THE TIKVAH CENTER FOR LAW & JEWISH CIVILIZATION Moshe Halbertal Professor J.H.H. Weiler Directors of The Tikvah Center Tikvah Working Paper 09/11 Saul J. Berman The Boundaries of Loyalty: Testimony Against Fellow Jews in Non-Jewish Courts NYU School of Law New York, NY 10011 The Tikvah Center Working Paper Series can be found at http://www.nyutikvah.org/publications.html All rights reserved. No part of this paper may be reproduced in any form without permission of the author. ISSN 2160‐8229 (print) ISSN 2160‐8253 (online) Copy Editor: Danielle Leeds Kim © Saul J. Berman 2011 New York University School of Law New York, NY 10011 USA Publications in the Series should be cited as: AUTHOR, TITLE, TIKVAH CENTER WORKING PAPER NO./YEAR [URL] The Boundaries of Loyalty THE BOUNDARIES OF LOYALTY: TESTIMONY AGAINST FELLOW JEWS IN NON-JEWISH COURTS By Saul J. Berman Outline - Table of Contents Page Introduction …………........................................................................................................................................3 I. The Use of Non-Jewish Courts: The Tannaitic Period ………..………………………………………….……...4 A. Litigation in Non-Jewish Courts …………………………………..…………………………………………………4 1. As To Fact Finding ……………………………..………...…….………………………………………......6 2. As To Execution of Judgment ……………..………………….…………………………………………8 3. As To Determining the Rules Applicable to the Facts (Judging)…………………………...10 B. Testimony in Non-Jewish Courts: Advantaging Testimony on Behalf of a Jewish Party….....13 1. To Achieve “Religious Rescue” ………………………..……………………………………………....14 2. Limits on the Duty to Testify: The Duty to Testify as Loyalty…………………….……..….15 3. Preferential Treatment of Fellow Jews ………………..………………………………...…………18 II. Legislative Constraint on Testimony: The Amoraic Period ……………………………………………..…….18 A. The Amoraic Legislation ………………………………………………………………………………………....….19 1. The Authority of the Teaching – The term Machriz ………………………………………......20 2. The Legal Constraint on Testimony ………………………….………………………………………22 3. The Role of Subpoena …………………………………….…………………………………………….…23 4. “Magista” Courts and “Dawar” Courts ……………………………………………...…………..….24 5. Literary Structure of the Passage ………………………….……..…………………………………..27 B. Later Amoraic / Stammaitic Limitations on the Constraint …………...……………………………….31 1. The Original legislation of Rava …………………………....…..............................................31 2. The First Limitation and the Rationale of Rava: Economic Injury Not in Accordance with Jewish Law (1) ……………………………..32 3. The Second Limitation and the Rationale of Rava: Disparate Outcomes (1) ………….……………..…….……..............................................33 4. The Rationale of Procedural Injustice (2) ………….………….…................................34 III. Further Possible Rationales of Testimonial Restriction: The Gaonic Period into the Period of the Rishonim ….…………….…................................................38 A. As Extension of the Ban on Litigation – “Lifneihem” ………..…………………………………………...39 1. Rejection of the Theory by Rabbenu Nissim ……….……………………………………………..39 Berkowitz Fellow at The Tikvah Center for Law and Jewish Civilization at New York University School of Law (2009-2010.) Associate Professor of Jewish Studies at Stern College of Yeshiva University. Adjunct Professor at Columbia University School of Law. I am indebted to Professors Joseph Weiler and Moshe Halbertal for the opportunity to spend this academic year as the Berkowitz Fellow at the Tikvah Center; to all of the extraordinary scholars who served as Tikvah fellows with me; and particularly to Professors Aharon Shemesh and Adiel Schremer whose breadth of knowledge and insight in primary and secondary sources in Jewish Law enriched me enormously. 1 2. Basis of the Inapplicability of Lifneihem …………………….............................................40 a. Permissibility of Litigation Between Jew and Non-Jew in Non-Jewish Courts …………………………………................................................40 b. Permissibility to Testify in Honest Non-Jewish Courts ……………………………..42 c. Absence of Challenge from the Tosefta Text ………...………………………………....44 B. The Law of Mesirah (Handing Over/Collaboration) (4)…………………………………………………..45 1. Mesirah in Biblical Naratives …………………………………………………………………………...45 a. The Case of Samson ……………………………………………………………………………....45 b. The Case of Sheva ben Bichri …………………………….…………………………………...46 c. The Case of the Seven Sons of Saul & the Gibeonites ……….………………………..47 2. Mesirah in the Talmudic Era ……………………………….…………………………………………….51 a. Mishnah and Tosephta ………………………………..…………………………………………51 b. Palestinian Gemara …………………….…………………………………………………………..56 3. Approach of Rambam: Distinction Between Religious Oppressor, Violent Criminal and Government …………….……………………………………………………………………………….59 a. Mesirah and Kiddush Hashem …………….…………………………………………………..59 b. Mesirah and the Law of Damages ……….…………………………………………………..62 4. Is the Prohibition Against Mesirah Based on The Duty of Rescue? (The Limits of Loyalty to the Lives of Fellow Jews)…………………………………………………………………..68 5. On The Inapplicability of the Law of Mesirah to Testimony in Non-Jewish Courts (Rashba and Rambi)………………..…………………………..…………………………………………..73 6. Summary of the Elements of the Crime of Mesirah ……………………………………………..79 IV. Creation of A Duty to Testify Against Fellow Jews in Non-Jewish Courts: The Period of the Rishonim…………………………………………………………………………………………………81 A. To Avoid Chillul Hashem (Desecration of God’s Name) ……………………………………….………....81 1. The Biblical Texts of Chillul Hashem …………………….…….…………………………………….83 2. Rambam on Chillul Hashem …………………………………………………………………………….86 3. Ra’avad’s Use of Chillul Hashem ………………………..……………………………………………..92 4. Chillul Hashem as a Factor for the Rishonim of Ashkenaz ………………………………….99 B. To Prevent a Fellow Jew from Perpetrating a Crime (Chiyuv Lehafrisho min HaIssur)……..108 C. When Required to Testify by Non-Jewish Law . …………………………………………………………….117 D. To Avoid Monetary or Bodily Penalty for Refusal to Testify...................................................127 Outline of the continuation of the work: E. If his Refusal or Failure to Testify would Threaten the Security or the Economic Well Being of the Jewish Community (And herein an alternative proposal for the interpolation into the Talmudic text of the words “ve’lo teva’o,” requiring testimony in case of issuance of a subpoena.) Rosh, Tur, Yam Shel Shlomo et al. V. Further Expansion of The Duty to Testify Against Fellow Jews in Non-Jewish Courts in the Period of the Acharonim: i.e. Under what Additional circumstances could Testimony in an Honest Non-Jewish Court be Required by Jewish Law (and Testimony then be Permissible Even in Corrupt Non-Jewish Courts) ? A. If the Testimony is Itself Not Definitive and Not Determinative of the Outcome R. Yaacov Emden B. If the Jewish Party had Agreed at the Outset to Adjudication in the Non-Jewish Court R. Yonatan Eibeschutz VI. Contemporary Attempts to Revert to the Original Law of Rava: i.e. to Limit the Permissibility to Testify Against Fellow Jews in All Non-Jewish Courts 2 The Boundaries of Loyalty Introduction I first became interested in the issue which is the subject of this paper in April 1975. At that time, the New York Special Prosecutor for Nursing Home Investigations, Mr. Charles Hynes, had empanelled a grand jury to hear evidence concerning Bernard Bergman, an owner and operator of nursing homes, who stood accused of various illegal acts. A woman employee of the Towers Nursing Home was subpoenaed to testify concerning allegations of financial improprieties affecting government reimbursement of nursing home expenses. She filed a petition to the court claiming that she should be exempt from the duty to testify on the grounds of her constitutional guarantee of freedom of religion. She claimed that under Jewish Law she was forbidden to testify against a fellow Jew in a non-Jewish court, that to do so would constitute a violation of the Jewish Law against Mesirah, “informing,” and would subject her to effective excommunication from her Orthodox Jewish community. The court heard oral argument on the issue, including the testimony of experts in Jewish Law, and rejected the plea, ordering the witness to testify.1 Reading the reports of these events in the newspapers raised a set of questions in my mind. On one hand, the horror of informing against fellow Jews is a profoundly deep sensibility in Jewish life and literature. The central Jewish liturgical text of daily prayer, the Amidah, had been fixed containing eighteen blessings almost 2,500 years ago. Through that entire period of time, the only blessing added to it, making for nineteen blessings in the Amidah, was the special blessing requesting divine protection of the Jewish nation against informers.2 Beyond that, Jewish Law seemed to provide for the summary execution of informers without the usual standards of evidentiary process and other judicial procedures mandated in the protection of the lives of criminals.3 And a Midrashic text says it all. When the Israelite nation lost the war against the city of Ai, Joshua challenged God to explain why the assurance of Jewish conquest of the Land of 1 New York Times, April 30, 1975, p. 81, “Ex-Bergman Aide Declines To Talk.” 2 Berachot 28b, Rambam, Mishneh Torah, Tefillah 2:1; and end of Sefer Ahavah, Seder Tefillot Kol Hashana, Nusach Birchot Hatefillah Vesidduran, no. 12. 3 Tosefta Bava Metziah 2:33. Rosh Hashana 17a. Abraham A. Rapaport, The Informer in Jewish Literature (Until the End of the Geonic Period), Unpublished Doctoral Thesis,