Thursday, September 3, 2015

Mesira II: Moser Chattas

I was happy to receive some feedback on my previous post. I realize that posting has been a rare occurrence. Well, feedback is even rarer. So I very much appreciate when it happens. It tells me that some people are thinking about what I am writing. It also gives me an opportunity to elaborate and clarify sticky points. Though, for the sake of accomplishing this, I am compelled to elaborate at great length.

I wrote in the post:  “Many readers may want to debate this point…” And I wasn’t kidding.

Thusly, several of my email clients contacted me off-line.

One close friend told me that he would not allow Mishpacha Magazine near his house. I responded that my previous apartment building in Har Nof was next door to R’ Moshe Grylak’s building. If I could allow him near my house, I could allow his magazine. (In truth, I greatly admire Rabbi Grylak and his magazine.)

Another one asked me if I discussed these issues with a particular Talmid Chacham that I know well and have pledged allegiance to in previous posts. I responded that with the passing of Harav Elyashiv, ZT”L and more recently Harav Vosner ZT”L, this Rav is transitioning to be a world class posek and, like all world class poskim, he is barely approachable at all, much less approachable to discuss anecdotal Halachic matters that are not currently active real-time situations.

But to get to the nitty-gritty, another two good friends took me on. One I will refer to as Reb K. and the other as Reb Y. Before anything else, I want to state that I know these two fellows to be shomrei Torah u’mitzvos, Yarei shamayim and baalei midos of the highest order. And they live al pi daas Torah. BUT, they also are a bit more nationalistic than the mainstream chareidim. And this makes a bit of a difference on how we view the status of the “secular” authorities here in E”Y.

In this post, I will only be able to deal with Reb K. and quote the parts of his letter that are important (you can see the full unbroken text HERE). His words will be in blue and I will bold the parts I am responding to. Here is what he wrote:

Reb K.: I enjoyed your article, and I agree with much of what you write, but you make an assumption that I disagree with, that at the very least is the subject of a machlokes with many dayos. What is your source for the assumption that whether something is or is not mesira is related to whether the person is causing direct danger to others?

(Note that my question is in lumdus, not in logic - logic can of course support whatever you want it to support, but I'm curious about lumdus.)

At this stage, a brief study of the basic Halacha of mesira is in order. We must be familiar with at least two important sources.

Source 1 -  Rambam Chovel U’Mazik 8:9 and Shu”A Ch”M 388:9 state the Halacha in identical terminology:

אסור למסור ישראל ביד עובד כוכבים בין בגופו בין בממונו ואפילו היה רשע ובעל עבירות ואפילו היה מיצר לו ומצערו וכל המוסרו ביד עובד כוכבים בין בגופו בין בממונו אין לו חלק לעולם הבא:

It is forbidden to turn in a Jew to the hands of the non-Jews whether it is his person or his assets. And this is even if he (the Jew) is a wicked person and a sinner and this is even if he (the Jew) was troubling another or causing them distress. And anybody who turns in the Jew to the hands of the non-Jews whether it is their person or their assets does not have a portion in the world to come.

Pretty harsh stuff, no?

Not the Rambam nor Shu”A in this article or in any of the adjacent ones that elaborate on this subject find any need to define what mesira is as if “something is or is not mesira” in any situation. Every situation where a Jew is turned into the hands of a non-Jew is mesira. No exceptions, no breaks. Nothing!

Source 2 - Of course, the question need be asked: What constitutes a non-Jew?

The chareidim maintain it is anybody who publicly shuns the laws of the Torah and is based on Shu”A YD 2:5:

מומר להכעיס, אפי' לדבר אחד, או שהוא מומר לעבודת כוכבים או לחלל שבת בפרהסיא, או שהוא מומר לכל התורה, אפילו חוץ משתים אלו, דינו כעובד כוכבים.  

An apostate for provocation, even for one issue, or one who is an apostate for idol worship or to desecrate the Shabbos in public (editor:  seemingly even not for provocation but merely for self-gratification) or one who is an apostate for the Torah in general even if there are exceptions like the above two (Shabbos and idol worship) his status is as a non-Jew.

Now, this was written concerning shechita. It appears again in Shu”A O”Ch 385:3 concerning an eruv. In Hilchos Yayin Nesech (Shu”A YD 124:8), it merely states that a “mumar effects yayin nesech” so here, as well, the “mumar” has the status of the non-Jew although here it is not clearly defined.

So now to respond to Reb K.:

I never wrote that I maintain (or assume) that “whether something is or is not mesira is related to” anything at all. In general, every case is mesira because this is what the Rambam and Shu”A write!

So, the default is that “everything” is mesira. But, how can this be? Harav Ariav quotes a story of a (very prominent) Rav (who, if he is the one I heard about, I will never reach his toenails) who maintains that cases like those are not mesira.  Now, this rav cannot be at odds with the authorities (i.e., Rambam and Shu”A) so we must find a way to reconcile the two without contradicting the pashut pshat of the authorities.

Well, since nothing is written clearly in the source authorities to give us a feasible exception to the default, and I do not have access to this rav, we can only assume what the rational for an exception may be. Nevertheless, this assumption is based on the idea that in all areas there are three transgressions bein adam l’chaveiro that are virtually absolute with no exceptions under normal circumstances and that carry very extreme Heavenly retribution:

  • Retzicha – homicide
  • Lashon Hara/Rechilus
  • Mesira

Yet, in the case of retzicha we know that there are extenuating circumstances that could render it justified. Examples would be: Judicial execution, knayim pogim bo, (ironically) killing a Moser, killing a “rodef”, and of course, self-defense. But we cannot say this is or isn’t homicide. It is always homicide. Only in some cases it can be deemed “justifiable homicide” and in most cases not.

We find that the other two sins: mesira and lashon hara (which are virtually the same thing – conveying information that can cause damage) carry the same rules. In general they are always assur unless, for some reason they are not. In all cases the classical example is in the case of a rodef or other form of pikuach nefesh. For lashon hara there are exceptions that we call “toelles” in the case of shidduchim or business transactions. For mesira, interestingly enough, the authorities indeed write one or two articles further that “one who troubles or distresses the Tzibur, may be turned in to the secular authorities”. It goes without saying that they are talking about substantial distress. They continue that this is not applicable to one who distresses an individual. It’s hard to imagine how one who drives his personal car in a public vehicle only lane, does not make a complete stop, or even is speeding on an open road is being distressful to anybody.

Again, it’s not like one case is mesira or lashon hara and one case isn’t. It is always mesira or lashon hara, only in one case it may be a justified mesira or lashon hara and in a normal case it is not.

So finally, to answer Reb K.’s question: We would not say “whether something is or is not mesira” because it is always mesira. It is only whether it is forbidden or justified mesira. That said, beside the case of causing substantial distress to the community, I can find no justified cause for mesira outside of “rodef” or other pikuach nefesh (perhaps danger of damages that are not life threatening can be somewhat justified) and this is how I and Harav Ariav have interpreted this Rav’s position. 

Reb K.: First, giving someone a ticket for speeding has the effect of preventing future speeding. 

With this line, after demanding from me lumdus (meaning sources) and not logic, Reb K. throws at me an argument of logic without sources. He argues that since a fine is a deterrent it justifies the mesira to secular authorities (even if there is no danger of safety). 

Did the Rambam-Shu”A exclude deterrents from their harsh prohibition of mesira? 

Bear in mind thast all of the fines in the Torah have deterrent value and yet I made a point of mentioning in my post that even a proper Jewish B”D cannot enforce the Torah fines.

Reb K.: Even if the current incident wasn't dangerous to others (say, going 140 on rt 6 at 1am) the same person may well speed in a more dangerous way in the future.

Reb K. now wants to stretch the heter to nidon al shem sofo like a ben sorer u’moreh. Ein beis midrash sh’ein bo chiddush!

Reb K.: There's a famous story of the Steipler refusing to daven for someone to be found innocent in court because the person needed to be prevented from speeding again. (Heard from Rav Leff.) 

Is this your source? A (famous??) story?  I don’t want to hear a famous story from the Steipler, I want to see a (famous) tshuva from the Steipler! Enough with the famous Rav stories. על הראשונים אני מצטער.!

BTW, why is this story famous? Is it because everybody (except me) heard it or because it was (allegedly) quoted by Rav Leff - may he have a refuah shleima בתושח"י? )

Incidentally, as I wrote in the last post, this story only makes sense if the person confessed to the Steipler gaon that he was indeed speeding. If he denied it, there is no reason for the Steipler not to help him. Frankly, it’s hard to believe this story at all. 

Reb K.: Second, the assumption that mesira is defined by whether or not someone is a danger, either current or future, is inconsistent with the Gemora (if I remember correctly) at the end of Baba Metziya, in which Rav Shimon (IIRC) turned criminals in to the malchus for highly circumstantial evidence, including cases not involving danger. 

Well, finally, a source. And a good one because this happens to be the source gemara for the abovementioned authorities. And, in-so-doing, Reb K. has shot himself in both feet and committed the super fatal error of quoting a source without first checking it out. Let’s look at this source (TB Bava Metzia 83b):

 אתיוה לרבי אלעזר ברבי שמעון וקא תפיס גנבי ואזיל שלח ליה ר' יהושע בן קרחה חומץ בן יין עד מתי אתה מוסר עמו של אלהינו להריגה שלח ליה קוצים אני מכלה מן הכרם שלח ליה יבא בעל הכרם ויכלה את קוציו

[We pick up the story after Rabi Elazar ben Shimon (REBS) suggested to a Jewish government sheriff a method to catch burglars. The government declared that the one who made the suggestion must do the job. Thus…]
They brought REBS and he went around catching burglars. Rabi Yehoshua ben Karcha (RYBK) sent to him (REBS): Vinegar son of Wine, how long will you go on turning in the [members of the] nation of our G-d for execution?
He (REBS) responded: I am eliminating the thistles from the vineyard.
He (RYBK) sent back: Let the master of the vineyard come and eliminate his own thistles.

Now if we look closely at a genuine page of this gemara we will notice a tiny letter ד  on the first statement of RYBK and again a tiny letter ה  on the second statement. Both letters refer us to the exact Rambam and Shu”A that I initially quoted to indicate that the opinion of RYBK is the prevailing one Halacha L’maaseh. 

Thus, our Reb K., in his neglect to check out the source before quoting it overlooked the fact that this subject is a matter of dissenting opinions and that the hero of his argument, REBS, loses the debate.

Yet, once he did quote the story, it is worth delving into the question: What really was REBS’s rationale to turn in “wayward” Jews? Does he have no issue with mesira? Didn’t he learn Rambam and Shu”A? 

I would like to suggest the following. Recall that the people he was turning in were night burglars. This is evident because his “method” to identify them was to see who can’t keep his eyes open at the makolet in the morning. Now, the Torah has a discourse about night burglars that crawl through tunnels and teaches us that we assume that they are prepared to kill the homeowner and thereby forfeit their right to be kept alive by virtue of being a rodef.

And, sure enough, the Gemara in Sanhedrin 72a/b expounds on the Mishna to open the sugya of Rodef with this phenomenon. (The following Mishna is the main sugya). Thus, as we said earlier that “rodef” is the universal exception to the prohibitions of homicide and mesira, perhaps REBS justifies the mesira on this basis.

Hence, even if the halalcha were like REBS, we would only know to apply it in a case that involves redifa but not in a less serious situation. This explanation, as a bonus, would negate Reb K.'s contention that these are "cases not involving danger."

Reb K.: Third, there are many other approaches to defining mesira. Somewhere in the noseh kelim in Choshen Mishpat there's a discussion (I forget exactly where) that nowadays when batei din have no power to punish, there is no mesira to turn someone in to authorities who can punish them, because criminals need to be punished.

Obviously, we can all conjure up sources we can’t find. When it is found we will take it seriously. Nevertheless, if there is such a source, I would gather that it may apply to serious crimes and not to misdemeanors. 

Reb K.: There is other discussion (I forget where) that mesira is only when a government is made up of antisemetic thugs, like medieval kings, but that a modern government with (hopefully) reasonable definitions of laws and procedures, does not constitute mesira.

Bingo! Now, Reb K. is suggesting (in another woebegone "discussion") that our government in EY and perhaps even the “benevolent” US government aren’t really such bad guys and the prohibition of mesira was not intended for such folks.

This argument crosses paths with the letter I received from Reb Y. I have already decided that this post is far too long to include responding to the comments of Reb Y. I will have to devote a special post just for him and I will defer my response for this argument to that post, bl”n. 

Reb K.: You of course can work with any definition of mesira that you want, presumably one that has mekoros. I would be very interested in seeing a mekor for the approach that you take, that something is not mesira only when it is a reaction to an immediate danger to others.

Here, Reb K. is repeating his first question. Obviously my earlier response covers this. But, I indeed want to summarize that “mesira” is not a halachic term that needs to be defined. It is an active verb just like “retzicha”. Every homicide is “retzicha” no matter why it was done and every act of turning somebody in to a governmental or judicial authority to be punished is a “mesira” no matter why it was done. And in both cases, the default is that they are forbidden. What needs to be defined, both in regard to “retzicha” and to “mesira” is what types of situations override the default. Unfortunately, the onus of bringing sources is on the one who advocates the override.

Thanks for writing!

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