Honesty is a necessary ingredient for civil intercourse but complete veracity can sometimes impede society. Deception is biblically prohibited by the verse “Keep yourself far from a false matter” (Ex. 23:7). If we agree that the ends never justify the means, then lying should never be allowed. But what about when the ends are very pressing? Is there really no situation in which deception is appropriate?
Janet E. Smith grapples with this in a recent First Things article (“Fig Leaves and Falsehoods“). After pro-life activists went undercover and, pretending to be pimps employing underage prostitutes, videotaped abortion workers offering illegal and immoral assistance, Catholic thinkers struggled with the morality of the investigation. Does exposing that improper conduct permit deception? Smith addresses the question from a Catholic viewpoint. I’d like to discuss the Torah’s perspective.
My gut tells me that this should be allowed but I have trouble locating an explicit reason to justify the lies. The Talmud allows for lying in the case of maintaining peace (Yevamos 65b), humility (Bava Metzia 24a) and protection from someone else’s deception (link, and for all these see Shulchan Arukh, Choshen Mishpat 262:21 and here). It would also certainly allow deception in order to save a life (see Sanhedrin 74a). If you assume that abortion is murder and therefore preventing an abortion is saving a life, then I see a clear justification. However, that assumption seems unwarranted to me (see here: I, II, III, IV).
In a brief conversation, I asked R. Gedaliah Schwartz whether deception would be allowed in such a case. If I understood his answer correctly, he responded in the negative. In this case, there is no mitigating factor that would allow lying. When I further asked whether undercover police investigations are allowed, R. Schwartz responded that they are allowed when there is life-threatening danger. I did not have the opportunity to confirm that undercover investigations are not allowed for non-violent crimes.
When I spoke about this briefly with R. Daniel Z. Feldman, whose book The Right and The Good contains two chapters on the subject of honesty, he directed my attention to the following discussion. R. Ya’akov Reischer (Shevus Ya’akov 1:138) was asked whether a rabbinic judge who feels his two judicial colleagues are ruling mistakenly may falsely claim an uncertainty about the case, thereby necessitating the addition of two new judges to the court, or must he voice his contrary opinion and be outvoted. R. Reischer responded that the judge is acting out of concern for justice. Since one may lie for the sake of peace, and justice is equivalent to peace, the judge may falsely state that he is uncertain about the case in order to obtain a just verdict. This equation of justice and peace is quite significant (Urim 12:3 and Nesivos, chiddushim 12:2 agree with R. Reischer’s conclusion). However, its application may be more restricted than initial appearance suggests.
When dealing with two claimants in a financial dispute, justice is often a distinct ruling that awards one or the other. Criminal cases are not necessarily similar. While the conviction of a violator of a technicality is a fulfillment of broadly defined justice, do our purposes require a more narrowly defined justice? In our case, the violators are providing assistance to people who may not qualify or should be given additional guidance for related issues. Is uncovering these violations considered justice? While it may be colloquially given that term, the dissimilarity to a financial dispute gives me pause.
In the end, I am not sure whether Judaism would allow undercover investigations absent a danger to life. In this case, even if we consider abortion to be a sufficient danger, the investigations were not intended to prevent abortions. They were designed to catch those who provide abortions in illegal ways. While this may be termed justice, I am not sure the cause is sufficient to permit deception.
Certainly, though, anyone wishing to utilize this or any other type of exception permitting deception must consult with an unbiased third party (such as a rabbi). Personal biases and temptations can easily sway an otherwise sober mind. Nevertheless, while Judaism requires honesty as a primary trait, it recognizes situations in which other specific concerns dominate. Whether the case under consideration is such a situation remains to be determined.
(Please note that my conversations with Rabbis Schwartz and Feldman were just casual discussions and were not intended to produce practical conclusions.)