Mesirah and the AFP’s War on Drugs
The Jewish law of ‘mesirah’ – the prohibition against handing a fellow Jew over to secular authorities – has been under the spotlight in the current Royal Commission hearing, with Rabbis being probed as to their own interpretations and practices.
David Werdiger
Despite statements from the Rabbinic Council clearly stating that there is no halachic restriction from reporting child sexual abuse to the police, the culture of ‘dealing with our problems internally’ is still well-entrenched, and will take more than Rabbinic or pulpit statements for that to change.
While it might seem unrelated, The Saturday Paper attacked the Australian Federal Police (AFP) for their role in the upcoming execution of two Australian members of the Bali Nine gang of heroin smugglers (Fairfax Media also picked up the story). They claim that the AFP was warned that Scott Rush was on his way to Bali intent on being a drug mule. Instead of warning him off, the AFP allowed him to fly to Bali, then wrote to the Indonesian National Police (INP) tipping them off with details of the planned drug importation scheme. Two weeks later, the Australian mules were arrested at Denpasar airport, as were the other conspirators.
There are lots of questions: was it was appropriate for the AFP to warn off an Australian before he even committed a crime? Is this the task of a police force – to warn citizens who they suspect may be about to commit a crime of the consequences of their actions? If they had warned him off, the operation may have been cancelled, but surely the conspirators would just try again. What would you rather: a handful of high-level drug dealers and 8.3kg of heroin off the streets? Or for them to go further underground? I don’t see the Saturday Paper blaming the AFP for the overdoses that occur regularly in Australia as a result of imported drugs that they are not able to prevent.
Why the fuss in this case? Because Australian citizens are subject to the death penalty for these crimes. According to Rush’s lawyer, the AFP knew that if he committed a crime in Indonesia he could face the death penalty, and still ‘allowed him’ to travel, and tipped off the INP about a crime they suspected was going to take place (even without the information from Rush’s father). Under their guidelines, the AFP must consider relevant factors, including the possibility of a death penalty, before providing information to a foreign law enforcement agency.
Leaving aside the issue of sovereignty, this is the very same logic behind the Jewish principle of ‘mesirah’. Knowing that a citizen would be subject to a legal system far more severe than our own, the AFP would not hand someone over to that jurisdiction.
For hundreds of years, Jews lived in antisemitic, oppressive and unfriendly societies, and without the rights and protections of other citizens. Their communities functioned like a state within a state, governing themselves with internal institutions like the Beis Din, and maintaining a siege mentality toward the outside world.
Fortunately, most Jews in the world now live in Western societies whose legal systems are built on ‘Judeo-Christian’ values, and are largely consistent with our own. We no longer need to protect ourselves against the state; rather we must focus on protecting our most vulnerable against people – too often from within our own community – who seek their harm.
David Werdiger is a technology entrepreneur, writer, and public speaker. He’s involved in several not-for-profits at director and committee level, and has an interest in Jewish community, education, and continuity. You can connect with David on LinkedIn, Facebook, Twitter, or Google+.
Preeeety wrong in judging the judges, judgemental David !!!
I will start with the middle issue.
“Mesirah” was not the outcome of “fear of severity” by courts outside the Beith Din, not at all.
Jewish courts were not an expression of some “siege mentality”, a most fallacious consideration/comment.
The institution of communal, Jewish Beith Din in the old continent was a privilege afforded to Jewish communities by the non Jewish authorities, be it monarchic or just urban/ civil. From Netherlands, Italy to Germany to Lithuania, traversing Moravia and even Hungary, as early as the 16th century, Jewish community were given the requested RIGHT to administer their religion in its fullest expression, practicing and institutionalising chalacha being pivotal in the proper function of Judaism. This was based on the well known principle of “Dina’ de-malkuta’ dina” ( obedience to communal norms as well as Jewish law ) which I am sure you know too well.
In most cases there were allowed even TWO courts, one lay , lead by “manhigim” and one religious, with the famous “dayanim”. Divergences were quite common, but generally the system worked pretty well.
True “mesirah” was a indictment,however, it was an acceptable/approved charge by non Jewish authorities, as they were fully aware of its meaning and subsequent punishments rendered by the Jewish courts. The purpose was not to defy or deny justice but to protect the very authority of the same Jewish courts granted authority by the same non Jewish authorities. It confirmed to the Jewish legal fora their rights as granted by the non Jewish authorities. Jewish judicial structures were, in some case, so large that there were Jewish super-communal Courts at the level of the Provincial ( Jewish) Council of Lithuania, or the Council of Four Lands as early as 16 and 17 centuries. Some courts had prisons of their own and among the punishments allowed death penalty was also on the books !!! Excommunications were also allowed !!! All these were with the express approval of the other “parties” in that “dina’ de-malka dina” concept !!!
The main issue is that these institutions were not an expression of Jewish “severity” in a state of “siege”, but the very concrete, the very tachles of consolidation of Jewish continuity, by far the greatest “allowance” within the concept of degrees of tolerance of a non Jewish society. Persecutions notwithstanding, if Jewish principles/spiritual content would not have been allowed to be practiced and those courts were by far the most reliable institutions for this purpose, there is no doubt that Jewish life/communities as we know them today would have been gone/assimilated into oblivion. To this extent it must be noted that, with the advent of haskala, the very institutions of Jewish judicial courts were seriously challenged and denied legitimacy from within the Jewish fold.Here one may recall the saying that it is very rare to find a third – I’ll grant you “fourth” – “haskala type” Jewish generation. This means that Jewish law , as practiced by the known Beitei Dinei are integral to Jewish identity and continuity.
We may also discuss later the individual authority of a posek within the system etc.
I am very proud that my great-grand father, Josef Spira was the Mayor of the Jewish “township” and manhig of that cute little Moravian town Trbic and also , just around the corner in sub Carpathian Slovakia, my other side Grand father, Rabbi Jozsef Grunfeld came from a very, very frumm lot of dayanim in Kiraly Helmec. I am saying all this as I am fishing for mishpuha among those anxious to be related to me……