Madoff sketch 88 248.
(photo credit: Bloomberg News)
Q If one has evidence against swindlers like Bernie Madoff, or a child abuser, can they report him to the government? - B.T., Ra'anana
A The recent perpetration of financial crimes and abuse scandals within our community clearly detracts from our mission as a "holy nation" and maligns the reputation of our religion, Torah and God (hillul Hashem). Our community's soul searching necessitates examining the laws of collaborating with government authorities, an issue which historically engaged Jews under frequently hostile rulers and deserves reexamination with the advent of the State of Israel and just democratic governments.
Since the abolition of the requisite judicial bodies during Roman rule, the Torah's laws regarding criminal sanction have been dormant for many centuries. Nonetheless, Halacha empowers sovereign rulers with the power of "the king's justice" (mishpat hamelech). As Rabbenu Nissim (14th century, Spain) explained, this mandate authorizes the king to serve as the head of the army and to administer penal laws necessary to maintain the social fabric (Derashot Haran 11). Following this logic, many religious Zionist jurists have contended that it empowers Israel's penal laws with halachic sanction.
The bearing of this power on non-Jewish sovereignties stems from the talmudic principle of dina demalchuta dina - the law of the country is the law" (BK 113a). Some sages based this authority on the sovereign's property rights and limited its applicability to financial arrangements, such as paying taxes (as "rent" to live in the territory). However, many scholars conceived this principle as a social contract that grants extensive powers to regulate social order.
The legal recognition of a gentile sovereign's penal laws was forcefully illustrated by the sage Rabbi Eleazar, who helped apprehend Jewish thieves in a tavern (BM 83b). When criticized by colleagues, he replied, "I eradicate thorns from the vineyard," emphasizing the importance of eliminating criminal behavior from the community. As Ritva (Spain, 13th century) elucidated, Rabbi Eleazar acted reasonably to enforce fairly enacted laws, even as his colleagues deemed it unbefitting for a scholar (shita mekubetzet).
The dominant assumption of ancient and medieval Jews, however, was that non-Jewish authorities, either as authorized government agents or as bandits protected by a badge, would not fairly treat Jews in legal disputes. As such, snitching was a considered a tort liable for compensation (BK 117a). More significantly, the Talmud authorizes immediate penal action, including the death penalty, against informers, who were deemed treacherous pursuers (rodef) since their actions physically endangered the alleged wrongdoer and possibly the entire community (Shu"t Rosh 17:1). Indeed, informants were categorized as traitors who deserved the same treatment as apostates (Avoda Zara 26b).
Significantly, informing remained permissible, even in medieval times, under a number of circumstances. When a Jew seeks to avoid paying money rightfully entitled to a gentile or governmental authority (like a debt or taxes), and a fellow Jew helps collect this money (with no further punishment, like incarceration), this remains permissible (CM 388:12), and at times becomes meritorious if one intends to sanctify the reputation of Judaism (CM 266). Similarly, one can inform on a Jew whose illegal actions cast under suspicion or physically endangers the broader community, or whose violence requires punitive enforcement (388:7).
As such, contemporary authorities like Rabbi Shlomo Auerbach and Rabbi Eliezer Waldenburg have ruled that one must inform the police regarding cases of domestic and sexual abuse in schools and homes, even if the victim will be placed under the care of nonreligious or non-Jewish facilities (Tzitz Eliezer 19:52).
As Rabbi Michael Broyde has documented (jlaw.com), contemporary decisors further debate whether these laws remain applicable in contemporary legal systems that do not regularly discriminate against Jews. Rabbi Ya'acov Breisch, writing in 1964, ruled that the regulations remain unchanged since the potential for anti-Semitism remains prevalent (Helkat Ya'acov CH 5), with Rabbi Y.Y. Blau more recently contending that deplorable prison conditions, including abuse by guards and fellow prisoners, makes incarceration unfair to all criminals. While recognizing the fundamental fairness of American courts, Rabbi Moshe Feinstein also deemed the law unaffected, as gentile courts regularly administer punishments, like incarceration, beyond those advocated by Halacha (Igrot Moshe OC 5:9).
Rabbi Hershel Schachter challenged this thesis, asserting that that Judaism recognizes the "king's power" to determine appropriate punishments for all behavior deemed criminal by Jewish law. Rabbi Shmuel Wosner further contends that all regulations authorized by the halachic principle of dina demalchuta dina do not fall into the category of informing (Shevet Halevi 2:58). I personally favor the position adopted by Rabbi Y.M. Epstein (Aruch Hashulhan 388:7), Rabbi Waldenburg and Rabbi Gedalia Schwartz, contending that many democracies administer law fairly, thereby rendering dormant all restrictions against informing.
Remaining watchful for individual cases of injustice in both courts and prisons, we can thank God for being citizens of countries that equitably treat Jews, including, alas, Bernie Madoff.
The writer, on-line editor of Tradition, teaches at Yeshivat Hakotel and is pursuing a doctorate in Jewish philosophy at the Hebrew University.
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