Testimony against Fellow Jews: A Book Review
Boundaries of Loyalty: Testimony against Fellow Jews in Non-Jewish Courts
By Rabbi Saul J. Berman. Cambridge University Press: 2016.
In second century Babylonia, a rabbinic leader, probably Rava, ruled that “If a Jew knows evidence for a non-Jew, but he (the non-Jew) did not summon him (to testify), and he (the witness) goes and testifies in a non-Jewish court against his fellow Jew, he is to be excommunicated.”
The Talmudic discussion of this ruling begins: “What is the reason? Because they determine monetary liability on (the basis of) a single witness. We do not say this except when there is one (witness), but if there are two, it does not apply.
And even if there is one, we do not say it except in the Magista (informal and probably dishonest) courts, but in Davar (formal) courts…” [Bava Kamma 113b-114a].
According to Torah law, it takes two witnesses to determine liability. Apparently, the rabbi wants to impose a penalty on a Jew who would make another Jew liable in a non-Jewish court, where the litigant could not be liable in a Jewish court. However, if the potential witness received a summons, or if he had a partner witness, or if the court were a formal court, the witness may, or perhaps must, testify.
Rabbi Saul Berman considers the answers to that question in his latest book, Boundaries of Loyalty: Testimony against Fellow Jews in Non-Jewish Courts.
Medieval rabbis provide a number of explanations, and Rabbi Berman surgically separates the policy rationale for each explanation.
Testifying protects the witness, who otherwise be subject to penalty.
Testifying benefits the Jewish community, which needs recognition as a responsible part of society.
Testifying benefits the Jewish litigant, who should acknowledge the truth, and should not benefit unjustly.
Testifying simply means telling the truth as the witness knows it, and truth is a virtue.
Testifying obeys the law of the land, which binds Jews according to the Torah.
Failure to testify would injure the non-Jewish litigant unfairly.
Failure to testify would amount to a Hillul HaShem, a profanation of the divine name. People would think that Jews feel commanded to put loyalty over justice, which would present the God of the Jews as an unjust partisan.
The medieval rabbis each endorsed variations on the permission or requirement to testify in a non-Jewish court by analyzing the Talmudic core text. Each also lived in a society ruled by non-Jews, whose court system met standards of justice to one degree or another, or totally failed to meet those standards.
And yet the medieval rabbis each permitted, or required, Jews to testify in non-Jewish courts.
In the latter half of the twentieth century, though, the idea has become commonplace that Jews must always refuse to testify in secular court against other Jews. Some people present this opinion as “the Orthodox Jewish position.” Certain Haredi rabbinic courts have even endorsed versions of this position. Rabbi Berman examines a few responsa by late twentieth-century rabbis who disregard the long history of accommodation with non-Jewish courts, and simply forbid testifying in theory and in practice. In one famous instance, a woman refused to testify about her Jewish employer.
How did this happen?
Rabbi Berman considers the possibility that isolation from general society has become a dominant feature of Haredi ideology. As I read Rabbi Berman’s analysis, this feature has become a core part of the Haredi brand, so much so that non-cooperation gets decided on a policy level, without regard for the history of halakhah.
Another possibility: in the aftermath of the Shoah, rabbis cannot entertain the thought of turning a Jew over to any secular authority. The distinction between how a Jewish litigant might have fared in the courts of Nazi Germany and how the litigant might fare in an American court simply cannot matter.
Rabbi Berman seems particularly fond of a third possibility: the dread epithet “moser,” informer, sometimes appears in Jewish law as a kind of exaggeration, a rhetorical flourish, to discourage activities which distantly resemble informing against innocent Jews. In other contexts, moser serves as a term of art, with precise legal consequences. Perhaps some twentieth-century rabbis have transformed the rhetorical term into a term of art, and so have decided to apply the harsh consequences of the term moser to the act of testifying in secular court.
Reading Rabbi Berman’s meticulously researched book leaves me with a crucial question: How has this happened? Jewish Orthodoxy claims to derive its legitimacy from its fidelity to the words of the Talmud, as interpreted by the early rabbis (Rishonim) and later rabbis (Aharonim), and to the practices of our pious ancestors, but now has suddenly adopted a policy at odds with the early sources. If faithfulness to Torah tradition supplies Orthodoxy’s reason for existing, the source of its authenticity, even its vaunted superiority over other Jewish movements, even its exclusive right to speak for Judaism, in this instance a segment of the Orthodox world has seen fit to abandon the tradition in favor of a new policy.
We need a new theory for Jewish Orthodoxy, if the movement is not about fidelity to the early sources.