This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: JTA is reporting that a New York area rabbi has invoked Mesira as a legal defense. How is this concept reconciled with dina d'malkhuta dina? which conept is paramount?
Of course, to properly answer this question, it is important for us to clearly define these two Halachic (Jewish Legal) terms that are being introduced, namely mesira and dina d’malkhuta dina. However, prior to this, it may first be important to understand the context in which these terms are applied.
The ideal manifestation of the Jewish People is to live as an independent nation in the Land of Israel under the legal system of the Torah. It is important to recognize that Jewish Law is not just a system of religious law but that it is a full legal system upon which a Jewish society is to be based. Halacha, as such, touches upon all aspects of civil law, contractual law, taxation – the whole gamut of what is legally necessary for a well-functioning society. And we, the Jewish People, in our observance of Torah are ideally to be a well-functioning model society on our land.
Exile, as such, is not just a personal misfortunate that has tragically impacted negatively on Jews as individuals. Exile also had a communal impact in that our Jewish society was thereby placed in the midst of other societies – often other societies that not only did not share our value constructs but also were hostile towards us. The fact that our society was uprooted from our land and our independence, however, did not mean that we were to totally forsake any attempts to maintain our uniquely Jewish societal constructs to the greatest extent possible. With Exile, we were given the challenge of trying to exist as individual Jews under the pressures to conform from a greater population of non-Jews with different mores. We were also, however, given the challenge of maintaining, to the greatest extent possible, the constructs of a Jewish society with Torah as our legal backbone as we also exist within the confines of the host and dominant society.
So, one of the challenges facing the Jewish People in Exile is how they are going to survive as a corporate entity within the bosom of the corporate entity of the greater society. This may involve two distinct issues. One would be what to do to protect the community in the face of a hostile host society – for example, when the host society imposes unfair taxation demands upon its Jewish inhabitants. The other may be how to maintain the distinctive nature of the Jewish community and ensure, to the greatest extent possible, its unique value and legal perspective. Consideration must also, though, be made for the necessary well-functioning of the host society for reasons of law and order, in general and in regard to the Jewish community. Mishna Avot 3:2 instructs us to pray for the welfare of the government for without its proper functioning there will be mayhem. See, also, Yirmiyahu 29:7 in reference to Exile. We are to support the workings of the foreign society in which we find ourselves yet this should not be at the expense of our fair treatment and a proper expression of our uniqueness.
It is with an understanding of the tension of these directives that we can best understand the terms mesira and dina d’malkhuta dina. The former, mesira, instructs us not to give a Jew over to non-Jewish authorities. We can especially understand such a restriction if the host society is a hostile one and there is also concern that the consequences could be unfair both to the individual Jew and/or the Jewish community. This prohibition, though, may also extend to situations where the host society is not hostile; our concern, in such a matter, would be our desire to deal with the matter within our own Jewish perspective. Mesira, though, is not a blanket prohibition. At the same time, there would be cases where it would even be our obligation to assist the authorities in capturing and convicting even a fellow Jew – such as in the interests of law and order if this person was a violent criminal. This, of course, is only a very brief introduction to the concept and issue of mesira. There are many other factors that may be involved in responding to a query as to when a prohibition of mesira is applicable and when it is definitely not. Bottom line, it is a balancing of considerations between maintaining support of the functioning of our host society while also maintaining a certain level of our unique independence.
It is a similar balancing of values that is represented in the concept of dina d’malkhuta dina, which translated simply means that the law of the land is the law, namely that Halacha recognizes the law of the host country as binding. This construct, though, clearly has its limitations. If, for example, the law of a host country outlawed circumcision, Halacha, clearly, would not accept it; Jewish law would not respect as binding a law of the host country of this nature. Basically, this maxim concerns monetary matters and in its most restrictive interpretation applies to taxation, that the tax laws of a host society, if just, are binding on the Jewish community. The maxim in its most limited understanding basically instructs the Jewish community that we are to consider the laws of a host society, that are enacted to promote the proper functioning of the society, to be considered binding as well by Jewish Law. As a first extension from taxation, this would also apply to enactments for law and order. There are further understandings of this maxim that also declare it applicable in other, essentially monetary, matters. A contravening value consideration to this may be our desire to maintain the uniqueness of our Jewish perspective. With this in mind, there may be some argument to limit the application of the laws of the host society. Bottom line, again, it is a balancing of considerations between maintaining support of the functioning of our host society while also maintaining a certain level of our unique independence.
To further investigate the details of these two principles, I would direct you to the following:
Rabbi Hershel Schachter, “’Dina De’Malchusa Dina’: Secular Law as a Religious Obligation”, The Journal of Halacha and Contemporary Society 1:103;
Rabbi Simcha Krauss, “Litigation in Secular Courts”, The Journal of Halacha and Contemporary Society 3:35;
Rabbi Michael J. Broyde, “The Practice of Law According to Halacha”, The Journal of Halacha and Contemporary Society 20:5;
Rabbi Michael J. Broyde, “Informing on Others for Violating American Law: A Jewish Law View”, The Journal of Halacha and Contemporary Society 43:5.
Of course the first article deals directly with dina d’malkhuta dina while the last article deals directly with mesira.
Returning to the original question, we see that at issue is really this balancing of considerations. Mesira may be the term that is used to reflect the value in maintaining the independence of the Jewish community which may include a concern that Jews may not be treated fairly by members of the host society. Dina d’malkhuta dina may be the term that is used to reflect the value of respecting the laws of the land and the call to be good citizens especially in a land that not only has not been hostile to the Jewish community but has even been welcoming and supportive. Without knowing the specific case to which this rabbi made this statement, it is difficult to actually comment on the rabbi’s position. Similarly, it is difficult to state unequivocally that dina d’malkhuta dina clearly applies. I can only say that in regard to most of the recent cases where I have heard of such arguments, an argument of mesira would clearly not be normative. Considerations for the defaming of God’s Name (chilul Hashem) also are to become a factor in limiting charges of mesira. We are called upon to be good citizens – good members of the nation in which we live. We are also called upon to be good Jews – good members of the Jewish nation. The answer is not to pick one over the other but to attempt to accomplish both. In an environment where this would be possible, this clearly must be our goal.