This post has been cross-posted to DovBear – more discussion there.
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.
To listen to the entire discourse online click here.