Sunday, September 6, 2015

Mesira III: Moser Shlamim

Hello readers.

I am back again with another exciting episode of: Is this mesira or not?

With regard to my previous post, one of the responses that I wrote to Reb K. was a bit of a slip-up. I would like to fix that up. I also deferred another response to be addressed in this post, and, finally, I want to discuss the comments of Reb Y.

First allow me to reprint the words of Reb K. that I wish to address: 

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.

The response I presented was: if there is such a source, I would gather that it may apply to serious crimes and not to misdemeanors. 

This may turn out to be so (if we ever uncover this phantom “source”) but I could have done better. A better response is that the entire premise is faulty. Criminals do not need to be punished.

This is evident from the terminology of the authorities who unanimously write that the prohibition applies “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.”

Hold on! Don’t criminals need to be punished? If they are sinners and cause others distress, what’s the problem?

The answer is: No. Criminals (evil-doers) do not need to be punished. Let the master of the vineyard come and eliminate his own thistles! (Halacha l’maaseh)

Evil doers need to be stopped from doing more evil. Thus it may be justified to turn them in when their actions constitute a rodef or they are continuously distressing the entire community.

ובערת הרע מקרבך

But to turn them in just for punishment or retribution?? Not on their authority you can”t.

Now, let’s move on to the part I deferred. Here is what he wrote:

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.

Reb K. is alluding to a very good point. Thus far I haven’t expounded on the extreme severity of this deed as stated by the authorities that: And anybody who turns in the Jew … does not have a portion in the world to come.

No portion in the next world? Goodness. And this is one of only four places in all of Shu”A that the mechaber uses this term!

Interestingly, there is absolutely no mention of this extreme punishment of forfeiting one’s portion in the next world anywhere in Talmud! Yet, the authorities (Rambam and Shu"A) are exceedingly unforgiving over here despite no concrete source in Shas. Why?

We may answer that these authorities lived during eras (Rambam during the Almohad revolution and Shu”A shortly after the Spanish expulsion) where:
(1) Capital punishment was meted out summarily for even minor offenses. Note that Rabi Yehoshua ben Korcha (RYBK) criticized Rabi Elazar ben Shimon (REBS) for turning in Jews “for execution” even though they were only guilty of burglary.
(2) Every known non-Jewish government was anti-semitic and driven by religious zeal and did not allow the Jews equal rights with the general population. As such, turning a Jew over to the authorities almost always ensured an overly harsh punishment if not “the axe”.

Absolutely horrible! For this reason these authorities “threw the book” at any type of moser.  

Today, however, most Jews have found respite in the few countries (EY, US, Canada, Western Europe, SA, Australia) that, are totally secular and at least outwardly, offer equal rights to Jews and due process of law to everybody. Not quite as horrible. As such, if one turns a Jew into the authorities, he is not subjecting him to unfair “cruel and unusual punishment” and, what’s more, giving “just” punishments to wrong-doers is for the common good.

In other words, Reb K. is intimating that if Rambam and Shu”A (and RYBK) were to live in our current docile societies, their ruling on the prohibition for mesira would be very much mitigated.

It looks to me that Reb Y. was asking me the exact same thing at the top of his email. He wrote:

I wonder though, even if everything you wrote is 100% Halachically correct (& I have my doubts. How would Rav Moshe zt"l pasken here?)

He is wondering how Rav Moshe ZT”L would pasken. Why Rav Moshe? I assume this is because Rav Moshe was the pre-eminent posek in the good old constitutionally protected, peace loving U.S. of A. the champion of truth, justice and the American way. There are no summary executions or corporal punishment in the US and fines are “reasonable”. What should be so horrible about enforcing just laws in such a nice place?

Well, it’s hard to say how they would rule and Reb K. anyway has not produced his source; but, consider the following:

  • The benevolence in the “western world” that we enjoy today is an anomaly – the exception rather than the rule. And I fear even this may turn out to be short lived. It barely existed at all anywhere in the world until the mid to late 1700s. Since then, sure we have had America and Canada but, at the same time, we have had Nazi Germany, Soviet Russia, Eastern Europe, Dreyfuss, Mendel Beyluss, Pinochet and Peron, the Ottoman Empire and the British Mandate to name a few. Oh, and in America we have had Rosenbergs, Pollard, and Rubashkin. Note that the United States is known to have the largest per capita prison population of all developed countries. This has been partially attributed to the existence of privately run prisons which profit from being well populated - like the nursing home industry - and as such, find ways to keep their prisoners there for longer  terms. And - not unlike nursing homes - different institutions maintain differing standards on how to treat the prisoners, always with a focus on the bottom line. The US justice system is also known for evidence tampering and jury manipulation, etc. (See links at the end of this post.) And, here in EY we are blessed with administrative detention - a carry over from the good ol' Mandate days - where citizens can be held without charges. It is claimed (and disputed) that to date this has only been applied to Jewish Israeli citizens.

    Doesn’t this make you feel safe and secure?
שבכל דור ודור עומדים עלינו לכלותינו

  • The Halachic authorities give equal weight to mesira that results in corporal punishment and mesira that results in monetary punishment. When it comes to money, things haven’t changed much over the years. Today’s western governments (US and EY for certain) are very fanatical in their prosecution of what they deem to be tax evasion and money laundering where they use a seize-first-and-ask-questions-later policy. If you are not familiar with the concept of Civil Forfeiture, you may want to check it out. (See the links at the end of this post.) 

  • It seems pretty clear that the basic problem of mesira is subjecting a Jew to any kind of punishment that has not been authorized by a Beis Din and is not based on Torah standards. Does it matter if they are not “draconian”?

  • As I wrote in my original post (and intend to expound upon in a later post), the subject of mesira gets complicated when it is not a sure thing that the person being reported is actually guilty. In the event that he is not guilty at all, I can’t imagine why it should matter if the secular authorities are not exceedingly harsh.

  • Perhaps, if the wayward Jew really did break the law and the local government system is fair and just, the authorities may concede that the moser will not lose his portion in the world to come (since this extreme measure is not based in divrei Chazal anyway), but, from their language, to think that they would be matir the mesira l’chatchila is a very wide jump.

And now, I would like to respond to Reb Y. Here is what he wrote:

Interesting post. I wonder though, even if everything you wrote is 100% Halachically correct (& I have my doubts. How would Rav Moshe zt"l pasken here?), aren't you by discouraging frum men to enter the police force (at least in certain positions), leaving the field wide open to the Chilonim & non-Jewish population? And if this is really mesira, then the Chiloni cop is just as much of a Moser. So what have you accomplished?

מה הואילו חכמים בתקנתם?

And if the police force becomes dominated by Arabs, chilonim, & Druzim, do you really expect them to have ANY Rachmanus when you run that stop sign????

Reb Y. is asking a phenomenal question:
Since, as a society, we cannot avoid the need for a police force to keep law and order and to enforce civil laws, what is the sense of leaving this touchy job in the hands of Jew-haters? Would the Torah community not be better off having our own doing this ignoble job than people who don’t like us?

Great question. In fact, Reb Y. may be alluding to the Maharsha’s question in our source gemara in Bava Metzia 83b (see previous post). The earlier part of the story relates that a government appointed sheriff was turning in burglars. REBS was concerned that this sheriff was being indiscriminate and mixing in good guys with the bad guys (apparently, he had to fill a quota). So REBS taught him a method to ensure that he only turns in bad guys. The government compelled REBS to do the job himself and RYBK criticizes REBS for turning in Jews for execution, even bad guys. Comes the Maharsha and remarks that REBS’s sole intention was to ensure that only bad guys and not good guys get caught. If he left this to others, then even good guys would be turned in. Thus, it’s much better for the Jewish community that he (REBS) does the job rather than a simple (perhaps not-so-religious) Jew.

The easy answer to Reb Y. is to stay with the Maharsha who continues that RYBK was saying “even so, you should not turn in any Jews, good or bad.” And the Halachic authorities uphold this position. Thus, I can claim RYBK as an ally to my “discouraging frum men to enter the police force”.

But I will throw in a more complicated answer:
In case I was misunderstood, I am all for obeying traffic laws. I think we should all really make full stops at stop signs, and avoid public vehicle only lanes, and certainly to signal, yield, avoid passing on the right, and most certainly to wear seat belts. Notice, as well, that I fully support the Chillul Hashem aspect. (See original post.)

Hence, in a theoretical (or utopian) sense, we good frum Jews shouldn’t be caught doing moving violations. Moving violations are for the riff-raff. So let the rest of the riff-raff handle them.

Of course, Reb Y. implies that (as long as we don’t live in utopia) if the traffic cops are all  "Arabs, chilonim,and Druzim" (which most of them are anyhow) they are likely to nitpick on the Torah Jews and single us out for tickets and “dan” questionable violations l’kaf chov, etc.

Well, that’s why we daven day after day for deliverance from the malchus Ha-minus.

But, this opens up a brand new question (which is why his question was so great):

I am evidently suggesting that to be a law enforcement officer is not a job for a nice Jewish boy. So, suppose we were indeed living in a Malchus of Torah and tzedek and all citizens are Shomrei Torah and mitzvos and law enforcement is handled by a kosher Sanhedrin and batei din, would we not still need traffic laws for safety and people to enforce them? Should there be fines for law breakers? And if fines cannot be collected by way of confession (as is prevailing Torah law) and a policeman will need to bring two objective witnesses in order to exact a fine, how will traffic laws be enforced?

As a full blooded Jew, I will answer the question with a question: Do traffic rules or laws need to be enforced? Would anything be different if they were not enforced?

In other words, most traffic accidents are caused by human error and poor judgment. (Poor judgment includes improper lane usage, passing on the right or into the oncoming lane, tailgating, trying to stretch a green/yellow light, texting and cell phone usage, miscalculating speed on curves or during bad weather or bad road conditions.) Add to this driver fatigue or intoxication and mechanical failure.  We surely need road markers and road signs, traffic lights, speed markers, and a set of rules. Conscientious drivers will generally obey the rules with or without enforcement. Scofflaws will violate the rules even after getting tickets. But, one thing is certain: nobody really wants to get into an accident (ch”v).

Thus, the only purpose of tickets – aside from funding the local law enforcement industry – is to sharpen people’s “poor judgment”. But is it effective? Even safe drivers sometimes do risky stunts because they are in a hurry or whatever or get distracted (me, too) and sometimes (R”L) “el-crasho”. So there will always be accidents, but will speed traps (or make-a-full-stop traps) change the score?

The only way to tell would be to go for, let’s say, a year without enforcing the laws and to see if there is a significant increase of accidents. My instincts tell me that in a safety conscious society (which one would expect in utopia Malchus shel Torah that I am talking about) there will not be a substantial difference. Thus, we will be able to leave the shoftim and shotrim free to prosecute other Torah violations.

And even in our world where there are zillions of reckless drivers on the roads, does traffic law enforcement really make the roads that much safer; or is it more of a convenient pretense to generate revenues for the law enforcement industry to give parnassah to the ADHD population?

It’s certainly some of both, but which is the ikar and which is the tafel?

To sum up, I have spoken to numerous colleagues, some with no beards, some with short ones and some with long ones (as well as with Rabbi Grylak). Many have said that renowned poskim have paskened that for frum policemen to issue traffic tickets and parking tickets is not mesira. The basic rational (for traffic violations at least) is that a bad driver is a rodef and is putting lives in jeopardy. A second rational is that by accepting a driver’s license and taking to the road, one is ipso facto consenting to abiding by the laws of the region and consenting (in advance) to pay fines for violating those rules. It is like an "unwritten” contract and contracts - even unwritten ones - are binding even by Torah law.

The second rational may explain why it’s muttar even if there are no safety concerns (and for parking violations), and  we can always throw in the old Ochel nefesh hetter that I discussed more than six years ago (click HERE). But, when I ask the trump question that I mentioned in my original post:

What happens when the driver does not concede that he violated any rules?

I always get a pause.
So, to Reb Y. I say, there may be numerous heteirim for a religious cop to issue tickets, but I still don’t think it’s a job for a nice Jewish boy.

Links about the United States Judicial System

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