Sunday, September 13, 2015

Mesira V: Mesira vs. Lashon Hara – What’s at Stake

Case 1 - The year is 2015 in Manhattan, NY. Moshe is employed by Finkelstein, a decent Jewish boss. But Moshe isn’t the best of workers. He slacks off a lot and abuses his computer privileges and his productivity is nothing to be admired. Yankel, who works long and hard, gets a bit irritated with Moshe and feels that Mr. Finkelstein should be aware of Moshe’s antics. So he informs Mr. Finkelstein about Moshe and Moshe gets fired or passed up for a raise.

How would we view the actions of Yankel?

I think most of us would agree that this is a classic case of Lashon Hara.

Case 2 - The year is 1941 in Mauthausen Concentration Camp. Moshe is assigned to quarry work under SS Guard Obersturmführer Frankenstein, a diabolical Nazi monster. But Moshe isn’t the best of slave workers. He slacks off a lot and hides whenever he can and his productivity is nothing to be admired. Yankel, who works long and hard, gets a bit jealous of Moshe and feels that Obersturmführer Frankenstein should be aware of Moshe’s antics. So he informs Obersturmführer Frankenstein about Moshe and Moshe is never seen again.

How would we view the actions of Yankel?

I think most of us would agree that this is a classic case of Mesira.

Wow, what a difference 74 years can make!

But, really, what is the difference? Why would we call the first case simple Lashon Hara but the second case we call Mesira? In both cases, Yankel did exactly the same thing! So what is the difference?

Well, there are some obvious differences. In the 2015 case the informee was a nice Jewish fellow. In the 1941 case the informee was a murderous gentile. Also, in the 2015 case, Moshe was being paid fair money to do the job he wasn’t doing. In the 1941 case, he was forced into unpaid slave labor.

But still, Yankel did the exact same thing in both scenarios. In both scenarios he was still Halachically improper, even in 2015. Yet we give these two scenarios different labels: One we call Lashon Hara and one we call Mesira. So what is really the difference?

The answer is: There really is no difference - except for the stakes.

What happened to the Moshe of 2015 was a slap in the wrist compared to what became of the Moshe of 1941. When the repercussions are exceedingly severe and disastrous, so is the infraction of the informer. And so, in a case where the stakes are high and are subjected to the graces of people who have no yiras shamayim, the Lashon Hara becomes Mesira.

Now, what happens in a middle-of-the-road case? The stakes are severe but not that high and are subjected to the graces of people who may have some yiras shamayim and are not monstrously harsh. Is this also Mesira?

Depends who you ask.

According to the Aruch Hashulchan, it may not be.

My distinguished friend, Reb K. showed me the Aruch HaShulchan in Choshen Mishpat 388:7. The Aruch HaShulchan says that “All who know history are aware that in previous times in distant lands a man had no security …from bandits and land grabbers and even today in the African countries this piracy is rampant…so it is with appreciation that we mention the European Kings and especially the Czarist regimes and the British kings that have spread their sovereign wings upon the distant lands (i.e., colonized) so that every man can be secure from such banditry …and on this revolves all of the laws of Moser and malshin in Shas and poskim …for one who is moser or malshin a person to one of these types of bandits is certainly considered a rodef and it is permissible to save the victim with the life of the moser.”

This passage is very hard to comprehend on numerous points.

Firstly, after investing a lot of ink to make a distinction between the bad old days and his times, he concludes by telling us when a moser is a rodef but does not really elaborate on when one is not. He praises contemporary Europe but falls short of exonerating them explicitly.

He goes so far as to name two of the praiseworthy regimes – Russia and Britiain, and I am scratching my head. The Aruch HaShulchan (Harav Hagaon Yechiel Michel Epstein, ZT”L) lived from 1829-1908. I must say that although he was a gaon in Halacha, I think for his history lessons he had a very short memory.
He praises Britain. Britain? Isn’t this the country that was known for over 200 capital offenses through the 18th century? They were hanging pickpockets and shoplifters until 1832 – three years after he was born. It took until 1868 before they abolished hanging for all petty crimes and just left murder and treason. This means that at least for some of his lifetime one could snitch on a pickpocket and he would swing.
And Russia? They had the Cantonist army laws until 1857 – 28 years after his birth. Just wiggle your finger at an 8 year old Jewish kid and the kid gets 25 to 30 years in Gehinnom. The Gedolei Torah of Russia dealt with no other subject than mesira. Mesira to who? To those thoughtful Russians!

So perhaps, because he first wrote Aruch HaShulchan in the 1880s and these wonderful countries had done teshuva for a whopping 25 years, they are now the champions of Human rights. But he wasn’t a prophet. We must note that the Aruch HaShulchan literally lived (in Lithuania) during the golden age of Western Europe and the “renaissance” of Czarist Russia. He passed away in 1908, 6 years before the ravages of WWI and 9 years before the Bolshevik revolution that brought about Lenin and Stalin and the purges and the gulags and Siberia and the KGB (and NKVD). This was also 9 years before the British Mandatory government where, despite all their previous teshuva, they went hanging any Jew who held a gun. Just tell the Brits that Dov over there is packing heat and Dov goes swinging (he actually did but I don't think  it's because anybody snitched on him). Twelve others went swinging, too. And then came the good ol' Gestapo. 
The Aruch HaShulchan missed all of the fun!
And throughout all of this, he does not even consider his brethren in Eretz HaKodesh who, for his entire lifetime, lived under the domination of the ultra-corrupt Turks. 

So I am not sure if Harav Epstein, ZT”L was here today and had a broader view of world history, that, in hindsight, he would write the same thing. In fact, I have a very strong feeling that even when he wrote it, he was playing for the audience. 

But, what’s most important, when he suggests a distinction that the laws of moser and malshin revolve around this, what laws does he mean? What are the laws of mesira?  Does he mean that it’s not mesira and it’s muttar l’chatchila? Is he saying that if Yankel snitches to the nice Humanistic Russians or Brits, that this is more lenient than him snitching to Mr. Finkelstein? All right, we know the Aruch HaShulchan did not always agree with the Chofetz Chaim on every psak in Orach Chaim but did he differ with him about anything in Shmiras Halashon? Has anybody differed with the Chofetz Chaim on Shmiras Halashon?

So we need to understand what mesira is. Mesira is an enhanced version of Lashon Hara. It is Lashon Hara with higher stakes.

Because of the higher stakes, there are more severe repercussions to mesira. The Shulchan Aruch mentions three:

  • The moser has no portion in the World to Come. Truthfully, there is no Hilchos Lashon Hara in Shulchan Aruch, only in Rambam Hilchos Deos (Chapter 7.) The Rambam writes there that one who speaks Lashon Hara likewise has no portion in Olam Haba. Nevertheless, the Rambam implies that this only applies to a “baal Lashon Hara” a repeat offender. The implication of the Shu”A (and Rambam) by a moser, is that one good mesira is all it takes.

  • The moser is considered a rodef and may be preemptively killed. We have no Halacha allowing us to kill a baal Lashon Hara.

  • The moser must, by force of Beis Din, reimburse the victim for whatever financial losses he incurred due to the mesira. This, by the way, is the intent of writing these Halachos in Choshen Mishpat. In any case, we have no such Halacha by Lashon Hara. In our 2015 scenario, there is no clear Halacha that Yankel will need to reimburse Moshe for his financial losses (though it would probably be a good idea for him to do so.)

So, basically, if Lashon Hara is a bowl of forbidden vanilla ice cream, Mesira is the chocolate syrup, whipped cream and cherry. It is plain vanilla Lashon Hara plus.  

Which means that even when a case of being Malshin (an umbrella term which more or less encompasses all levels of informing on somebody) doesn’t make the ugly grade of mesira, it is still never less than plain vanilla Lashon Hara. For, why should it be anything less?

And so, if it is not classified as mesira it may not be subject to the scary repercussions of losing Olam Haba, forfeiting one’s right to live, or having to reimburse the victim; but in what way does it become muttar? It's not less than Lashon Hara and is Lashon Hara ever muttar?

Well, the answer is: Yes, sometimes it is. We know that there are times when it is permitted to speak Lashon Hara and the prevailing condition is that it is a “toelles” meaning for the greater good.

But this is not the only condition. This is one of seven conditions. And the Chofetz Chaim tells us that all seven conditions must be met in order to permit Lashon Hara.

And so, informing on somebody can run a spectrum. At the worst extreme it is mesira. At the meekest extreme it is “merely” Lashon Hara. But it is never less.

And so the seven conditions always apply. Always.

Something to think about over Rosh HaShannah. After Rosh HaShannah we can finally examine the Heter Meah Rabbanim – the Kol Koreh of sweettorah.

May we all be inscribed in the book of life.

לשנה טובה תכתבו ותחתמו לאלתר לחיים טובים ולשלום.

תהא שנת עושר ואושר

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