 rules of informing have not changed at all, as they are independent of the status of the government as just or unjust. Informing is thus only permitted in cases of harm to others, or any one of the exceptions permitting informing mentioned above.
    1. An informer is not a pursuer anymore, but informing is still a tort, and one who informs on another without cause is liable for the damages caused.42Informing is a tort no different than damaging a person’s property with a baseball bat.

  • Even a just government behaves improperly sometimes, or runs jails that are improper places, and the presence of even occasional improper behavior by government or its agents or in its prisons justifies the prohibition of informing. Thus, the rules of informing have not changed.
  • There is no prohibition of informing to the secular government when the secular government is enforcing a law that Jewish law deems valid under “the law of the land is the law” or according to the obligation of gentiles to create a proper system of law (dinnim).
  • There is no prohibition of informing when government conduct is governed by law and order generally. The talmudic Sages prohibited informing to bandits and unjust governments only.

As has been made clear throughout this work — these five views are not discussing serial killers, armed robbers, sexual predators, muggers or other similar violent criminal. They must all be informed upon if that is needed to protect society from them.

A. The View of the Rabbi Eliezer Yehuda Waldenberg: No Prohibition to Inform when Government is Just

The view that the prohibition of informing does not apply to a government that protects property rights and is generally governed by law and order is first articulated in the writings of Rabbi Yecheil Michel Epstein in his restatement of Jewish law, the Aruch Hashulchan. He states:

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.43

The question of whether the writer of the Aruch Hashulchan really meant what he wrote or he wrote it for the sake of the censor is still a matter in dispute.44 However, Rabbi Eliezer Waldenberg adopts the view of the Aruch Hashulchan explicitly. In the course of discussing whether one my inform on a teacher who is molesting children, Rabbi Waldenberg states:

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 the 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.45

The halachic predicate for this view is that the repeated use of the term bandit (anas) throughout the many halachic texts dealing with informing is to be limited to its simple meaning — it is only prohibited to inform on people to bandits. The many different rules limiting when one can inform on a Jew are limited to cases where the people to whom you are informing are unethical and unjust individuals or an unethical and unjust government.

The language of the Tur supports this. Tur states:

One who delivers another’s money into the hands of a bandit, whether the bandit is Jew or Gentile, must pay damages that he caused, since he caused a loss of money….46

A close examination of the words of Rabbenu Asher quoted above47 does indeed indicate that it is the fear of improper murder or torture of the victim that caused this rabbinic decree.

Rabbi Yosef Shalom Elyashiv explicitly adopts this logic. A questioner asked:

The office of Religious Affairs in our location has been robbed of collected money on more than one occasion. All of the indications point to one of the workers, but all of our efforts have not led this person to confess. We are asking if it is proper to call the police, who after investigation, if successful, will bring the suspect to secular court. The matter could be serious, as we suspect that the person is the husband of a large family, and this person is connected to Torah activities; it is possible that there will be a desecration of God’s name, Heaven forbid. On the other hand, public money is missing, and who knows what else is gone.

Rabbi Elyashiv replied:

See Responsa Panim Me’erot 2:155 dealing with our matter of one who found an open chest, and much was stolen from it. There is reasonable grounds to believe that one of his workers did this act of theft. Is it permissible to inform on this worker to the secular authorities? He proves from Bava Batra 117 and Bava Metzia 25 that there is a religious duty on the judge of this matter to hit and punish based on the knowledge that he has, when his knowledge is correct. He then quotes from the incident with Rabbi Heshel and the view of the Shach but he ends he concludes “nonetheless I [the author of the Panim Me’erot] say that is it improper to report him to secular authorities, as our Talmud sages recount ‘they treat him like a caught animal’ and one must be afraid that they will kill him.” From this it is clear that such is not applicable in our [Rabbi Elyashiv’s] times. By the halacha it would be proper to report him to the police. But, you ponder the possibility that this will lead to a desecration of God’s name, and it is not in my ability to evaluate this, since I do not know the facts.48

This view posits that when fear of death or torture is functionally gone, the rabbinic decree prohibiting informing does not apply.49 This is true according to these authorities even when the government has no right (according to Jewish law) to enforce this particular law on its Jewish citizens or is punishing them in a manner far beyond that permitted by Jewish law, and even applies when the government is arresting an apparently innocent person, as the system as a whole is just and fair. Even non-violent criminals or people who violate regulatory directives (such as zoning laws) may be informed upon, in this view.

This approach posits that informing — even when the government does (as a matter of after-the- fact truth) use the information provided by the informer to produce an improper result — is not a classical tort at all in the eyes of Jewish law, but was a special rabbinic decree prohibiting conduct that was not intrinsically tortious, and that rabbinic decree prohibiting informing was limited to situations of banditry.50 Thus in situations where there is no prohibition to inform, there is no violation of Jewish law to inform. Any damage that is caused is not attributable to the informer but to the one who does the damage.

B. The View of Rabbi Ezra Batzri: There Are No Just Legal Systems and No Just Prisons

Rabbi Ezra Batzri, in his modern multi-volume treaties on Jewish commercial law, Dinnai Mamonut, responds to the view discussed in the Aruch Hashulchan above. After stating the view that informing is prohibited, he notes the following:

Do not be surprised by the rules in this chapter, and think that they are 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 involves 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 that only the external appearance has changed — the outside 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.51

Rabbi Batzri posits that even when the external justice system seems to work, nonetheless the executive and judicial systems is so deeply fraught with exceptions, and extra-judicial misconduct, and coerced confessions, that one must assume injustice will occur and thus informing on a fellow Jew remains generally prohibited, as always.52

Rabbi Yaakov Yeshaya Blau, author of the multi-volume Pitchai Chosen raises a related point as a possibility. Even if the justice system works up until the point of incarceration:

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.53

Rabbi Blau proposes the possibility that even if a justice system works only to incarcerate people who are deserving of incarceration, jail is a most unpleasant place to be, with physical duress exactly of the type the Talmud imagined, and thus informing on a person in a way that might produce a prison sentence is prohibited.54 Evaluating this type of claim is very difficult, but Rabbi Blau’s observation has a certain amount of merit in this matter. One well known commentator on prisons in America observed:

Prisons, never safe places, are growing increasingly dangerous to inmates. The most recent Department of Justice research shows that 14% of all prison inmates — and 20% of those under the age of 25 have been assaulted while in prison.55

According to Rabbi Blau, it is in prison where halacha now fears that the observations of the Rosh are correct — people are abused and tortured without any basis in law.

If the approach of either Rabbis Batzri or Blau is correct, one divides cases of informing into three types of categories. One situation occurs when a person is being informed upon is an individual who is violent, or threatens violence, or induces harm to others or endangers the welfare of the community. Such a person may be informed upon, as Jewish law recognizes the need to remove these people from the community, even if these people might be harmed by the brutal prison system.56 The second situation is that of the non-violent criminal (white collar crimes such as intentionally bouncing checks, or recreational personal drug use). Because the prison system might be brutal to them,57 Jewish law rules that one may not inform on them to the police because the punishment imposed on them is unacceptable according to Jewish law. Other areas of informing, such as parking violations, building code violations, unintentional environmental damage, and the like, where arrest and detention is not a possibility, would not be prohibited by this rationale.

In this writer’s opinion, this observation — that prisons are (sadly enough and to the shame of our society) treacherous places with tortious conditions incapable of punishing people justly — has a powerful practical logic to it and seems factually persuasive. If American society cannot run a criminal justice system that punishes non-violent criminals properly, Jewish law should not be an accomplice to a criminal justice system that in fact brutally punishes people for non-violent offenses.

C. The View of Rabbi Yitzchak Shmelkes: Informing as a Tort in a Just Government

Rabbi Yitzchak Shmelkes advances a novel answer to the question of informing in a just society. He 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….58

According to Rabbi Shmelkes, one must make a factual determination as to whether informing can lead to life threatening conditions. If it can, then informing leads to one being classified as a pursuer; otherwise, such conduct is a generic tort and while damages have to be paid, one is not considered a pursuer (rodef) because of such conduct. One might not even be deemed a “sinner” but merely a tort-feasor.

A similar such view is seemingly endorsed by Rabbi Yaakov Yeshaya Blau, writing in the Pitchai Choshen, who states:

In the writings of many decisors we have seen that they found some merit (lamdu zechut) on the kings and governments of their time that the rules of informing did not apply. But it is widely known that in these kinds of works the hand of the censor is present. In circumstances they wrote (or left out) matters out of fear of the censor or the government, or at the least because of hatred of the Jews (aiva), and it is thus hard to learn from these sources. Nonetheless, in my humble opinion, there is an acceptable aspect of this view [that informing does not apply in just society] since the essence of the prohibition to inform even on monetary matters is ‘lest they come to kill you.’ It is clear that in a country where the government is just, even though informing is clearly prohibited, nonetheless there is no fear that they will kill you. Thus an informer is no different from any other damager of the property of another, and none of the strictures concerning informing which can result in physical duress apply….59

To understand this view, one must accept that there are really at least two distinctly different components to the rules of informing: the tort component of damaging another, and the sin of endangering the life of another through informing. In a society where, in fact, there is no danger of life and limb through informing to the governmental authorities, the informer loses his status as a pursuer, according to the view of Rabbi Shmelkes.

Indeed — although Rabbi Shmelkes does not state so explicitly — when only the tort prohibition is present, the only reason informing is prohibited is because one isimproperly damaging the property of another. Absent the danger — both economic and physical — informing becomes merely a tort. It is an unusual tort according to Jewish law in that the causation is indirect, but that would be the essence of the remaining rabbinic decree — that informing on another improperly, creates liability according to Jewish law.60 In fact, the halacha does become much more complex in that once informing is treated like any other form of damages, it becomes permissible to engage in informing any time damaging another is permissible.61 Thus, for example, consider the case of one who was improperly disposing of waste oil into another’s backyard. If this person’s misconduct did halachically recognizable harm to another, and that person needed to abate the harm being done him, he could call the relevant governmental organizations, which would issue the suitable regulatory remedy. However, according to the rationale of Rabbi Shmelkes, if one simply called the relevant authorities in a case in which there was no harm to oneself, such action would be prohibited according to Jewish law, as it would be causing damage without any right to do so according to Jewish law.62 One would then be liable for the full damages one did, including lawyer’s fees and the like.

D. The View of Rabbi Shmuel Wozner: Informing is Permitted when Jewish Law Recognizes Secular Law as Valid

Another view relates the prohibition of informing to the legality (from the perspective of Jewish law) of the secular government’s actions. In this view, informing is prohibited only when the government seeks to enforce secular law that Jewish law does not consider obligatory upon Jews, according to Jewish law.

Consider, for example, Rabbi Shmuel Wozner’s discussion of whether one may work as a tax auditor for the government.

In the matter of one who works in the tax offices, and when 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 Metzia 83b with Rabbi Eleizer who informed upon 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 halacha appears that this matter has a benefit to the government….63 See also Rama [Choshen 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 a 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…. Furthermore this case is not analogous to other cases as those cases involve danger to life when the gentiles are informed; this case is different because punishment imposed on the violator nowadays never involves mortal danger.64

In this view, informing is a violation of halacha only when Jewish law does not recognize the inherent validity of the right of the secular government to enforce its actions through the law of the land. Whether the conduct one is reporting violates autonomous Jewish law (absent secular law) is completely irrelevant to this mode of analysis. Whether the person is punished in a matter consistent with Jewish law or not also does not matter, because Jewish law only prohibits informing when secular law is invalid in the eyes of Jewish law.65

In this writer’s opinion, this approach is broadly predicated on the conceptual analysis of Rabbi Shlomo Yitzhaki (Rashi), com­menting on the Talmud, who seems to accept that Jewish law recognizes that the secular government may properly enforce any law validly promul­gated under the rule “the law of the land is the law” (dina de-malkhuta dina), even against Jews as a function of the [law creating] dinim obligation imposed on Gentiles.66 Main­taining law and order is unques­tion­ably one such function, as is collecting taxes. Indeed, once one accepts that Gentiles are empowered by Noachide law (through the commandment of dinim) to make and enforce laws, it is not a far leap of logic to observe that such criminal laws, once made, are binding upon Jews to the extent that Jewish law does not mandate a different result. If that is so, the Jewish community may assist in the enforcement of Noachide law without stepping afoul of the rabbinic prohibition of informing (mesira).67

As noted by Rabbi Wozner, this approach can be found explicitly in a number of talmudic incidents, and the commentaries of various rishonim on it. The Talmud states:

Rabbi Eleazar son of Rabbi Simeon met a police officer. Rabbi Eleazar said to him, “How can you detect the thieves . . . ? Perhaps you take the inno­cent and leave behind the guilty.” The officer replied “And what shall I do? It is the king’s com­mand.” [Rabbi Eleazar then advised this police­man how to determine who was a thief and who was not] . . . A report was heard in the royal court. They said, “Let the reader of the letter become the mes­senger.” Rabbi Eleazar son of Rabbi Simeon was brought to the court and he proceeded to appre­hend thieves. Rabbi Joshua son of Karchah, sent word to him, “Vinegar, son of wine! [i.e., inferior son of a superior father] How long will you deliver the people of our God for slaugh­ter?” Rabbi Eleazar sent the reply, “I eradicate thorns from the vine­yard.” Rabbi Joshua responded, “Let the owner of the vineyard come and eradi­cate his thorns”. . . . A similar incident befell­ Rabbi Yishmael the son of Rabbi Yosi. The prophet Elijah ap­peared to him and re­buked him. . . . “What can I do — it is the royal decree,” responded Rabbi Yish­mael. Elijah retorted “Your father fled to Assia, you flee to Laodica [i.e., you should flee and not obey].”68

Thus, the Talmud records that two sages were re­buked for assisting the government in the prosecu­tion of criminals, indicating that this conduct is not proper, or at least the subject of a dispute between Rabbi Eleazar and Rabbi Joshua. A number of commentaries advance an explanation which changes the focus of this reprimand. Rabbi Yom Tov Ishbili (Ritva)69 states that even Rabbi Joshua — who rebuked Rabbi Eleazar for working as a police officer — admits that it is only scholars and rabbis of the caliber of Rabbi Eleazar and Rabbi Yishmael who should not assist the government as prosecu­tors or police officers. Even for these individuals such conduct was not prohibited, but only frowned upon.70 Many authorities agree with this explana­tion.71 Ac­cording to this analysis, it is only the pious who should not engage in this type of work as it is undig­nified for scholars to act as government agents in these circumstanc­es — but all others may.72 There is not a technical prohibition to inform in such cases.

If Rabbi Wozner’s conceptual observation is correct, the scope of the prohibition to inform is inversely related to the scope of the obligation to obey the law of the land, about which there are three theories. While a full survey of the reach of the obligation to obey secular law is well beyond the breadth of this article, a brief review of the relevant theories is worthwhile and explains when informing is permitted, according to this theory. There are three principal perspectives regarding Athe law of the land is the law:

    1. Rabbi Joseph Karo rules that secular law is binding under Jewish law only to the extent that it directly affects the government’s financial interests. Thus, secular laws imposing taxes or tolls would be valid under Jewish law.73

    1. Rabbi Moshe Isserles (Rama) agrees that secular laws directly affecting the government=s financial interests are binding, but adds that secular laws are enacted for the benefit of the people of the community as a whole are also, as a general matter, effective under Jewish law. 74

  1. Rabbi Shabtai HaKohen (Shach) disagrees with Rabbi Isserles in one respect. He believes that even if secular laws are enacted for the benefit of the community, they are not valid under Jewish law if they are specifically contrary to indigenous Jewish law obligations.75

While there is substantial debate among Jewish law authorities as to which approach to follow, 76 nevertheless, it seems that most modern authorities agree that, at least outside of the State of Israel, Rabbi Isserles= view should be applied, and such is the view all four of the deans of Jewish law in America in the previous generation: Rabbis Moses Feinstein,77 Eliyahu Yosef Henkin,78 Joseph Soloveitchik,79 and Yoel Teitelbaum.80 In this view, almost all applications of secular law are valid under Jewish law.81

Based on this approach — informing is only prohibited where Jewish law rules that one need not obey secular law — one could argue cogently that informing is actually permitted in any situation in which the person on whom one is informing has actually violated secular law that Jewish law deems valid, and the person who is informing on the person gains financially from governmental enforcement, or from the abatement of the tort.82 So too, in a situation where silence would lead to a desecration of God’s name and informing would lead to a sanctification, informing would be permitted.83

In this writer’s view, this understanding of Jewish law — that the prohibition of informing does not apply when the secular government is acting consistent with its rights under Jewish law, and Jews are duty bound under Jewish law to obey such laws — has a powerful theoretical logic to it and seems halachically persuasive.84 If Jews are obligated to obey any particular secular law, and Jewish law recognizes as valid any particular penalty that the secular government imposes for a violation of that secular law, it makes no halachic sense to rule that assisting the government in enforcing that law is a violation of the rules of informing and a tort. It ought not be tortious to help enforce a secular law that Jewish law rules one obligated to obey.

E. The View of Rabbis Feinstein and Breisch: The Prohibition is Unchanged by a Just Government

The view of Rabbi Briesch (explicitly) and Rabbi Moshe Feinstein (implicitly) is that the rules relating to informing are unrelated to the status of the government as just or unjust, proper or improper. In three distinctly different responsa, Rabbi Feinstein appears to posit that the prohibition of informing remains identical in a just society.85 In 1961 Rabbi Feinstein answered a question concerning whether the communal rabbinate may report to the police a person who had been selling not kosher food as kosher, if this person, instead, is willing to consent to a din torah by the rabbis themselves. Rabbi Feinstein 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.86

No mention is made of the fact that the secular authorities (in this case, the state of Maryland) will adjudicate the matter fairly (i.e., consistent with its laws) or that prison was the proper penalty according to secular law. Rather, Rabbi Feinstein adopts the view that unless one of the exceptions permitting informing is present, it is prohibited to inform on a person according to Jewish law as the punishments imposed by secular law violate Jewish law, and thus may not be imposed on a person lest one violate the prohibition of informing.87

This view of Rabbi Feinstein is repeated again in Rabbi Feinstein’s discussion of whether one can be a tax auditor for the government. Rabbi Feinstein states:

In the matter of one who wants to be an auditor for the government such that on occasion one will encounter the tax returns of one who has cheated, and he will detect the fraud, [and will thus report it to his superiors] and will be like one who informs the government, and they will punish this person more than he is liable according to Jewish law. It seems logical to me that since anyone who examines tax returns will encounter the fraud, and even if this person declines the job, others will take the job and discover the fraud, one sees from this that the one who commits the fraud suffers no loss whether this person takes the job or not and another is there, and thus the one who cheats loses nothing whether or not this person takes the job and without a loss there is no prohibition.88

Again, Rabbi Feinstein posits that there is no justification to inform on a person given the just American government. Rather he provides a narrow “technical” explanation for why this particular activity of informing while working for the IRS is not prohibited to this particular person. Rabbi Feinstein would rule that in a case where if any particular person did not inform, then the cheater would not be caught, then it would be prohibited to inform.

Indeed, in a responsa entitled “May One Inform on a Thief to the Courts of the Land” Rabbi Feinstein states:

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.89

Although Rabbi Feinstein provides no explicit discussion of whether a just government is of any relevance, Rabbi Feinstein repeatedly focuses on the fact that the punishment imposed by the secular government is contrary to Jewish law in its magnitude or scope, and thus when one Jew causes another to be punished in excess of the punishment directed by Jewish law, that is a prohibited form of damage grounded in the tort of informing as the punishment is unjust by definition as Jewish law has a different punishment. Thus, in all of these responsa Rabbi Feinstein posits that the punishment authorized by the secular statute is greater than that permitted by Jewish law, and thus the conduct of informing is prohibited. In cases where the punishment is not greater than that directed by Jewish law, it would appear logical to posit that Rabbi Feinstein would not prohibit informing as (in Rabbi Feinstein’s own words) “there would be no damages and when there are no damages, there is no prohibition.”90

A different rationale is explicitly stated by Rabbi Ya’akov Briesch, who notes that the rules which prohibit informing cover even cases where there is no threat to bodily harm. Rabbi Breisch was asked:

Is the prohibition of informing specifically when they are chasing after Jews, and thus if one informs on one’s friend they punish him because he is a Jew, but if a gentile did this they would not punish him, then one is called an informer (moser), or it is even nowadays, when they are not pursuing Jews through law, and if a gentile had violated the law they would punish him as what he did is a crime, is that too called informing as defined in Shulchan Aruch, Choshen Mishpat 388

Rabbi Briesch answers:

One who looks in Shulchan Aruch and other decisors will see explicitly that there is no difference, and even when one who uses secular courts to reclaim his own, the matter is in dispute in Choshen Mishpat 388:5 and the Shach views such a person as an informer. A similar view is taken Brachot 58a concerning . . . [a person who slandered government] and such a person became a pursuer [to destroy the government] and he was killed. Even though it is certain that if a gentile had done the same thing and called the government bitter they would have punished him, still Rav Shelai considered him an informer (moser) and killed him; while it is true that this case is different in that Rav Shelai was certain that they would be punished for mocking the government. …. Even the money of a Jew, once it falls into the hands of a gentile, they show no mercy on it, as is quoted in Shulchan Aruch and other decisors, and as a matter of normative halacha this matter does not change ….91 That which we have seen in recent times [the Holocaust] provides proof to this.92

Rabbi Briesch is stating that even when there is no illicit harming of one’s body, money is taken contrary to Jewish law, and that alone validates the rabbinic prohibition against informing.

Both of these approaches finds considerable halachic justification in the alternative approach developed by the rishonim to explain the conduct of Rabbi Eleazer and Rabbi Joshua in Bava Metzia 83b-84a.93 This approach rejects the opinion of Rabbi Eleazar that one may serve as a police officer and informant, and states that Rabbi Joshua, who rebuked Rabbi Eleazar, represents the normative opinion which prohibits this con­duct.94 If Rabbi Joshua’s opinion is normative, then the only time it would be permitted to assist the secular government in criminal prosecutions is when the person poses a threat to others through his conduct95 or where the criminal poses a threat to the community through his con­duct.96 Both of these situations are based upon the rules of a pursuer (rodef). Indeed, in Jewish law, one who poses a threat to the life of others must be prevented from accomplishing the intended harm; force — even deadly force — may be used in such a case without the need for a court hearing. This threat need not be limited to the possibili­ty that the criminal will actually harm another, but includes such factors as the possibili­ty that in response to a Jew being appre­hend­ed for commit­ting a crime, other Jews will be injured or anti-Semitism will be promoted.97

If the approach of either Rabbis Feinstein or Breisch is correct, one divides cases of informing into two types of categories, no different in a procedurally just society than in an unjust society. One situation occurs when the person is being informed upon is an individual who is violent, or threatens violence, or induces harm to others or endangers the welfare of the community. Such a person may be informed upon, as Jewish law recognizes the need to remove these people from the community, as such conduct is not prohibited, given the lack of authority the bet din has in the community currently.98 In all other cases, informing is prohibited, and is subject to the rules of informing, as explained in part II of this article.99 In cases where the outcome is identical in secular law and Jewish law, Rabbi Feinstein would aver that there is no problem of informing, as there is no damage.100

IV. Hypotheticals and Conclusion

This article has sought to elaborate and explain on the Jewish law prohibition of informing, with a particular focus on how the prohibition applies to a democracy, with a just system of government that grants freedom to its many different citizens. One group of decisors posit that just governments are exempt from the prohibition of informing, either because the whole prohibition did not apply when government was just, or because governments that operate within the confines of the Jewish law obligations of the “law of the land is the law” are exempt. Another group of decisors posit that the prohibition of informing fully applies even to just governments, as the rabbis did not want Jews assisting in the punishing of Jews in a manner inconsistent with Jewish law — even if the government itself can engage in this conduct, Jews should not help it. A third group of decisors posits that the system — even as it appears just — is not, and thus informing is prohibited.

Consider six simple cases to elaborate on the various views. (Assume in each of these cases that such a person will not obey the directives of a bet din to stop, and, in fact, the community and its bet din is internally powerless to stop such a person.)
1. A Jew regularly assaults people. May one inform on him to the police? This case is straightforward. All agree that such a person must be informed upon, either because informing is permitted generally or because a violent person should be informed upon.101 Thus, it is clear, that one must report allegations of child abuse (sexual or physical) when one is aware of it, (even if this means that the child might be places in a Gentile foster home).102

2. A Jew is a regular non-violent vandalizer of others property. May one inform on him to the police?

If the person rises to the level of one who makes the community suffer by regularly doing such vandalization, then all agree that such a person may be informed upon to the police.103 However, if one does not rise to such a level, then whether one may report such a person depends on which view of informing one accepts in modern times.104According to the view of Rabbi Waldenberg, who permits informing generally, or those authorities who permit informing when secular law is valid in the eyes of Jewish law,105 or Rabbi Shmelkes, who think that informing is merely a tort, one may inform in this case if one is the victim of such conduct (as government will treat this person justly, and one is permitted to do a tort to one who damages one’s property, if that will cause the one who is behaving improperly to stop).106 However, in the view of Rabbi Feinstein, who rules that no aspect of informing has changed, or Rabbi Batzri, who rules that any form of incarceration creates improper informing, such informing is wrong.

3. A Yeshiva has built a building with a non-dangerous107 zoning violation in place.108 May one inform on them to the zoning authorities?109

According to the view of Rabbi Waldenberg, because informing is no longer sinful in a just government, such conduct is permitted. According to those authorities who permit informing when secular law is valid in the eyes of Jewish law,110 although such conduct is not informing it is prohibited under the rubric mashiv avedat akum –unless being silent leads to desecration of God’s name or informing leads to a sanctification of God’s name, in which case informing is mandatory111 — and would only be permitted when the informer stands to benefit concretely from the enforcement of the zoning violation112 or when it is the informer’s job to find such violators. According to the view of Rabbi Shmelkes, such conduct is not prohibited informing, but is a tort, and would only be permitted in cases where tortious conduct is permitted. According to Rabbi Feinstein, such conduct is prohibited.113

4. A Jew is a recreational marijuana user (but not seller), who grows his own marijuana in his backyard. May one inform on him to the police?

According the view of Rabbi Waldenberg, such conduct is permitted since informing is not wrong in a just government. According to Rabbi Batzri, such informing is prohibited and makes the informer a pursuer, as it will land the drug user in jail, and that is prohibited. According those authorities who permit informing when secular law is valid in the eyes of Jewish law,114 although such conduct is not informing, it is prohibited under the rubric mashiv avedat akum — unless being silent leads to desecration of God’s name or informing leads to a sanctification of God’s name, in which case informing is mandatory115 — and would only be permitted when the informer stands concretely to benefit from the arrest, it was one’s job to arrest such people. According to Rabbi Feinstein, such informing is prohibited and makes the informer a pursuer (unless this conduct is one’s job, and if you did not do it, someone else would or the person violating the law would be detected anyway.116)

5. A Jew is knowingly and intentionally cheating on his United States taxes. May one inform on him to the Internal Revenue Service? According the view of Rabbi Waldenberg, such conduct is permitted because informing is not wrong to a just government. According to Rabbi Batzri, such informing is prohibited and makes the informer a pursuer, as it will land the tax cheater in jail, and that is prohibited. According to Rabbi Wozner, although such conduct is not informing, it is prohibited under the rubric doing gratuitous harm to another,117 and would only be permitted when the informer stands to concretely benefit from the arrest,118 or when it was one’s job to detect such people or when being silent leads to desecration of God’s name or informing leads to a sanctification of God’s name, in which case informing is mandatory.119 According to Rabbi Feinstein, such informing is prohibited and makes the informer a pursuer (unless this conduct is one’s job, and if you did not do it, someone else would and the person would be detected anyway.120)
6. A rabbi in New York repeatedly performs Jewish weddings aware of the fact that the couple that he is marrying according to Jewish law have not been issued a civil marriage license, and do not wish to have one issued, in violation of New York law.121

This law is of debatable constitutionality, perhaps only applies in situations where the couple wants to be married according to civil law, and is on the outer limits of the proper application of “the law of the land is the law.122” Only Rabbi Waldenberg’s view would permit informing in such a case, although performing such a wedding is a deeply unwise idea for many different reasons.123 This case is readily distinguished from the case of a man who is religiously (but not civilly) divorced from his wife, and now he wishes to religiously (but not civilly) marry another woman. In that case, there are many more serious grounds for prohibiting such a religious ceremony – two are readily apparent. First, and most significantly, such conduct is a chillul hashem in that the man and woman who are religiously married to each other are conducting an adulterous relationship in the eyes of secular society. Second, the secular law that is being violated in that case is the bigamy statue, whose validity is without contest in halacha through dina demalchuta.124

Conclusion

The application of talmudic rules to modern life is complex and difficult, and frequently requires that one ask questions that until modern times were not be asked, as the social conditions made the question irrelevant. This article poses such a question — how do the rules of informing apply in a just society with an honorable government — and notes the variety of answers taken by different decisors. The central theoretical analytic question revolves around the question of what is the scope of Jewish law’s recognition of valid secular criminal legislation which Jews should serve as agents of enforcement for.125 One view adopts the view that Jewish law has no prohibition to inform once society has a system of laws and justice, rather than institutional banditry, as government was in the middle ages. The other view states that Jewish law allows cooperation with secular law only when Jewish law recognizes that any particular secular law is valid (and that is contingent on the scope of the rule “the law of the land is the law”). The final view posits that Jewish law does not allow Jews to voluntarily cooperate with secular authorities in the punishing of Jews in situations where the substantive punishment meted out is harsher than that imposed by Jewish law itself. All however agree that the excersize of substantive governmental authority is itself valid in the eyes of Jewish law; the question merely is whether one my cooperate in a society where cooperation is not mandatory.

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3 thoughts on “Jews are Above the Law

  1. Whereas the LAW of Christ is easy to enforce . Love thy neighbor as thyself

    Or common law . If you hurt someone or their property then you are liable

    Like

  2. So are you saying if you saw a “jewish” person or a muslim person being beat up or something you would not help him ?

    Luk 10:30 And Jesus answering said, A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead.
    Luk 10:31 And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side.
    Luk 10:32 And likewise a Levite, when he was at the place, came and looked on him, and passed by on the other side.
    Luk 10:33 But a certain Samaritan, as he journeyed, came where he was: and when he saw him, he had compassion on him,
    Luk 10:34 And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him.
    Luk 10:35 And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee.
    Luk 10:36 Which now of these three, thinkest thou, was neighbour unto him that fell among the thieves?
    Luk 10:37 And he said, He that shewed mercy on him. Then said Jesus unto him, Go, and do thou likewise.

    You have a misunderstood view of thy neighbor . Jesus Christ said do good unto thy enemies which many are neighbors

    Your above statement is shady at best

    Neighbor
    NEIGHBOR, n.

    1. One who lives near another. In large towns, a neighbor is one who lives within a few doors. In the country, a neighbor may live at a greater distance; and in new settlements, where the people are thinly scattered over the country, a neighbor may be distant several miles. Such is the use of the word in the United States.

    2. One who lives in familiarity with another; a word of civility.

    3. An intimate; a confidant.

    4. A fellow being. Acts 7.

    5. One of the human race; any one that needs our help, or to whom we have an opportunity of doing good.

    6. A country that is near.

    Like

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