Showing posts with label Mesira. Show all posts
Showing posts with label Mesira. Show all posts

Friday, September 09, 2011

Law and Religion News.

Court hears argument on issue of whether rabbi can be forced to testify against members of his congregation.

Apparently, there is a Jewish concept/doctrine of "mesira" under which a Jew is forbidden from testifying against other Jews.  The case sounds like (a) an interesting twist on the debate over recognizing sharia in Western legal systems and (b) a patented way for someone involved in a criminal conspiracy to avoid "ratting out" other criminals:

A federal court judge said she will rule at a later date in the case of a Chasidic Jew who will not testify because he says it would violate "mesira," the injunction against turning Jews over to non-Jews.

Margaret Morrow of the U.S. District Court in Los Angeles heard arguments Wednesday in the case involving Rabbi Moshe Zigelman. Prosecutors want Morrow to imprison Zigelman for contempt unless he testifies against others in an alleged tax fraud scheme that involved his Spinka sect, The Los Angeles Times reported.

Zigelman, an executive assistant to the sect's leader, already has served a 2-year sentence for his role in the scheme, which involved soliciting large tax-deductible donations and secretly funneling most of the money back to the donors.

Zigelman, 64, says his testimony would violate "mesira," although most modern scholars say it applies only in regimes that oppress Jews.
One can see how the idea of mesira would work to prevent the complicity of Jews in oppressing fellow Jews in unjust systems, and one can see how it could be used as a scam for the community to protect Jewish criminals.  Apparently, this is a discussion that is going on in the Jewish community:

The topic of mesira is complex. I do not claim expertise on the subject of who is a moser, but I have heard a discourse from an expert on Jewish and American Law named Rabbi Breitowitz. Aside from teaching law at University of Maryland, Rabbi Breitowitz is a practicing Rabbi in Silver Spring Maryland. When I lived in Baltimore, I heard Rabbi Breitowitz speak on the topic of mesira and I was able to find the same speech online to refresh my memory.

This is my basic understanding of his take on mesira.

He mentions three contemporary positions, Reb Moshe Feinstein, the Aruch HaShulchan and Rav Wosner.

He begins with Reb Moshe. Reb Moshe holds that there is a prohibition of mesira when the secular punishment is worse than the Torah’s punishment. A moser has a halachic status of a rodef, one who is trying to kill another, and must be stopped from his mesira. There are 3 big exceptions. 1) When the person about whom the moser is speaking of is a rodef himself. This is because a person who kills a rodef is not a killer nor is his act of attempting to kill the rodef is not considered a rodef. As an aside, a sexual or physical abuser is considered a halachic rodef and thus there is no prohibition of mesira in those situations. 2) If the moser is preventing a major communal disaster then there is no prohibition. 3) If it one’s job to inform, then mesira will not apply.

This is the most narrow view of when one is permitted to be moser that Rabbi Breitowitz mentions.

The Aruch Hashulchan says in a footnote to section 318 in Choshen Mishpat that in a benevolent and fair country where there is a justice system that does not unfairly imprison Jews, one is not guilty of mesira by informing the government of a fellow Jew’s crimes. He continues by saying “for example in wonderful Czarist Russia”. There is a question as to the seriousness of this footnote as he could not have possibly meant that Czarist Russia was fair and benevolent. The question is whether the entire footnote has value or if the entire thing was a false gesture of good faith to the Czar. It is not likely that the Aruch Hashulchan would add a deliberately misleading footnote and the reasoning of his footnote stands whether his country was wonderful or not. Thus, the Tzitz Eliezer holds that the Aruch Hashulchan means that wherever there is a “procedural justice” there is no mesira.

The third opinion is that of Rav Wosner. His approach integrates the rules of dina d’malchusa dina with mesira. His reasoning is that when the non-Jews follow the Noachide law of creating a set of laws it becomes a halachic basis for the Jew to obey those laws. Thus, he concludes that it cannot be possible to violate the prohibition of mesira if one is following the laws of their country. Since, he must follow the laws of that country his mesira is not against halacha. This does not mean one is required to be a moser, rather the reporting is not a violation of mesira.

It is necessary to define when dina d’milchusa dina constitutes to determine when mesira is not prohibited according to Rav Wosner. The Mechaber says that dina d’malchusa dina is limited to government interests. The Rama disagrees and says that it applies to anything that is designed to promote the well being of society. Most poskim agree with this definition which includes but is not limited to, criminal law, minimum wage laws, environmental laws and child labor laws.

In conclusion, mesira is a term bandied about to protect our own criminals. In reality, it is very difficult to pin down a halachic moser according to the Aruch Hashulchan or Rav Wosner and although it is possible according to Reb Moshe to be a moser it is still unlikely. We need to be honest with ourselves and stop hiding behind archaic halachic terms to justify false ideas.
I have not a clue what a "moser" or a "rodef" is, but the last position sounds like the American Constitutional approach of requiring that religious expression retreat in the face of laws of general application.
N.B.:  A "moser" is an "informer."

An informer, denunciator, or delator; synonyms are "masor" (abstract, "mesirah"), "delator" (), and "malshin" (abstract, "malshinut"), from the last of which are derived the Portuguese "malsim," and also the Spanish "malsin," together with the adjective "malsinar" and the abstract nouns "malsindad" and "malsineria." Nothing was more severely punished by the Jews than talebearing; and no one was held in greater contempt than the informer. On account of the fact that his deeds frequently caused mischief and even entailed death and destruction, the sages of the Talmud compared the "moser" to a serpent.
A rodef is someone who is plotting the murder of someone else.

A rodef (Hebrew רודף, lit. "pursuer"; pl. רודפים, rodefim), in traditional Jewish law, is one who is "pursuing" another to murder him or her. According to Jewish law, such a person must be killed by any bystander after being warned to stop and refusing. The source for this law is the Tractate Sanhedrin in the Babylonian Talmud, page 73a, which begins:

And these are the ones whom one must save even with their lives [i.e., killing the wrongdoer]: one who pursues his fellow to kill him [rodef akhar khaveiro lehargo], and after a male or a bethrothed maiden [to rape them]; but one who pursues an animal, or desecrates the Sabbath, or commits idolatry are not saved with their lives.

This law, the din rodef ("law of the pursuer"), is significant as one of the few provisions in Jewish law permitting extrajudicial killings.
The allowance to kill the rodef does not apply, however, in a case where lesser means would prevent the innocent's murder.[1] Furthermore, according to the Rambam, killing a rodef who may have been stopped by lesser means constitutes murder, though the punishment for a murderer in this case is not dealt out by Beit din.[citation needed]
"Mesira" seems to refer to the rules about the treatment of "mosers" under Jewish traditional law, which at time looks a lot like the rules that the Mafia employs:

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

What's interesting is that it seems that Christian monarchs granted legal status to Jewish communities to apply the mesira, which would seem to run counter to their own interests, and contradicts the trope of unremitting Christian oppression of Jews during the Middle Ages:

In the statutes signed by the communities of Catalonia and Valencia Sept. 25, 1354, the extermination of informers was made a public duty, in the accomplishment of which every one was required to render his utmost assistance ("He-Ḥaluẓ," i. 22 et seq.). This resolution was also adopted by the representative of the Jews of Majorca, where, as a result of the representations of the leader of the community, King Sancho in 1319 issued an order banishing forever from the island all Jews who were proved to be informers or disturbers of the peace ("Boletin Acad. Hist." xxxvi. 133, 143). The Jewish community of Tudela, the largest in Navarre, in March, 1363, passed a resolution (which was renewed fifty years later for a further period of fifty years) to proceed against informers with all possible severity. Any person, whether Jew or Jewess, who should be convicted of being a calumniator of or informer against the congregation or any of its members was to be excommunicated in all the synagogues of the city for a period of fifty years, during which time he or she was not to be tolerated within the city. The informer was also to pay into the public treasury a fine of 1,000 gold maravedis (Kayserling, "Gesch. der Juden in Spanien," i. 76 et seq., 206 et seq.). The execution of a death-sentence pronounced by a Jewish court could take place only with the king's consent and through the royal alguazil (hangman).

The execution of Joseph Pichon (receiver-general of taxes, who was accused of being an informer), for which the sanction of King John I. of Castile had been obtained on his coronation-day, Aug. 21, 1379, was of incalculable importance for the Jews of Spain, and was the main reason why the Jews of Castile were deprived of jurisdiction in criminal cases. The measure passed in 1363, which remained in force for only a few decades, did not contribute much toward frightening informers. On the contrary, they multiplied to such an extent that in the statutes adopted at the meeting of communal representatives convened by the court rabbi Abraham Benveniste at Valladolid in May, 1432, a whole chapter was devoted to informers.

Jurisdiction over Informers.

It was due to Benveniste, who stood in high favor with the then all-powerful Alvaro de Luna, that King John II. again conceded to the Jews the right to decide criminal cases. In the last-mentioned statutes it was stipulated that each case of talebearing through which a Jew or a Jewess might have suffered injury was to be punished with ten days' imprisonment and a fine of 100 maravedis, if no Christian was present when the delation took place. The fine was to be doubled if the crime had been committed in the presence of a Christian. When one was convicted of informing, he was branded on the forehead with a red-hot iron; if he were convicted of treason three times on the testimony of two trustworthy witnesses, the court rabbi was required to bring about his execution at the hands of the royal alguazil. Did the informer escape, so that he could be neither killed nor branded, he was proclaimed in all places as a traitor, completely excommunicated from the community of Israel, and stigmatized as "blood-shedder" or "villain" (see the statute in "Jahrbuch für die Gesch. der Juden und des Judenthums," iv. 307). In northern Africa, as in Castile, the law was visited upon informers in all its severity. Simon ben Ẓemaḥ Duran and his son Solomon passed sentence of death unhesitatingly upon moserim.
While we're at it, the story of John Pichon is interestingly, horrifingly, weird:

Henry had died in the meantime, and his son, John I., was his successor. Many rich and influential Jews had gathered from different parts of the country for the auction of the royal taxes at Burgos, where the coronation of John took place. These Jews plotted against the life of Pichon, who was very popular among the Christians and who had received marked attentions from the courtiers. It is not known whether he is in any degree to be blamed for the extraordinary tax of 20,000 doubloons which Henry had imposed upon the Jews of Toledo; but, however this may have been, some prominent Jews, representing various communities, went to the king on the day of the coronation, and, explaining to him that there was among them a "malsin," i.e., an informer and traitor who deserved death according to the laws of their religion, requested him to empower the royal officers to execute the offender. It is said that some minions of the king, bribed by the Jews, induced John to give the order. The delegation then took this order, together with a letter from several Jews who were the leaders of the community, to Fernan Martin, the king's executioner. The latter did not hesitate to fulfil the royal command. At an early hour on Aug. 21, 1379, he went with Don Zulema (Solomon) and Don Zag (Isaac) to the residence of Pichon, who was still sleeping. Pichon was awakened on the pretext that some of his mules were to be seized; and as soon as he appeared at the door Fernan laid hold of him and, without saying a word, beheaded him.

The execution of Pichon, whose name had been concealed from the king, created an unpleasant sensation. The monarch was exceedingly angry that he had been inveigled into signing the death-warrant of a respected and popular man who had faithfully served his father for many years. He had Zulema, Zag, and the chief rabbi of Burgos, who was in the plot, beheaded; and Martin was to have shared the same fate, but was spared at the intercession of some knights. He, however, paid for his hastiness in the affair by the loss of his right hand. As a consequence of Pichon's execution, the Cortes deprived the rabbis and the Jewish courts of the country of the right to decide criminal cases. The affair had the most disastrous consequences for the Jews of Spain, stimulating the hatred of the population against them, and contributing to the great massacre of the year 1391.
So, Pichon was executed under an anonymous writ for being an informer under Jewish law because other Jews had informed on him. It seems that the whole idea of "mesira" was intended to prevent that kind of division of the Jewish community in the face of Christians.
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