Reporting and Prosecuting Jewish Criminals

Regarding Rabbi J. Simcha Cohen's "Reporting and Prosecuting Jewish Criminals: Halakhic Concerns", in Conversations Issue 3 (Winter 2009/5769):

Rabbi Cohen, marshaling a variety of arguments, shows that reporting Jewish criminals to the non-Jewish authorities is a mandatory deed by any religious Jew. (I find it interesting that Rabbi Cohen never mentions whether the non-religious courts in Israel are halachically considered to be Jewish or non-Jewish, vis a vis the prohibition of mesira. I assume that they are non-Jewish, and that "Jewish" really means "halakhic"; to the earlier authorities, the concept of a non-religious Jewish court would have been inconceivable, and I assume that they would have considered Israeli courts to be non-Jewish, had the notion ever occurred to them.)

Rabbi Cohen prefers to defend mesira on the grounds of hillul hashem: to be silent about Jewish criminals will send the message that the religious Jewish community is not concerned about criminals in its midst. However, though this argument is valid, I'd personally be reticent to depend on it as the primary argument. If, in fact, we are truly not intrinsically concerned about Jewish crimes against non-Jews, then indeed, hillul hashem is our only argument; it is not that the Jew really deserves to be turned over to the secular authorities, but rather, for the sake of appearances, mishum eiva, we must turn him over. If this is one's view of gentiles, then this view will not meet with any opposition. Rabbi Cohen never himself implies as much, and I am not attributing this opinion to him, but nevertheless, it appears to me to be the logical implication of hillul hashem: it is not intrinsically problematic, and but for the fact that non-Jews will find out, there'd be no issue. In fact, Rabbi Cohen raises the possibility that in some circumstances, if non-Jews will indeed never find out, then there is no issue of hillul hashem, and no permission to violate mesira. Rabbi Cohen rejects this, however, saying that inevitably, the truth will become known, one way or another. Apparently, there is no intrinsic immorality of not informing the secular authorities, and so hillul hashem, on the fear (inevitability) of non-Jews finding out, is Rabbi Cohen's preferred (though not only) argument. I am sure Rabbi Cohen did not intend any disparagement of non-Jews in this, but to me, the logical conclusion (which I am sure Rabbi Cohen has not come to) is that but for the non-Jews finding out and causing a scandal, we have no moral qualms about not informing them of Jewish crimes.

But if one has a different view of non-Jews, then this approach will utterly untenable. And given that "all the gedolim", including Rabbi Hirsch, Rabbi Kook, Rabbi Yehiel Yaakov Weinberg, Rabbi Ahron Soloveichik, Rabbi Yitzhak Herzog, and Rabbi Yosef Eliyahu Henkin, all paskened Meiri as halacha l'maaseh (see Rabbi Dr. David Berger, "Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts", in Formulating Responses in an Egalitarian Age, ed. by Marc Stern, Lanham, 2005, pp. 83-108.), this alternative view of the gentile is clearly the correct one. It must be that to avoid punishing the Jew's crimes against the gentile, is intrinsically unethical, regardless of whether the non-Jews will ever find out, regardless of any hillul hashem.

Rabbi Cohen brings the Arukh HaShulhan (Hoshen Mishpat 388:7) as saying that mesira is prohibited only in such governments as are not governed by the rule of law; the Arukh HaShulhan offers (then-)contemporary Britain as an example, and presumably, all contemporary Western democracies would likewise qualify. However, Rabbi Cohen is obviously reluctant to rely on this ruling: he states later, "[U]nless one held the position of the Arukh HaShulhan - that the concept of mesira was not applicable in democratic societies - there does not appear to be any halakhic permission to report to the police and the secular government a crime that already took place [i.e. and the only purpose is to punish punitively; elsewhere, we saw from Rabbi Cohen that the Shakh as holding that to prevent future abuse, mesira is permitted, even in totalitarian non-rule-of-law societies]..." I am puzzled by Rabbi Cohen's reluctance; to me, this ruling is verily a G-dsend.

It seems to me personally, that based on the concept of "Mensch-Yisroel", "אתם קרואים אדם" (see: (1) Rabbi Shelomo Danziger,“Rav S. R. Hirsch – His תורה עם דרך ארץ Ideology”, in מורשת צבי The Living Hirschian Legacy. New York/Jerusalem: Feldheim, 1988.; (2) Rabbi Shimon Schwab, Elu v'Elu – These and Those, New York: Feldheim, 1966.; (3) Rabbi Dr. Mendel Hirsch, “Humanism and Judaism”, in Fundamentals of Judaism, ed. Jacob Breuer, New York: Feldheim.; (4) Rabbi Yuval Cherlow, "The Torah and the Natural Ways of the World, Conversations, Issue 3, Winter 2009/5769), a non-Jewish court is, despite our general (but erroneous, as far as I can determine) understanding to the contrary, still applicable to a Jew. That is, Jews are still humans, and Jewish citizens of a non-Jewish society are still accountable to the local non-Jewish court, just as all human citizens of that locale are. (And cf. Rabbi Mayer Schiller, "The Forgotten Humanism of Rabbi Samson Raphael Hirsch", regarding the patriotism a Jew ought feel towards his host non-Jewish society.) True, Jews received a special status at Sinai, but the non-Jewish courts were not affected by that revelation, and they lost none of their authority. I cannot conceive then, of any reason why, from the ikkar din, why a non-Jewish court would not have jurisdiction over a Jew. Even if the non-Jewish court will impose a more severe punishment than halakha would dictate (a topic that Rabbi Cohen deals with), the fact is that non-Jewish courts have a mandate to impose whatever punishment is deemed proper, even up to and including death (Rabbi Ahron Soloveichik, Rabbi J. David Bleich, Rabbi Moshe Feinstein, Rabbi Yoav Yehoshua's Chelkat Yoav Tanyana 14, all interpreting the Talmudic death sentence for a Noachide, not as a mandate, but as a permission; see http://www.wikinoah.org/index.php/Capital_Punishment_in_Noahide_law). If so, our concern would not be that the Jew is punished beyond halacha, but rather, that he is punished beyond the rule of law. That is, if Jewish law determines that theft is punished by double-restitution, while the non-Jewish courts determine that imprisonment is necessary, for some legitimate reason that qualifies as equitable "rule of law", I cannot see why Jewish law would protest. Surely, we must protest, with Rabbi Dr. J. H. Hertz, Rabbi Isidore Epstein, and Rabbi Ahron Soloveichik, the imposition of death for theft (such as was done by British courts, even for pittances), but this because it is immoral and against equitable "rule of law", not because it violates halakhah per se. If so, then the Arukh HaShulhan has amply solved our dilemma: so long as the non-Jewish court is governed by equitable rule of law, then the principle of mesira does not apply at all, whatsoever, end of story.

I will go further. So far, we might suppose that all my words apply only when the beit din lacks jurisdiction to punish; even if the non-Jewish court is governed by equitable rule of law, we'd still prefer, of course, to punish by what halakha dictates; only because the beit din lacks power, however, do we reluctantly (but permissibly) turn to the non-Jewish courts. But I wish to question this assumption, at least in one case: what of when a non-Jew is party to the proceedings, i.e. we are dealing with a Jewish criminal who has harmed his gentile victim? Obviously, when two Jews are involved, we'd prefer to turn to the beit din, and only because the beit din lacks power, do we utilize the Arukh HaShulhan's permission. But what about when a non-Jew is involved? It seems to me, that if the beit din does in fact have power, and we turn to the beit din to punish, this is unfair to the non-Jewish party. The non-Jew has no relevance to a Jewish court (except in Eretz Yisrael, where this non-Jew will be a ger toshav, and liable to the rulings of a beit din, bimheira b'yameinu), and it is unfair to bring him to Jewish court. In other words, it seems to me, that when a non-Jew is involved, and the non-Jewish court is an equitable one following the rule of law, it is preferable that we utilize the non-Jewish court, even were the beit din to have power in this instance! The non-Jewish court at least has some relevancy to the Jew, being that the Jew is a human; but since the reverse is not true, a beit din has no relevancy to a non-Jew, except where the locale is a Jewish one, and the Jewish court is itself the dina d'malchuta dina.

I will go even further. We know, of course, that the Talmud and Midrashim extensively debate the Noahide laws. It has long appeared to me, however, that this is all theoretical, except for a ger toshav who has pledged allegiance to the Jewish courts. We know that for a Jew, regardless of what G-d actually said in His revelation, the Torah "is not in Heaven", and we must decide by "the court that will be in that generation". However, a non-Jew has no such obligation. If G-d said X to Noah regarding the Noahide laws, and the Jewish authorities interpret this as meaning Y, only a Jew, not a non-Jew, is obligated to hold by the Jewish authority's declaration of Y; the non-Jew may for himself decide what G-d meant by X. So if, for example, we (the Jews) interpret G-d's command to Noah to refer to ever min HaHai, but the Noahide interprets this k'fshuto as forbidding the consumption of blood per se, I cannot imagine why this non-Jew cannot follow his own interpretation of the law. After all, he is not obligated to follow the rabbis when they declare right to be left and left to be right; for him, it is "in Heaven", or, if "it is not in Heaven", it is not in the rabbis' power either, as far as he is concerned. I realize why words will strike many as utterly radical, even almost heretical. I assume that my understanding is one that has come from academically analyzing Jewish law from the outside, rather than appreciating it from the inside, as most authorities have done historically. However, from the high amount of influence I've had from Rabbi Moshe Shmuel Glasner (see an abridged translation of his work on the Oral Law, by Rabbi Dr. Yaakov Elman, "Rabbi Moses Samuel Glasner: The Oral Torah", Tradition 25(3), Spring 1991, pp. 63-69), Rabbi Dr. Eliezer Berkovits (Rabbi Glasner's son's student), and Rabbi Dr. Isidore Epstein (see my "Rabbi Dr. Isidore Epstein on the Oral Law"), this is the truth as it appears to me.