Jewish Law Logo Jewish Law - Commentary/Opinion

Informing on Others for
Violating American Law:
A Jewish Law View
Rabbi Michael J. Broyde

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


by Rabbi Michael J. Broyde 1

_________________________

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

_________________________


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


  2. 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


  3. 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


  4. 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


  5. 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


  6. 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


  7. 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


  8. 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


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


  3. 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.


  4. 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:
  1. 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.


  2. 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.42 Informing is a tort no different than damaging a person's property with a baseball bat.


  3. 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.


  4. 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).


  5. 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 is improperly 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


  2. 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


  3. 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.104 According 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.


______________________________________________

Footnotes

    [BACK]
  1. Michael Broyde is an Associate Professor of Law at Emory Law School and the Academic Director of the Law and Religion Program of Emory University. He is also a member of the Beth Din of America, and Rabbi of the Young Israel in Atlanta.

    2. [BACK]
  2. The problems associated with informing are not unique to Jewish law. Every legal system confronts in which individuals use other legal systems improperly to resolve disputes. Consider the case of Eastman Kodak v. Kavlin, 978 F.Supp 1078 (S.D. Florida, 1997), which is a most fascinating example of the tort of informing in American law. The matter involves the Kavlin company, which was the sole licensee of Kodak products in Bolivia. Kodak sought to terminate this relationship in 1995, and Kavlin responded by filling a criminal complaint against Kodak's representative in Bolivia. Kavlin's attorney was the godfather of the Bolivian judge's illegitimate child, whose mother was the sister of Kavlin's attorney and Kodak alleges that Kavlin brought the Bolivian criminal charges in order to extort an advantageous financial arrangement with Kodak, which in fact settled the claim against Kavlin on excellent terms in order to extract its employee from the local prison in Bolivia where he was placed prior to conviction by the local Bolivian judge. The United States District Court Judge observed that the prison (the infamous La Paz prison) is "a place barely fit for the rats it houses" and where Kodak's representative was incarcerated for eight days during which he was:
    sharing a filthy cell with murderers, drug dealers, and AIDS patients. Left without food, a blanket, or protection from the inmates, he was forced to bribe his way to survival. Prisoners ran the prison, and murdered each other....
    Kodak and its representative sued Kavlin in Federal District Court in Florida alleging that Kavlin improperly informed upon Kodak's representative to the Bolivian authorities who tortured this employee, and are thus tortiously liable for the damage to Kodak and its representative. The matter was settled out of court after the district court judge allowed the lawsuit to proceed.

    3. [BACK]
  3. The exact Hebrew term that is generally used is mesira, although sometimes the word malshin is used.

    4. [BACK]
  4. See Bava Kama 115b-117b.

    5. [BACK]
  5. See text accompanying notes 23 to 24, and text accompanying note 100.

    6. [BACK]
  6. Endangering the community is not limited to cases of communal punishment, or immediate short term danger. Rabbi Yitzchak Adlerstein notes the following incident recounted to him by Rabbi Mordechai Kaminetsky, in the name of Rabbi Yaakov Kaminetsky.
    There was a period in the 1970's when a group of rogues were smuggling valuables in tefillin (phylacteries) and other religious articles that would usually evade inspection; thus the thieves assumed their scheme would be successful. Often they would send these religious articles with unsuspecting pious Jews and asked to deliver them to certain locations near their final destinations. When United States customs officials got wind of this scheme they asked a few observant agents to help crack the ring. In addition to preserving the sanctity of the religious items, the customs authority felt that Jewish religious agents would best be able to mete out knowing accomplices from unsuspecting participants who had been duped into thinking they were actually performing a mitzvah.

    The Jewish custom agent in charge of the operation decided to confer with my grandfather, Rabbi Yaakov Kamenetzky on this matter. Though his advice on how to break the ring remains confidential, he told me how he explained how the severity of the crime was compounded by its use of religious items. "Smuggling diamonds in Teffilin," he explained, "is equivalent to raising a white flag, approaching the enemy lines as if to surrender and then lobbing a grenade. That soldier has not only perpetrated a fraud on his battalion and the enemy; he has betrayed a symbol of civilization. With one devious act, he has destroyed a trusted symbol for eternity -- forever endangering the lives of countless soldiers for years to come. "These thieves, by taking a sacrosanct symbol and using it as a vehicle for a crime have destroyed the eternal sanctity and symbolism of a sacred object. Their evil actions may cause irreparable damage to countless honest religious people. Those rogues must be stopped, by any means possible," he exclaimed.


    7. [BACK]
  7. According to many, but not all decisors, it would be better that there be a functioning Jewish court that would address these matters indigenously consistent with Jewish law; however this is unavailable in many historical eras, including our own. See Rivash 387 (page 115, column 3), Pa'amonai Zahav, Choshen Mishpat 26, 388 and Pitchai Choshen, Volume 5, Chapter 4, note 18.

    8. [BACK]
  8. This article is not really even discussing the question of whether one may inform on another whose conduct recklessly endangers people without malicious intent, such as a person with uncontrolled epilepsy who hides that fact from the government when seeking a driver's license; see e.g, R. Moshe Sternbuch, Teshuvot ve-Hanhagot1:850 (the authorities may be apprised of one who drives recklessly or without a license).

    9. [BACK]
  9. See Shulchan Aruch, Choshen Mishpat 369:8.

    10. [BACK]
  10. Consider a secular government that makes it a violation of secular law for a person to cut down fruit trees for no purpose (which is also a violation of Jewish law); Jewish law would prohibit informing the secular government of such a violation.

    11. [BACK]
  11. See Mishnah, Bava Kama 116b, Gittin 7a and Bava Kama 117a-b.

    12. [BACK]
  12. Bava Kama 117a, where a talmudic Sage actually killed one who was going off to inform on another.

    13. [BACK]
  13. Precisely translating the word anas is important but hard. The word denotes an illicit oppressor. Thus, a rapist is an anas, as is an armed robber. A cat burglar would not be called an anas.

    14. [BACK]
  14. Teshuvot haRosh 17:1.

    15. [BACK]
  15. Mordechai, Bava Kama, Hagozel '117.

    16. [BACK]
  16. For a more complete review, see Pitchai Choshen, Volume 5, Chapter 4 and Dinnai Momonut, Volume 4, Chapter 5. The question that is worthy of pondering is the relationship between the obligation to redeem captives (found in Yoreh Deah 253) and the prohibition to inform. In cases where there is no prohibition to inform (as informing is permitted, see Darkai Teshuva 157:53 and more generally Part III of this article) a logical case can be made that there is no mitzvah to redeem captives (as they are in prison properly) when there is nothing wrong with informing. This exact observation is made in the name of Rabbi Shlomo Zalman Auerbach in a recent work, Ve'aleyhi lo Yuval, volume 2:113-114, which recounts in the name of Rabbi Yehuda Goldreicht:
    I asked Rabbi Auerbach about a particular Jew who stole a large sum of money and he was caught by the police in America. He was sentenced to a number of years in prison in America. Was it proper to assist in the collection of money for him [we were speaking about a large sum of $200,000] in order to fulfill the mitzvah of redeeming captives to have him released from prison? When Rabbi Auerbach heard this he stated "Redeeming captives?! What is the mitzvah of redeeming captives here? The mitzvah of redeeming captives is only when the gentiles are grabbing Jews, irrationally, for no proper reason, and placing them in prison. According to what I [Rabbi Auerbach] know, in America they do not irrationally grab Jews in order to squeeze money from them. The Torah says "do not steal" and he stole money -- on the contrary, it is good that he serve a prison sentence, so that he learns not to steal!


    17. [BACK]
  17. Shulchan Aruch Choshen Mishpat 388:9 (one who informs is denied a place in the world to come).

    18. [BACK]
  18. Shulchan Aruch, Choshen Mishpat 388:9.

    19. [BACK]
  19. Shulchan Aruch, Choshen Mishpat 388:2, Sema 388(5) and Shach 388(13).

    20. [BACK]
  20. This is derived from the talmudic incident recounted in Bava Kama 116b and the comments of Rashi ad locum s.v. deachve achvi who notes that the informing is without any direct act of the informer, but yet the informer is still liable. Even in cases where the informer is not generally liable (such as when the informer is coerced) if the informer actually takes the goods with his own hands from the Jew, the informer is generally liable; Shulchan Aruch, Choshen Mishpat 388:2.

    21. [BACK]
  21. Shulchan Aruch, Choshen Mishpat 388:10.

    22. [BACK]
  22. Shulchan Aruch, Choshen Mishpat 388:11, 13.

    23. [BACK]
  23. Shulchan Aruch, Choshen Mishpat 388:14. There is a dispute between various decisors about whether such a person may be killed directly or indirectly. Compare Shulchan Aruch with Rama on id.

    24. [BACK]
  24. Shulchan Aruch, Choshen Mishpat 388:12 (troubles the community). Even a person who drives recklessly may be informed upon as such conduct endangers members of the community. See note 7.

    25. [BACK]
  25. Rama commenting on Shulchan Aruch, Choshen Mishpat 388:7, and Shach 388:45.

    26. [BACK]
  26. Rama, commenting on Shulchan Aruch Choshen Mishpat 388:12.

    27. [BACK]
  27. Shach, Choshen Mishpat 388(20) and Pitchai Choshen Volume 5, Chapter 4:15, note 44.

    28. [BACK]
  28. Compare Biur Hagolah Choshen Mishpat 388:(ayin) (proper to report) with Rama, commenting on Shulchan Aruch Choshen Mishpat 388:12 (improper to report). This is because -- even when there is no sin in helping a gentile, halacha nonetheless directs that one should not involve oneself in matter, where one need not be involved, when a Jew loses and a bad gentile (pagan) or an apostatized Jew benefits. Thus, when one finds the lost object of pagan, one should not return it to him, unless one is in a situation where either that is one's job, or one derives some other benefit, or doing such is a sanctification of the Creator's name, or not doing such is a desecration of the Almighty. For more on this, see Michael Broyde and Michael Hecht, "The Gentile and Returning Lost Property According to Jewish Law: A Theory of Reciprocity" Jewish Law Annual XIII 31-45 (2000).

    29. [BACK]
  29. Baba Kama 113b, immediately following the passage which imposes no duty of restoration of the Gentile's lost property quotes the statement of R. Pinchas b. Yair: "Whenever the danger of causing a desecration of God's name exists, even the retaining of a lost article (of the Gentile) is forbidden." Both Rambam and Shulchan Aruch incorporate this statement into the Jewish law as limiting the general rule, and requiring one to return such property. Rambam, Gezelah V'Avedah 11:3; Shulchan Aruch Choshen Mishpat 266:1. Moreover, Shulchan Aruch states that the return of a Gentile's lost property where such an act would be likely to result in sanctification of God's name reflecting credit upon the Jew and his faith, merits the highest religious praise.

    30. [BACK]
  30. Shulchan Aruch Choshen Mishpat 388:2-3.

    31. [BACK]
  31. Compare Sema 388:(13) (such conduct is prohibited, but generates no liability) with Taz 388:3 (s.v. harai ze patur) (such conduct is completely proper and without sin).

    32. [BACK]
  32. Compare Rama Choshen Mishpat 388:3 (liable) with Shach 388(22) (exempt).

    33. [BACK]
  33. See Rama commenting on Shulchan Aruch Choshen Mishpat 388:5; Responsa of Rama 88 endorses the view that informing, when done to save one's own property is not considered informing. See also Responsa of Maharshal 19.

    34. [BACK]
  34. For general sources to the above statments, see the rules above. For specific sources see, Shulchan Aruch CM 388:2-3 (when an informer is himself under phsical duress to inform and does so inform, no liability followes), Shulchan Aruch CM 388:12 and Shach 388(45) (permitting informing when the criminal is violent or threatening of the community); Rama Shulchan Aruch 388:5 (according to some decisors, when one informs to protect his own property that is not informing).

    35. [BACK]
  35. See note 6 for a discussion of whether using a Jewish court, if available, is better.

    36. [BACK]
  36. However, it is important to add that while secular law punishes people without any anti-Semitic overtones, still the punishments meted out are not -- typically -- the punishments directed by Jewish law.

    37. [BACK]
  37. Measuring corruption is a complex matter, and beyond the scope of this author's expertise. There is a well respected international organization that has examined this issue for the last six years named "The Center for the Study of Corruption" run by Transparency International which annually publishes a measure of the corruption in all major countries. Ninety-one countries are ranked. Corruption is defined as "as the abuse of public office for private gain," which is similar to the definition used by the Aruch Hashulchan. This survey used in compiling the corruption index ask questions "in line with the misuse of public power for private benefits, with a focus, for example, on the bribing of public officials or giving and taking of kickbacks in public procurement." The top 25 counties are generally viewed as without corruption. They are (in alphabetical order): Australia, Austria, Belgium, Canada, Chile, Denmark, Finland, France, Germany, Hong Kong, Iceland, Ireland, Israel, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, United Kingdom, USA.

    38. [BACK]
  38. Of course, one should not misunderstand assumptions one and two to posit that the secular government never makes mistakes or never acts corruptly or has no employees whose conduct is anti-Semitic. Rather, one cannot assume that to be true. Indeed, one can assume to the contrary, as this article posits.

    39. [BACK]
  39. See for example In re The Liverpool Household Stores Ass'n, 59 Law. Rep. 616, 617 (England, 1890) ("A misfeasance does not include a nonfeasance, and ... no complaint can be made ... of a sin of omission, as distinguished from one of commission ...."); see also Restatement (Second) of Torts ' 314 (1965) ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). As one well known police officer stated "there is no law requiring citizens to report a crime ... or to stop a crime." quoted in Jennifer Bagby, "Justifications For State Bystander Intervention Statutes: Why Crime Witnesses Should Be Required to Call For Help", Indiana Law Review 33:571 at 572 (2000).

    40. [BACK]
  40. See Jessica R. Givelber, "Imposing Duties on Witnesses to Child Sexual Abuse: a Futile Response to Bystander Indifference", Fordham Law Review 67:3169-3205 (1999).

    41. [BACK]
  41. See for example 18 United States Code '1001 which states: (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--
    (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
    (2) makes any materially false, fictitious, or fraudulent statement or representation; or
    (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
    shall be fined under this title or imprisoned not more than 5 years, or both.

    42. [BACK]
  42. In a lesser form, one could even state that "recounting information is governed by the rules of lashon hara (idle gossip) and is no longer even a tort, but it still might be a sin in certain circumstances.

    43. [BACK]
  43. Aruch HaShulchan, Choshen Mishpat 388:7. Perhaps a similar such statement can be found in the Biur Hagola Choshen Mishpat 388 (ayin), who writes:
    It has been already well accepted as a custom and decree that the leaders of the community, charged with a fiduciary duty, do not lie or commit fraud to the secular community, and they publicize and give permission to publicize and reveal to the secular community those individuals who buy on credit without expecting to pay, or borrow money without expecting to repay it.


    44. [BACK]
  44. This matter is extensively discussed by Justice Menachem Elon in "Extradition in Jewish Law" Techumin 8:263-286, 304-309 (1988) and Rabbi J. David Bleich, "Extradition," Techumin 8:297-303 (1988), and Rabbi Shaul Yisraeli, "Extradition," Techumin 8:287-296 (1988). While one can dismiss the words of the Aruch Hashulchan as put in for the censor, there are at least three logical reasons why one might conclude that the words in the text actually reflect the normative Jewish law view of the Aruch Hashulchan. They are:
    (1) All apologetic remarks for the benefit of the censor in Choshen Mishpat in the Aruch Hashulchan are found in star footnotes in italics at the bottom of the page. This passage is found in the text and not in italics.
    (2) His mention of the British government is unexplainable if directed to the censor. Britain and the Czar were not allies at this time, and he is clearly referring to the British democratic tradition.
    (3) The Aruch Hashulchan give a logical and halachic explanation for his view, which he never does when speaking to the censor.
    Indeed, this writer notes that one could almost state that if there is a hand of the censor, it is not in terms of the principle that informing does not apply to just governments, but to the Aruch Hashulchan's remark that the Czar is such!

    45. [BACK]
  45. Tzitz Eliezer 19:52. The genuineness of the view of the Aruch HaShulchan is also noted by Rabbi Gedalia Dov Schwartz in "The Abused Child -- Halakhic Insights" Ten Da'at, Spring 1988 at page 12. One could claim that the view of the Bach, as cited in the Darchai Teshuva 157:53, is identical to that of the Aruch Hashulchan.

    46. [BACK]
  46. Tur, Choshen Mishpat 388:2.

    47. [BACK]
  47. See text accompanying note 13 for the Rosh.

    48. [BACK]
  48. Rabbi Sinai Adler, Davar Sinai 45-46 (Jerusalem, 5760). See also the view of Rabbi Shlomo Zalaman Auerbach, quoted in note 15, which concludes "According to what I [Rabbi Auerbach] know, in America they do not irrationally grab Jews in order to squeeze money from the. The Torah says "do not steal" and he stole money -- on the contrary, it is good that he serve a prison sentence, so that he learns not to steal!" This approach must be predicated on the view of either Rabbi Waldenberg or Rabbi Wozner, infra, part III:D.

    49. [BACK]
  49. Measuring this type of a phenomenon is difficult and complex. Perhaps, by analogy, one can compare this to any other obligation to examine whether one need be fearful of the presence of an item or activity through statistical sampling. Consider, for example, a very simple matter: Must one check vegetables for insects? Halacha divides the obligation to check into three categories: (1) Cases where most of the vegetables have insect infestation; (2) Cases where a statistically significant (but less than 50%) of the vegetables have insect infestation (mi'ut hamatzoy); (3) Cases where insect infestation is statistically very very unlikely (mi'ut she'ano matzuy). In cases one and two one must check for infestation, and in case three one need not; See Shulchan Aruch Yoreh Deah 39:1 and Biur Hagra 39:2. See Mishkanot Yaakov Yoreh Deah 16 for a discussion of what are the exact statistical ranges for each category. Although logic would indicate that "physical danger is more severe than sin" nonetheless, in cases where danger is so remote, these rules would apply. This article posits that the United States of America is in a case three situation (danger very unlikely) when it comes to physical danger prior to conviction.

    50. [BACK]
  50. Rabbi J. David Bleich writes:
    Jewish law also posits severe strictures against delivering either the person or property of a Jew to a gentile. Thus, Shulchan Arukh declares that the person and property of even a "wicked person" and a "transgressor" remain inviolate even if that individual is a source of "trouble" or "pain" to others. There is, however, an inherent ambiguity in this proscription. There may be reason to assume that the prohibition is limited to turning over a person or his property to the custody of an "oppressor" who inflicts bodily or financial harm in a manner that is malevolent or entirely extralegal. Indeed, the terminology employed by the Tur Shulchan Arukh ("Tur") in codifying this provision of Jewish law lends credence to such a restrictive interpretation since Tur incorporates the term "anas" or "oppressor" in recording the prohibition.
    Rabbi J. David Bleich, Jewish Law and the State's Authority to Punish Crime, 12 Cardozo L. Rev. 829, 830 (1991).

    51. [BACK]
  51. Rabbi Ezra Batzri Dinnai Mamonut 4:2:5n.1 at page 86.

    52. [BACK]
  52. This writer posits, but acknowledges that he cannot prove without a doubt, that this basic argument is factually incorrect in America.

    53. [BACK]
  53. Pitchai Choshen 7:4 in note 1, in the course of a lengthy discussion of this issue discussed above in note 43.

    54. [BACK]
  54. Prison, thus, has the status of an indeterminate sentence (mas she'ayn lo kitzvah, See Rashba 1:1105, and Pitchai Choshen volume 5, Chapter 12, paragraph 5 in the notes) which is definitionally void according to Jewish law, in that in prison one is subject to random extra-judicial punishment by both the guards and fellow prisoners.

    55. [BACK]
  55. See John R. Williams, Representing Plaintiffs in Civil Rights Litigation Under Section 1983, 596 PLI/Lit 117, 160 (1998). See also Sharone Levy, "Balancing Physical Abuse by the System against Abuse of the System: Defining "Imminent Danger" Within the Prison Litigation Reform act of 1995," 86 Iowa L. Rev. 361 (2000) which notes that:
    studies demonstrate that life in prison is becoming more dangerous, and prison violence is increasing. In 1996, the U.S. Department of Justice found that fourteen percent of all inmates were assaulted while serving prison sentences. Further, not all of these incidents occur between inmates. Guards often subject both male and female prisoners to rape and physical abuse.


    56. [BACK]
  56. See Part II Paragraph 4, above and sources cited in notes 23 and 24.

    57. [BACK]
  57. Assuming that these numbers are correct, a very strong case can be made that abuse in prison is a statistically noticeable event and must be considered an event of some real possibility (a mi'ut hamatzoy) with all of the ramifications associated with that. See note 48 for more on this statistically. Consider how one would respond if a judge explicitly sentenced a non-violent felon to "three years in prison where he might be raped by fellow prisoners as part of his sentence". We would all recognize that such a sentence is wrong and improper and ought to be defied, even if that meant no punishment for such a person, as this was the only sentence government can actually provide. Rabbi Blau is arguing that such is exactly the reality of a prison sentence for a non-violent prisoner sent to a prison with violent inmates (as is the norm outside of the Federal prison system). See for example Rape in Prison, The New York Times, April 22, 2001, Section 4; Page 16; Column 1 which states:
    Because convicted criminals enjoy little public sympathy, prison guards and wardens routinely turn a blind eye as prisoners in their custody commit vicious sexual assaults on their fellow inmates. Out of sight and out of mind for most Americans, rampant sexual abuse behind prison walls scars its victims for life, transmits H.I.V. and mocks the constitutional prohibition against cruel and unusual punishment. A disturbing new report by Human Rights Watch documents how rape in America's prisons has become commonplace, .... An academic study of inmates in men's prisons in four Midwestern states found that as many as one in five prisoners reported at least one instance of forced sexual contact since being incarcerated.... America's two million prison inmates have been lawfully deprived of their liberty, but they have not been sentenced to physical and psychological abuse. Yet Human Rights Watch found that prison authorities rarely investigate complaints of rape, and prison rapists rarely face criminal charges. Most prisons make little effort to prevent sexual assaults and provide minimal attention for victims.
    Emphasis added.

    58. [BACK]
  58. Beit Yitzchak Yoreh Deah 49(12).

    59. [BACK]
  59. Pitchai Choshen Volume 5 Chapter Four, note 1.

    60. [BACK]
  60. As opposed to most forms of gossip, which do not ever lead to liability. See Pitchai Choshen volume 5, Chapter Four, paragraphs 21-29.

    61. [BACK]
  61. Or where the tort causes no damage, such as when one informs on a person for a debt that they are liable to pay according to Jewish law.

    62. [BACK]
  62. The statement in Shulchan Aruch Choshen Mishpat 388:10 that "it is permitted to kill an informer in any place, even nowadays..." would, according to Rabbi Shmelkes not be applicable when informing will never lead to harm. Indeed, the Shulchan Aruch neatly divides these sets of rules into two components, and a fairly clear result is that only the rules found in Choshen Mishpat 388:9 through 14 are a result of the sinful conduct of the informer.

    63. [BACK]
  63. Rabbi Wozner states:
    In the Biur Hagola Choshen Mishpat 388 it states "it is already well established by decree and custom that the leaders of the community guard not to lie or cheat gentiles, and they inform on and give permission to reveal who take improperly..."


    64. [BACK]
  64. Shevet Halevi, Yoreh Deah 58. Rabbi Wozner also refers to Maharam Alsheich 66 who notes that one cannot be deemed an informer (moser) when the activity one is informing on violates 'the law of the land.' That view is also hinted at in Darchai Teshuva, Yoreh Deah 157(53).

    65. [BACK]
  65. See Niddah 61a which states:
    It was rumored about certain Galileans that they killed a person. They came to Rabbi Tarfon and said to him, "hide us." Rabbi Tarfon replied, "What shall I do? If I do not hide you, you will be seen. Should I hide you? The Sages have said that ru­mors, even though they may not be ac­cepted, never­theless, should not be dismissed. Go and hide your­selves."
    The reason Rabbi Tarfon declined to aid is in dispute, and this dispute is undoubtedly related to this issue. Rashi states that the reason Rabbi Tarfon would not help these people was because if they were guilty, helping them would be prohibited. This would imply that Jewish law prohibits aiding defendants who might be guilty. Tosafot and Rabbenu Asher (Rosh) disagree and argue that the reason Rabbi Tarfon would not help them was because he was afraid that the government would punish him for helping crimi­nals escape, but that helping them is halakhically permitted; Tosafot, Niddah 61a (s.v."atmar­inkhu") and Rabbenu Asher, Tosafot ha-Rosh on Niddah 61a, both quoting R. Aha mi-Shabha, She'iltot, Numbers 129.

    This is part of a general discussion of the propriety of a Jew being a prosecutor or police officer, which I discuss at some legnth in The Pursuit of Justice: A Jewish Perspective on Practicing Law (Yeshiva University Press, 1996) 83-89.

    66. [BACK]
  66. See e.g., Rashi, commenting on Gittin 9b ("Chutz megitai Nashim") who explicitly relates secular law to the mitzvah of dinnim, and Rashi, Nida 61a ("michush leah mebay") who, at least as understood by Rosh (Tosafot ha-Rosh on Niddah 61a) adopts the view that if one kills and flees from the government, Jewish law prohibits one from assisting in avoiding the punishment of secular law, as secular law is proper in punishing in that case. For more on this, see Michael Broyde, The Pursuit of Justice: A Jewish Perspective on Practicing Law (Yeshiva University Press, 1996) at pages 83-87.

    67. [BACK]
  67. For a more complete analy­sis of this issue see Nahum Rakover, "Jewish Law and the Noahide Obligation to Preserve Social Order," Cardozo L.R. 12:1073, 1098-1118, and App. I & II (1991).

    68. [BACK]
  68. Bava Metzia 83b-84a. For an excel­lent analysis of the issues raised by secu­lar enforcement of criminal law, see Rabbi J. David Bleich, "Jewish Law and the State's Authori­ty to Punish Crime," Cardozo L.R. 12:829 (1991); see also R. J. David Bleich, "Hasgarat Poshea Yehudi she-Barah le-Eretz Yisrael," Or ha-Mizrach 35:247-269 (1987).

    69. [BACK]
  69. Ritva commenting on Bava Metzia 83b, as quoted in R. Betzalel Ash­kenazi, Shittah Mekubetzet on ibid.

    70. [BACK]
  70. This understanding might be based on an inference from the Jerusalem Talmud, Terumot 8:4 which indicates that this con­duct is only prohibited to the pious.

    71. [BACK]
  71. See Ran, commenting on Sanhedrin 46a; R. Solomon ben Adret, Teshuvot Rashba 3:29; R. Yosef Karo, Beit Yosef, Hoshen Mishpat 388; Taz, Yoreh Deah 157:7-8; R. Tzvi Hirsch Shapira, Darkei Teshuvah, comment­ing on Yoreh Deah 157:1; R. Meir Simhah of Dvinsk, Or Sameah, Melakhim 3:10; and R. Moshe Schick, Teshuvot Maharam Schick, Yoreh Deah No. 50.

    72. [BACK]
  72. The hashavat aveidat akum behinam problem is not significant because the Jew is being paid to work; he is not working for free. In general, this problem is not significant when the Jew derives significant benefit from the activity of informing, and is only relevant when the informing is gratuitous. So too, in cases of desecration of God's name these factors disappear, as explicitly noted in Shulchan Aruch Choshen Mishpat 266:1. See also note 27 for a long discussion of this issue.

    73. [BACK]
  73. Shulchan Arukh, Choshen Mishpat 369:6,11.

    74. [BACK]
  74. Shulchan Arukh, Choshen Mishpat 369:11.

    75. [BACK]
  75. Shabtai HaKohen (Shakh) on Shulchan Arukh, Choshen Mishpat 73:39.

    76. [BACK]
  76. Shmuel Shilo, Dina De'Malkhuta Dina, at pp. 145-160 who list authorities adopting either the approach of Shakh or Karo.

    77. [BACK]
  77. Iggrot Moshe, Choshen Mishpat 2:62.

    78. [BACK]
  78. Teshuvot Ibra 2:176.

    79. [BACK]
  79. This is indicated in Nephesh haRav 267-69, and has been confirm by many other souces as well.

    80. [BACK]
  80. Dirvai Yoel 1:147.

    81. [BACK]
  81. See also Shmuel Shilo, Dina De'malkhuta Dina, at p. 157, asserts that most Jewish law authorities adopt Rama's view and lists many of these authorities.

    A contemporary, Rabbi Menashe Klein, questions whether dina de=malkhuta dina applies in the United States. He states:
    [The applicability of the principle of] dina de'malkhuta dina in our times, when there is no king but rather what is called democracy needs further clarification. As I already explained the position cited in the name of Rivash quoting Rashba, one does not accept dina de'malkhuta dina except where the law originates with the king. But in a case where the law originates in courts, and the judges have discretion to rule as they think proper, or to invent new laws as they see proper, there is no dina d'malkhuta dina, as there is no law of the king ... This is even more true since we have here [in the United States] an institution called a "jury" where the government takes drunks from the market who have never studied law and who establish the law based on a majority vote. Indeed, even the government sometimes creates law and the Supreme Court contradicts it. Certainly in such a system there is no dina de'malkhuta dina according to Rivash and Rashba.
    R. Menashe Klein, Mishnah Halakhot 6:277. (Needless to say, Rabbi Klein Mishnah Halachot 7:285 also prohibits informing, although his factual predicate is so contrary to that found in this article that no response is needed.)

    Despite R. Klein's views, it is important to note that most authorities have held that dina de'malckuta dina does not apply only to laws issued by a king. Moreover, a number of preeminent Jewish law authorities have specifically held that dina de'malkhuta dina applies within the United States and have not found any problems caused by the democratic form of government, the judiciary, the jury system or the possibility of judicial review. See references to Rabbis Moshe Feinstein and Eliyahu Henkin, above.

    Indeed, once one acknowledges that dina de'malkhuta dina applies to non-monarchical governments, it is unclear why these other factors would, as a general matter, be problematic as a matter of Jewish law. For example, juries (and sometimes judges) perform a fact-finding roles, that is a necessary element in the application of law. A Noahide system of law could surely invest juries (and judges) with this responsibility without impairing the legitimacy of dina de'malkhuta dina.

    Nor is there any apparent Jewish law deficiency in the secular system for interpreting the law. Even if a king were to promulgate written laws, he would undoubtedly delegate the daily responsibility of judging cases to others, and such judges would have to interpret the law. An argument might be made that in the American system, a jury is sometimes required not only to find facts but to make decisions regarding mixed questions of law and fact. Although a comprehensive analysis of the jury function is beyond the scope of this work, the question of jury interpretation is also not significant as a matter of Jewish law. A secular system must delegate the interpretative function to someone and it is not fatal under Jewish law even if the secular system were to delegate some aspect of this function to juries. Although Rabbi Klein obviously questions the jurors' ability to make any reasonable decisions, he has not demonstrated that this criticism is significant under Jewish law.

    In any event, even if there were some irregularity in the secular procedure for applying the law, and even if this would deny Jewish law validity to the outcome of a secular case, it would not prevent dina de'malkhuta dina from rendering the substantive rules of secular law valid as a matter of Jewish law. For example, disputes between Jews, even when dina de'malkhuta dina applies, are supposed to be litigated in Jewish courts who would decide the dispute in accordance with secular law rules. In such instances, the Jewish courts themselves would serve as the fact-finders.

    Judges are also required to determine whether legislative acts are consistent with legally superseding documents - such as treaties, constitutions or even certain other legislative acts. here seems to be no reason why a secular legal system division of power between legislative and judicial branches should impair dina de'malkhuta dina.

    (The above material and the three paragraph's preceding it are quoted nearly verbatim from Michael Broyde & Steven Resnicoff "The Corporate Paradigm and Jewish Law," Wayne State Law Journal 43:1685-1818 (1997).)

    82. [BACK]
  82. Thus avoiding the problem is mashiv avedat akum bechinam, which can also be avoided based on chillul hashem factors as noted explicitly by Shulchan Aruch 266:1. Based upon this mode of analysis, Rabbi Hershel Schach­ter posits:
    One critical point should however be added: there is no problem of "mesirah" [informing] in informing the govern­ment of a Jewish criminal, even if they penal­ize the criminal with a punishment more se­verely than the Torah requires, because even a non-Jewish gov­ern­ment is autho­rized to punish and penalize above and beyond the [Jew­ish] law . . . for the pur­pose of maintaining law and order. How­ever, this only applies in the situation where the Jewish offender or criminal has at least violated some Torah law.
    R. Hershel Schachter, "Dina Di'Malchusa Dina: Secular Law as a Religious Obligation," J. Halacha & Contempo­rary Society 1:103, 118 (1981). In contrast with this, see the statements of Rabbi Feinstein, text accompanying notes 85 to 98.

    83. [BACK]
  83. As meshiv avedat akum issues despair in situations of kiddish hashem or chillul hashem. See Shulchan Aruch, Choshen Mishpat 266:1.

    84. [BACK]
  84. Assuming just prisons, but see part III:B.

    85. [BACK]
  85. There is no doubt, from many different responsa that Rabbi Feinstein wrote that he considered the government of the United States of America to be a proper government, to which full fidelity to the law of the land is expected. Besides his repeated invocation of the principle of the law of the land is the law consider the following statement:
    because of the fact that the government is a pious one, whose whole purpose is to benefit all of the inhabitants of the land, the government has created a number of programs to benefit students ....
    Iggrot Moshe Choshen Mishpat 2:29 (emphasis added).

    86. [BACK]
  86. Iggrot Moshe, Choshen Mishpat 1:8.

    87. [BACK]
  87. Of course, Rabbi Feinstein accepts that if the person will not consent to attend a bet din or will not listen to the directive of that bet din after the fact, such a person may be informed upon as this conduct falls under the category of troubling the community; Shulchan Aruch Choshen Mishpat 388:12.

    88. [BACK]
  88. Iggrot Moshe, Choshen Mishpat 1:92.

    89. [BACK]
  89. Iggrot Moshe Orach Chaim 5:9(11).

    90. [BACK]
  90. Iggrot Moshe Choshen Mishpat 2:92.

    91. [BACK]
  91. In the ellipses, Rabbi Briesch invokes the phrase vechesed leumim chatat ("sin is a reproach to all people"), found in Proverbs 14:34. See also Bava Batra 10b in a discourse between Rav Yochanan and his students. Rabbi Breish is undoubtedly referring to the midrash that even when gentiles engage in what appears to be righteous activity, one should assume an ulterior motive and discount fear of heaven as a possibility. Rashi gives as an example stealing from one to give charity to another. See also Midrash Zuta on Shir Hashirim (Bubar edition) 1:15, Responsa of the Maharil Hachadashot 123, Bet Yosef, Yoreh Deah 247 and other sources. The invocation of this phrase in this context is hard to explain as a legal device in the context of the prohibition of informing, as this rabbinic phrase notes only that one can assume that divine reward will not be forthcoming in such cases, rather than (as Rabbi Briesch implies) such activities by gentiles ought not be encouraged or counted as significant in the eyes of Jewish law to determine whether it is a tort. See for example, Responsa Ateret Paz Even Haezer 4 where such a conclusion is reached. (It is worth noting that there is an alternative understanding of the verse which posits that righteous deeds by gentiles serves instead of the sacrificial rite of a chatat, and thus grants atonement to gentiles for their sins; see Ibn Ezra on Proverbs 14:34.)

    92. [BACK]
  92. Chelkat Yaakov, Choshen Mishpat 5 (new edition), 3:96 (old edition).

    93. [BACK]
  93. Discussed above in text accompanying note 67.

    94. [BACK]
  94. Such an approach can be implied from Rambam, Rotzeah 2:4; Tosafot, San­hedrin 20b; R. Moshe Schreiber, Hatam Sofer, Likku­tim 14; and R. Bleich, "State's Authority to Punish Crime," at 840-844.

    95. [BACK]
  95. See e.g., R. Shmuel di-Medina, Ma­harashdam, Hoshen Mishpat 55:6; R. Moshe Sternbuch, Teshuvot ve-Hanhagot 1:850 (the authorities may be apprised of one who drives recklessly or without a license).

    96. [BACK]
  96. See R. Shimon Duran, Tashbetz 3:168, and R. Isserles, (Rema), Hoshen Mishpat 388:12, both of whom address communal dan­gers.

    97. [BACK]
  97. See Rema commenting on Shulchan Arukh, Hoshen Mishpat 388:12 (discussing one who counterfeits coins), 425:1. For a complete analysis of the various permuta­tions of this rule, see R. Yaakov Blau, Pithei Hoshen 5:ch. 4.

    98. [BACK]
  98. See Part II Paragraph 4, above.

    99. [BACK]
  99. Indeed, one authority has argued that on a functional level there is no differ­ence between the various approaches because disobedi­ence of the law generally will surely lead to anarchy and crime, and thus all significant violations of the law can be punished under the pursuer rationale. R. Zvi Hirsch Chajes (Maharatz Chayes), Torat Nevi'im Ch. 7.

    100. [BACK]
  100. See Iggrot Moshe, Choshen Mishpat 1:92 which states "there would be no damages and when there are no damages, there is no prohibition.

    101. [BACK]
  101. Shach, Choshen Mishpat 388:20, and Pitchai Choshen Volume 5, Chapter 4, section 6.

    102. [BACK]
  102. Abraham Sofer Abraham, Nishmat Avraham Volume 4, pages 307-11, quotes responsa from Rabbis Auerbach, Elyashiv and Waldenberg in agreement on this point, that one must report cases of child abuse. No alternative view is quoted in this enclyopedic work. Rabbi Abraham writes:
    A child or infant who is brought to a hospital with symptoms of being a battered child... it is prohibited, after an investigation to return him to his home as they will continue to beat him until he might die. Because of the real danger, it is obligatory for the doctor to inform the courts, and with an order from the court, place the child with a foster parent or agency. There is no problem of informing since we are dealing with danger to life and the parents are the pursuers. This is permitted even if they will place the child, due to no choice, with a family or agency that is secular. It is incumbent upon the Jewish court to do everything in its power to insure that the child is placed with an observant family or agency. Particularly in the diaspora it is important that the Jewish court work to insure that the child not be placed with a Gentile family or agency. Rabbi Shlomo Zalman Auerbach agreed with all of the above.

    Rabbi Yosef Shalom Elyashi recounted to me that it is permitted for the doctor to inform the authorities even if it is possible that the child will be placed with a family or agency that is not Jewish ....

    Rabbi Waldenberg wrote "if there is a real risk that the parents will continue to hit the child .... it is obligatory for the doctor to report the matter to the police..." Sexual abuse (of either boys and girls) is no different than physical abuse. [Rabbis Waldenberg, Elyashiv and Auerbach agree that reporting is mandatory also.] Rabbi Elyashiv writes "there is no difference between boys and girl since one is dealing with a seriously life wounding event (pegiah nafshit) and a danger to the public ... this is much more serious than theft and one certainly must report this matter to the school administration and if nothing is done, even to the police even in the diaspora."


    103. [BACK]
  103. As one who causes trouble to the community as a whole is treated as a violent person; Shulchan Aruch Choshen Mishpat 388:12.

    104. [BACK]
  104. Without a doubt, of course, one may seek a heter arkaot and sue this person for the damage that they have done. However, normally such tort-feasors are judgment proof, and thus such a strategy is ineffective.

    105. [BACK]
  105. I.e, the approach of Rabbi Wozner to informing combined with the approach of Rabbi Henkin to secular law.

    106. [BACK]
  106. According to Rabbi Wozner, such informing is not even violation of the conduct of the pious, since one is informing to protect one's own possessions. In a case of chillul hashem one also may inform according to this view. According to Rabbi Shmelkes, one tort justifies another.

    107. [BACK]
  107. Once a zoning violation becomes hazardous, informing is clearly permitted if the institution will not otherwise fix the problem.

    108. [BACK]
  108. Such as without an elevator for those in wheelchairs or with exterior lights that violate local zoning regulations or without a proper variance.

    109. [BACK]
  109. The zoning authorities will not arrest anyone, but will mandate the fixing of the violation and could even condemn the building.

    110. [BACK]
  110. I.e, the approach of Rabbi Wozner to informing combined with the approach of Rabbi Henkin to secular law.

    111. [BACK]
  111. See Shulchan Aruch Choshen Mishpat 266:1. See notes 27 and 81.

    112. [BACK]
  112. Such as when the zoning violation decreases the value of one's own residence.

    113. [BACK]
  113. Rabbi Batzri's view is hard to discern.

    114. [BACK]
  114. I.e, the approach of Rabbi Wozner to informing combined with the approach of Rabbi Henkin to secular law.

    115. [BACK]
  115. See Shulchan Aruch Choshen Mishpat 266:1.

    116. [BACK]
  116. Rabbi Shmelkes' view is hard to determine as he takes no view on whether jail is definitionally dangerous. Consider as well the case of a securities dealer, who is aware of insider training by another dealer. The question of what to do when one is in a profession where everyone bears an American law obligation to report violations of American law (such as a securities dealer with regard to insider trading) is complex. This forces the question of whether fear that oneself will be seriously punished if one does not inform on another gives rise to any halachic leniency and is thus permitted to; See part II:6 (text accompanying note 29). It seems logical to this writer that such a person has the status of being forced to report when there is a real genuine possibility that serious punishment will result if one does not report such a violation (although a claim could be made, that according to those authorities who prohibit such informing, such a profession ought not be chosen as a career). Obviously, this whole issue is only halachicly relevant to the view that such informing is prohibited as a matter of principle in modern times. See also note 119 for a related case.

    117. [BACK]
  117. Mashiv avedat akum.

    118. [BACK]
  118. Such as when the government knows about the cheating and actually suspects the informant of being the cheater.

    119. [BACK]
  119. See Shulchan Aruch Choshen Mishpat 266:1.

    120. [BACK]
  120. Rabbi Shmelkes' view is hard to determine as he takes no view on whether jail is definitionally dangerous. Cheating Medicaid or Medicare would seem to be no different than cheating on taxes. Consider a simple case a doctor who is in a medical practice with another doctor who is forging the first doctor's signature on Medicare reimbursement forms; May the first doctor inform on the second? This case is relatively simple as informing is the only certain way the first doctor can preserve his own Medicare rights. He is informing for direct personal benefit, and thus such conduct would be permitted, even more so since medicare fraud only very very rarely results in jail sentences.

    A much harder hypothetical involves a Jew who is involved in non-violent criminal activity with a group of Jews and who -- alone -- is caught by the police. The other members of the criminal ring are not caught and their identities are still unknown. The district attorney offers this defendant a deal in which if he reveals the identity of his fellow criminals he will serve no jail time. Otherwise, a full penalty will be imposed. While a full analysis of this matter is quite complex, it is clear that one who informs out of fear of being punished himself is not generally deemed an informer; Choshen Mishpat 388:2. However, many authorities deem such conduct a sin; see Pitchai Choshen volume 5 Chapter 4, notes 31 and 32 and Chapter 12, paragraph 5 and 27. According the view of Rabbi Waldenberg, such conduct is permitted as informing is not wrong in a just government. According to Rabbi Batzri, this conduct saves one's life, while endangering the life of others and is wrong. According to Rabbi Wozner's approach, if this were an area where secular laws authority was valid in the eyes of Jewish law, such conduct is permitted. According to Rabbi Feinstein, such informing is prohibited and perhaps even makes the informer a pursuer.

    121. [BACK]
  121. New York Domestic Relations Law Article 3, Section 17 states:
    If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided . . . he shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine not less than fifty dollars nor more than five hundred dollars or by imprisonment for a term not exceeding one year.


    122. [BACK]
  122. Attempts by government to restrict purely ecclesiastical activity (such as a Jewish wedding ceremony) are subject to strict scrutiny, and one would have to show an otherwise unattainable governmental interest to be valid as an American law. While one could imagine such a government interest in preventing out of wedlock fornication generally, such is no longer the case in our secular society. (This law was enacted in 1907 to prevent innocent couples from being duped into an ecclesiastical ceremony which was not civilly recognized.) As a general proposition, the Jewish law doctrine of "the law of the land is the law" is at its weakest in the substantive area of family law, and even more so in attempts to restrict who can marry who. For more on this, see Yabia Omer Even haEzer 8:26 (discussing whether a law can compell chalitza as opposed to yibum, for Sefardim.)

    123. [BACK]
  123. in that the separation of civil from religious status can give rise to many legal complexities in cases of divorce. Although one might think that the resulting religious marriage which is not a civil marriage defrauds the government on social security matters if this person is a widow, such is, in my view, a miss-read of modern American Family law. In current social security law, benefits from a deceased husband cease only upon remarriage. The government does not care whether a widow is engaged in a quasi-marital sexual relationship; benefits are only lost upon formal marriage. Thus a religious ceremony simply provides Divine blessing to what the secular government considers a non-marital sexual relationship, which is no longer a crime in American law. (In this regard, secular law has dramatically changed in the last forty years, when welfare and social security laws allowed the government to inspect residences of aid recipients to insure that no adult of the opposite sex was secretly sharing the residence. Such searches are not lawful anymore; See "Effect of Divorce, Remarriage or Annulment on Widow's Pension or Bonus Rights or Social Security Benefits", 85 A.L.R.2d 242, 246 (1997) and Randall J. Gingiss, "Second Marriage Considerations for the Elderly," 45 South Dakota Law Review 469 (2000). Whether this conduct is a chillul hashem is a more complex matter, but in this writer's opinion, unles one is in violation of secular law or general morality, or Jewish law or Jewish morality, one is hard pressed to consider any conduct a chillul hashem. Living in civil sin is none of the above.

    124. [BACK]
  124. except, perhaps, in cases of yibum for sefardim; Yabia Omer Even haEzer 8:26.

    125. [BACK]
  125. The practical questions revolve around the safety of the jail systems.

Jewish Law Home Page
Commentary/Opinion Index
DISCLAIMER