JTA is reporting that a New York area rabbi has invoked Mesira as a legal defense. How is this concept reconciled with dina d'malkhuta dina? Which concept is paramount?
Of course, to properly answer this question, it is important for us to clearly define these two Halachic (Jewish Legal) terms that are being introduced, namely mesira and dina d’malkhuta dina. However, prior to this, it may first be important to understand the context in which these terms are applied.
The ideal manifestation of the Jewish People is to live as an independent nation in the Land of Israel under the legal system of the Torah. It is important to recognize that Jewish Law is not just a system of religious law but that it is a full legal system upon which a Jewish society is to be based. Halacha, as such, touches upon all aspects of civil law, contractual law, taxation – the whole gamut of what is legally necessary for a well-functioning society. And we, the Jewish People, in our observance of Torah are ideally to be a well-functioning model society on our land.
Exile, as such, is not just a personal misfortunate that has tragically impacted negatively on Jews as individuals. Exile also had a communal impact in that our Jewish society was thereby placed in the midst of other societies – often other societies that not only did not share our value constructs but also were hostile towards us. The fact that our society was uprooted from our land and our independence, however, did not mean that we were to totally forsake any attempts to maintain our uniquely Jewish societal constructs to the greatest extent possible. With Exile, we were given the challenge of trying to exist as individual Jews under the pressures to conform from a greater population of non-Jews with different mores. We were also, however, given the challenge of maintaining, to the greatest extent possible, the constructs of a Jewish society with Torah as our legal backbone as we also exist within the confines of the host and dominant society.
So, one of the challenges facing the Jewish People in Exile is how they are going to survive as a corporate entity within the bosom of the corporate entity of the greater society. This may involve two distinct issues. One would be what to do to protect the community in the face of a hostile host society – for example, when the host society imposes unfair taxation demands upon its Jewish inhabitants. The other may be how to maintain the distinctive nature of the Jewish community and ensure, to the greatest extent possible, its unique value and legal perspective. Consideration must also, though, be made for the necessary well-functioning of the host society for reasons of law and order, in general and in regard to the Jewish community. Mishna Avot 3:2 instructs us to pray for the welfare of the government for without its proper functioning there will be mayhem. See, also, Yirmiyahu 29:7 in reference to Exile. We are to support the workings of the foreign society in which we find ourselves yet this should not be at the expense of our fair treatment and a proper expression of our uniqueness.
It is with an understanding of the tension of these directives that we can best understand the terms mesira and dina d’malkhuta dina. The former, mesira, instructs us not to give a Jew over to non-Jewish authorities. We can especially understand such a restriction if the host society is a hostile one and there is also concern that the consequences could be unfair both to the individual Jew and/or the Jewish community. This prohibition, though, may also extend to situations where the host society is not hostile; our concern, in such a matter, would be our desire to deal with the matter within our own Jewish perspective. Mesira, though, is not a blanket prohibition. At the same time, there would be cases where it would even be our obligation to assist the authorities in capturing and convicting even a fellow Jew – such as in the interests of law and order if this person was a violent criminal. This, of course, is only a very brief introduction to the concept and issue of mesira. There are many other factors that may be involved in responding to a query as to when a prohibition of mesira is applicable and when it is definitely not. Bottom line, it is a balancing of considerations between maintaining support of the functioning of our host society while also maintaining a certain level of our unique independence.
It is a similar balancing of values that is represented in the concept of dina d’malkhuta dina, which translated simply means that the law of the land is the law, namely that Halacha recognizes the law of the host country as binding. This construct, though, clearly has its limitations. If, for example, the law of a host country outlawed circumcision, Halacha, clearly, would not accept it; Jewish law would not respect as binding a law of the host country of this nature. Basically, this maxim concerns monetary matters and in its most restrictive interpretation applies to taxation, that the tax laws of a host society, if just, are binding on the Jewish community. The maxim in its most limited understanding basically instructs the Jewish community that we are to consider the laws of a host society, that are enacted to promote the proper functioning of the society, to be considered binding as well by Jewish Law. As a first extension from taxation, this would also apply to enactments for law and order. There are further understandings of this maxim that also declare it applicable in other, essentially monetary, matters. A contravening value consideration to this may be our desire to maintain the uniqueness of our Jewish perspective. With this in mind, there may be some argument to limit the application of the laws of the host society. Bottom line, again, it is a balancing of considerations between maintaining support of the functioning of our host society while also maintaining a certain level of our unique independence.
To further investigate the details of these two principles, I would direct you to the following:
Rabbi Hershel Schachter, “’Dina De’Malchusa Dina’: Secular Law as a Religious Obligation”, The Journal of Halacha and Contemporary Society 1:103;
Rabbi Simcha Krauss, “Litigation in Secular Courts”, The Journal of Halacha and Contemporary Society 3:35;
Rabbi Michael J. Broyde, “The Practice of Law According to Halacha”, The Journal of Halacha and Contemporary Society 20:5;
Rabbi Michael J. Broyde, “Informing on Others for Violating American Law: A Jewish Law View”, The Journal of Halacha and Contemporary Society 43:5.
Of course the first article deals directly with dina d’malkhuta dina while the last article deals directly with mesira.
Returning to the original question, we see that at issue is really this balancing of considerations. Mesira may be the term that is used to reflect the value in maintaining the independence of the Jewish community which may include a concern that Jews may not be treated fairly by members of the host society. Dina d’malkhuta dina may be the term that is used to reflect the value of respecting the laws of the land and the call to be good citizens especially in a land that not only has not been hostile to the Jewish community but has even been welcoming and supportive. Without knowing the specific case to which this rabbi made this statement, it is difficult to actually comment on the rabbi’s position. Similarly, it is difficult to state unequivocally that dina d’malkhuta dina clearly applies. I can only say that in regard to most of the recent cases where I have heard of such arguments, an argument of mesira would clearly not be normative. Considerations for the defaming of God’s Name (chilul Hashem) also are to become a factor in limiting charges of mesira. We are called upon to be good citizens – good members of the nation in which we live. We are also called upon to be good Jews – good members of the Jewish nation. The answer is not to pick one over the other but to attempt to accomplish both. In an environment where this would be possible, this clearly must be our goal.
I have dealt with this question at some length in my responsum for the Conservative Movement's Committee on Jewish Law and Standards entitled "Family Violence." You can find that material on pp. 798-800 of the responsum, the entirety of which is available at http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/dorff_violence.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6 -- or, alternatively, on pp. 185-187 of my book, Love Your Neighbor and Yourself: A Jewish Approach to Modern Personal Ethics (Philadelphia: Jewish Publication Society, 2003), where the responsum is Chapter Five.
The short answer to the question is that mesirah (turning over Jews to civil authorities for prosecution) does not apply to modern, democratic societies in which Jews are full citizens and are treated fairly at law (that is the thrust of modern Ashkenazic authorities) or still applies but not when the person is accused of doing something that causes the Jewish community much pain (how Sephardic authorities rule).
So no, Jews may not claim that Judaism prohibits them from turning over to civil authorities those Jews who are accused of breaking the law -- let alone those who have been convicted of doing so and have escaped from custody.
The topic of ‘mesira’ has been raised in this and two other questions on Jewish Values Online, specifically; http://www.jewishvaluesonline.org/question.php?id=700, and http://www.jewishvaluesonline.org/question.php?id=701. My colleagues have done an excellent job of laying out what the concept of mesira is and why it existed, how it is balanced with the concept of dina d’malchuta dina (the law of the land is the law), and that in many (most) instances for Jews living in a non-hostile society (in regard to laws and governance) such as the United States or Canada (for example), it is not appropriate to invoke it, or applicable to the situation. Those rabbis who are invoking mesira are doing their communities no favors, and their actions may even rise to the criminal legal level of ‘accessory after the fact’ if they know a crime has been committed and seek to ‘cover it up’.
Dina d’malchuta dina comes into play in that there is a compact that goes with citizenship. When one is or becomes a citizen, they agree to abide by the laws of the land. For Jews, this concept is understood to mean that they obey the laws unless and until those laws are in direct contradiction of Torah law (so, for example, a law that one must consume pork products would absolutely be a law that Jews would have a reason to violate; but a law that reckless driving is forbidden would not). Laws protecting children from molestation are certainly not in contradiction to Torah law. Laws protecting people from being swindled by con men, however pious they may appear, are also not in contradiction of Torah law. Anyone who is a citizen is obliged to follow the law; with the sole caveat stated for Jews. Failure to do so is a violation of secular law, and of Torah law as well because of the principle of dina d’malchuta dina.
The concept (and worldview) on which I presume the rabbis who are invoking mesira in good faith are really acting in situations such as this is that they think they are ‘protecting’ their community’. The thinking (as I can follow it) is that ‘it is better to let this guilty person off the hook for their criminal acts than to subject the community to the intrusion and possible attack of those outside the community’. This utterly mistaken view seems to underlie their actions, leaving perpetrators to continue to prey on others without retribution, out of a fear that innocent community members (or the community itself; or in a less generous view, the institutions of the community – often organizations which these rabbis run and are employed by - and thereby benefit from – will be damaged).
The entire issue of raising a ‘defense’ by invoking mesira for failure to fulfill the basic obligations of citizenship (reporting a crime, protecting victims) in the context of non-hostile societies is today more of an excuse than a need or a legitimate concern, and should be ended immediately.
My thinking is this. Those who are guilty of a criminal action are subject to the penalty meted out for that action by the system of law (and, it is hoped, of justice). Anyone standing in the way of this occurring is ‘obstructing justice’ (and giving false witness or failing to step forward as a witness) and are thus violating the law. This is certainly the secular law, and it seems to me that it is in accord with Halachah.
The claim of mesira in this context is used as the basis of the choice not to report the crimes of the alleged perpetrator because the community in which the guilty party lives could be harmed by exposing that individual, in that opprobrium would be directed at the community (not focused solely on the specific individuals whose actions are reported) for the actions (crimes) of the alleged perpetrators, making others in that community, who are innocent in this regard, suffer, and causing harm to them. In shorthand language, it would be ‘a shanda for the Jews’ to let others know about this. The historic concern on which this use of the concept rests is that the surrounding dominant culture residents would use this as an excuse to attack the Jews living there (initiating a pogrom, for example). This was historically a valid fear, but it has no place today in free, democratic societies that follow the rule of law, such as the U.S., Canada, Great Britain, Australia, etc.
The extension of this idea to the shunning or attacking of the victims of the perpetrators if they report the crime is utterly repulsive and self-serving, and in my view makes those who call for it pepetrators of another ‘shanda for the Jews’, by blaming the innocent victims and serving as false judges, teaching false Torah, and causing the community to sin. Far from righteous behavior, these actions are criminal, conspiratorial, and unethical, compounding the very criminal action that occurred, re-victimizing the victims, and forcing the entire community to become complicit.
It may be a bit extreme, but in this light I see little distinction between ‘I was just following my rabbi’s directions’ and ‘I was just following orders’.
The short answer is that I see no reason today in any democratic, stable nation that follows the rule of law that the ‘defense’ of mesira is legitimate.
Copyright 2020 all rights reserved. Jewish Values Online
N O T I C E
THE VIEWS EXPRESSED IN ANSWERS PROVIDED HEREIN ARE THOSE OF THE INDIVIDUAL JVO PANEL MEMBERS, AND DO NOT
NECESSARILY REFLECT OR REPRESENT THE VIEWS OF THE ORTHODOX, CONSERVATIVE OR REFORM MOVEMENTS, RESPECTIVELY.
