Dina d'malkhuta dina

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

Dina d'malkhuta dina (alternative spelling: dina de-malkhuta dina) (Imperial Aramaic: דִּינָא דְּמַלְכוּתָא דִּינָא, lit. "the law of the Government [in civil cases] is law," or "the law of the land is the law") is a principle in Jewish religious law that the civil law of the country is binding upon the Jewish inhabitants of that country, and, in certain cases, is to be preferred to Jewish law. The concept of dina de-malkhuta dina is similar to the concept of conflict of laws in other legal systems. It appears in at least twenty-five places in the Shulchan Arukh.[1]

The principle of dina d'malkhuta dina means that for Jews, obedience to the civil law of the country in which they live is viewed as a religiously mandated obligation and disobedience is a transgression, according to Jewish law. This general principle is subject, however, to the qualifications that the government enacting the law must be one which is recognized by Jewish law as having legitimacy; the law must apply equitably to all the inhabitants, Jewish and non-Jewish alike; and the law must not contravene the spirit of the laws derived from the Torah even if a particular regulation may be contrary to a provision of Jewish law.[2] Whenever a state law infringes upon a prohibition (Hebrew: איסור) outlined in the Torah, or else infringes upon an authorized thing (Hebrew: היתר) in the Torah, the laws of Dina d'malkhuta dina do not apply.[3][4]

Origins[edit]

Origins of this idea come from Jeremiah's letter to the Babylonian exiles: "Seek the peace of the city to which I have exiled you and pray to the Lord on its behalf; for in the peace thereof you shall have peace" (Jeremiah 29:7). In the opinion of some, for the exiled Jews their submission to gentile rulers was viewed more as a "pragmatic recognition of brute force" than anything else.[5] Yet it is surely a mark of something extraordinary in the message of Jeremiah that his advice goes beyond mere submission to necessity and requests prayer for the "peace (שָׁלוֹם)" of those among whom the exiles find themselves.[citation needed]

The first to cite a teaching under the authority of Dina d'malkhuta dina, and who applied it to Jews who live under the laws of foreign lands, was Mar Samuel (ca. 177–257), a Talmudic sage from Babylonia.[6]

Rabbi Hanina, who had been the Deputy High Priest before the Roman conquest of Jerusalem and the destruction of the Second Temple is cited in tractate Avot (Talmud, b. Avot 3:2) as saying: "Pray for the welfare of the government, for were it not for fear of it, people would swallow one another alive."[7]

Within the halakha and in the Talmud[edit]

The dina etc. (= "law of the land") was the only extraneous element that was incorporated into the halakhic law structure, the foundation of jurisdictional autonomy of Jewish communities,[8] and applies to raising taxes, duties and imposts, on the condition that the exacter is fully authorized and does not exact more than what he is entitled to exact,[9][10] as also to a government's right to determine ways of commerce.[11] In cases of abuse, it was permitted to evade customs (import tax). By definition, the term would also apply to the king's ability to expropriate lands under the laws of eminent domain for the building of new roads for his army during war.[12][13] Not only is he permitted to build a road for his army, but according to Shemuel, in virtue of the powers vested in the government or in the king, he has the authority to cut down another's date-palm trees and to make from them bridges, while persons making use of the bridge need not suspect that the original owners have not despaired of retrieving their lost property and are still in possession of the timbers, seeing that, in fact, they have despaired of retrieving what was formerly theirs.[14] Included in the general scope of the term's definition are the legal deeds (conveyances) and documents held in non-Jewish courts of law and registries, which are viewed as valid.[15] The statement dina de-malkhuta dina, appears 4 times in the Babylonian Talmud and is a nod to Jewish acquiescence to Gentile authority, as also to Jewish secular authority.[16][17]

The term dina etc. (= "law of the land") not only applies to an Israelite or Jewish government, but also to non-Jewish governments where Jews are concerned and where the law of the government must be respected as the law of the Torah. The Talmud (Baba Batra 55a) notes that, in the case of the Persian government and its laws, title to land can be acquired by usucaption (occupancy) after forty years of occupancy by a farmer, during which years the farmer had not met up with any counter-claim or protest, although in Jewish law one gains title to property by usucaption after working it for only three years from date to date.[18] In this case, Jews living in Persia were obligated to honor the law of the land. The novelty of the Persian law allows for the Persian farmer who gained possession of the property to sell the property to others, and even if it should later be learned that the property was stolen from its original owner (who had not protested his right to the property all these years), the person who buys the property - if confronted by its rightful owner who now lays claim to the property and demands that restitution be made - is not required to relinquish the property under Persian law,[18] something which stands contrary to Jewish law (when the rightful owner has not despaired of retrieving his lost property), although valid by virtue of Dina d'malkhuta dina. Only in such places where Jewish law prevails would the original owner, in such cases, regain access to his stolen property, seeing that stolen property cannot be acquired by way of usucaption. Land purchased by a Jew from a non-Jew, the non-Jew must authenticate its purchase by showing a legal deed of title to the property.[19][18]

Application of the dina to Jews[edit]

While the majority of rabbis hold that Dina d'malkhuta dina applies to, both, Jewish and non-Jewish governments,[20][21] Rabbi Nissim, who cites the Tosafists, dissented, saying that with respect to land-tax levied by a government on its subjects, such as in the case of the Persian king who was entitled to levy a land-tax upon his subjects, and those who defaulted in payment could have their property confiscated, or either mortgaged by mortgagers until payment has been made on the property (Baba Bathra 55a, Rashi s.v. טסקא‎), the rule of Dina d'malkhuta dina applies in their case, that is, only to non-Jewish kingdoms (forms of government) outside of the Land of Israel, but does not apply to Jewish kings and governors within the Land of Israel.[22] The rabbis required "minimal justice" from non-Jewish rulers, as such for the dina to be accepted there were two stipulations. These stipulations were that laws had to be both explicit and universal, to safeguard Jews from gentile laws that could potentially be used against them.[5]

According to Maimonides, the government of any country has the authority to levy a land-tax upon its subjects, and those who default in its payment could have their property confiscated from them, or either mortgaged by mortgagers until payment has been made.[23]

Conditions of dina in civil and religious matters[edit]

The Rabbis created terms that could be easily used and identified for highlighting the jurisdiction of the dina (= "law of the land"), these mamona (civil and economic matters) were places where the dina could legitimately supersede even Torah law, and the isura (forbidden or religious matters) that the gentile laws could not be heeded against the Torah.[5]

Medieval halakhists developed two approaches to the dina rule. First was the "contractual" theory where the laws of the ruling king are binding upon the subjects of the realm because they had agreed in advance to accept the king's laws. Maimonides and the Shulchan Arukh, the leading halakhic decisors (poskim), are the main proponents for this theory.[16] Second is the "ownership" theory, where the Jews recognize the king’s law as the land is his personal possession; this theory is supported by the Talmudic commentators (Ran and Tosafos)

Application to modern Israel[edit]

In regards to modern Israel, there are those who allege that the Talmud cites the dina as applying only upon the laws of a Gentile government, while the sovereignty of a Jewish king, as applicable to the dina, is never cited in the Talmud. In the argument supporting the dina's applicability to the modern Jewish state, Tenbitsky, a commentator on this subject, presents the principle of niḥa lehū (Hebrew: ניחא להו), the Jewish community's acquiescence to governmental power for the sake of public order. Using this logic, the niḥa lehū can be applied to any legitimate governmental purposes such as taxes for national defense, and, therefore, the dina can be applied to a Jewish sovereign, as the necessary power cannot be denied as per niḥa lehū. However, under the "ownership theory" the dina cannot be applied to a Jewish sovereign in the land of Israel as all Jews own the land together, therefore a Jewish king or government, an equal landowner, would not be able to expel others from their domain.[16]

Rabbinic courts vs. secular-state laws[edit]

Israel's inheritance laws are a direct carry-over from the British Mandate inheritance regulations of 1923, which stipulated that females and males had equal inheritance rights. However, in the Mosaic law, the inheritance is to be divided by the court equally among the sons of the deceased (the daughters being excluded from the inheritance, unless they were stipulated in his Last Will, or were his only offspring). According to the same Mosaic law, the firstborn of his sons receives a double portion of the divided inheritance.[24]

Since rabbinic courts are unable to bypass the secular-law of the state, nor can they cancel the biblical laws, they circumvent the issue by encouraging the head of the family to write out a Last Will before his death, in which case, the father is able to bequeath a hefty portion of the inheritance of his estate to his eldest son. Conversely, if there was no Last Will made by the father before his death, when brothers and sisters come before a rabbinic court of law to settle their inheritance, the court, before issuing an Inheritance Order (Hebrew: צו ירושה), endeavors to convince the eldest son to willingly give-up part of his inheritance so that his sister(s) may receive a portion of the same, all having given their written consent in advance to the conditions, in which case, the court views the divided inheritance as a "gift," whilst the secular laws of the state have not been compromised.[25]

See also[edit]

Further reading[edit]

  • Schachter, Herschel (1984). "`Dina De'malchusa Dina`: Secular Laws as a Religious Obligation". In Cohen, Alfred S. (ed.). Halacha and Contemporary Society. KTAV Publishing House, Inc. pp. 85–114. ISBN 9780881250428.

References[edit]

  1. ^ Emanuel B. Quint A Restatement of Rabbinic Civil Law
  2. ^ Galas, Yechiel (1979). "Halacha and the Law of the Land". Halacha: a guide to its understanding in theory and practice, based on the Meforshim (Expositors) and Posekim (Decisors) of the past and present. New York: Judaica Press. ISBN 9780910818131.
  3. ^ Elon, Menachem (1978). Jewish Law: History, Sources, Principles (Ha-mišpaṭ ha-ʻivri - toldotav, meḳorotav, ʻiḳronotav) (in Hebrew). Vol. 1 (parts I-II) (2 ed.). Jerusalem: Hebrew University: Magnes Press. pp. 161, 169. OCLC 14813103.
  4. ^ Eisenstein, Judah D. (1970). A Digest of Jewish Laws and Customs - in Alphabetical Order (Ozar Dinim u-Minhagim) (in Hebrew). Tel-Aviv: Ḥ. mo. l. p. 84 (s.v. דינים ודיינים). OCLC 54817857. (reprinted from 1922 and 1938 editions of the Hebrew Publishing Co., New York)
  5. ^ a b c Menachem, Lorberbaum, ed. (2000). The Jewish Political Tradition: Volume 1 – Authority. New Haven: Yale University Press. pp. 431–434.
  6. ^ Faber, Salamon (1975). "Review of Dina de-Malkhuta Dina [The Law of the State Is Law] by Shmuel Shilo". Jewish Social Studies. 37 (3/4): 345–346. JSTOR 4466899.
  7. ^ Sacks, Jonathan, ed. (2009). The Koren Siddur (1st ed.). Israel: Koren Publishers. pp. 30–31. ISBN 9789653010673.
  8. ^ Faber, Salamon (1975). "Review of Dina de-Malkhuta Dina [The Law of the State Is Law] by Shmuel Shilo". Jewish Social Studies. 37 (3/4): 345–346. JSTOR 4466899.
  9. ^ Babylonian Talmud (Baba Kama 113a). Cf. Rabbi Isaac Alfasi, Baba Kama 40; Maimonides, Mishne Torah (Hil. Gezelot ve-Avedah 5:11–18); Shulhan Arukh (Hoshen Mishpat § 369:6).
  10. ^ Babylonian Talmud (Nedarim 28a)
  11. ^ Whereby, all decisions made touching monetary matters are legal and binding. Cf. Maimonides, Mishne Torah (Hil. Zekhiyya u'matanah 1:15)
  12. ^ Maimonides, Mishne Torah (Hil. Melakhim, ch. 4), see the commentaries there, especially the Commentary of Radbaz.
  13. ^ Cf. Zoldan, Yehuda (2019). "The king breaks through [a private fence] to pave a road – By the man, who is the son of Perez (מלך פורץ לו דרך : על יד איש בן פרצי)". Asif - Talmud and Halacha (Yearbook of the Hesder Yeshivas Association) (in Hebrew). Yeshivat Hesder. 6: 147–173., who wrote: “The Mishnah (Sanhedrin, chapter 2) treats on the laws governing the High Priest (ibid. 2:1), and in those matters touching the king (ibid. 2:2–5). One of these oral teachings (ibid. 2:4) treats on the issue of war that is led by a king:
    He may send forth [the people] to a war waged of free choice by the decision of the court of one and seventy. He may break through [the private domain of any man] to make himself a road and none may protest against him. The king's road has no prescribed measure. All the people may plunder [the effects of the enemy] and they give it to him (i.e. the king), and he first takes his portion... The expressions, 'the king's road,' as also, 'he may break through to make himself a road,' do not merely mean the right to make inroads in territories belonging to private individuals, but rather that he has the authority to inflict damage to private property for the good and successful prosecution of the war, and that, mind you, without limitation” (END QUOTE).
  14. ^ Babylonian Talmud, Baba Kama 113b; Maimonides, Mishne Torah (Hil. Gezelah we-Avedah 5:14)
  15. ^ Babylonian Talmud (Gittin 10b; Mishnah Gittin 1:5)
  16. ^ a b c Washofsky, Mark (Oct 1989). "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity". Modern Judaism. 9 (3): 294–295. doi:10.1093/mj/9.3.289. JSTOR 1396177.
  17. ^ Marcus Jastrow, Dictionary of the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature (2nd edition), New York 2006, p. 301
  18. ^ a b c Babylonian Talmud (Baba Bathra 55a, Rashi, s.v. דאריסא דפרסאי ארבעין שנין
  19. ^ Babylonian Talmud (Baba Bathra 35b, note 13)
  20. ^ Cf. Maimonides (1965). Mishnah, with Maimonides' Commentary (in Hebrew). Vol. 2. Translated by Yosef Qafih. Jerusalem: Mossad Harav Kook. p. 87. OCLC 741081810., s.v. Nedarim 3:3
  21. ^ Meiri (2006). Daniʼel Biṭon (ed.). Beit HaBechirah (Chiddushei ha-Meiri) (in Hebrew). Vol. 4. Jerusalem: Mekhon ha-maʼor. p. 60. OCLC 181631040., Nedarim 28a, s.v. כבר ביארנו. Quote: "We have already explained in multiple places that Dina d'malkhuta dina does not apply except in those matters which the king makes a fixed law by way of affecting the general populace, rather than [simply] innovating something that applies to an individual, in a specific manner. All, therefore, which he has done by way of affecting the general populace becomes a bona fide law, and it is forbidden to ignore it, or to circumvent it, as one who engages completely in theft. As for this matter, there is no difference between the kings of Israel and the kings of the nations of the world."
  22. ^ Babylonian Talmud (Nedarim 28a, s.v. במוכס העומד מאליו). He brings a reasonable explanation for this ruling, stating that Gentile kings are able to expel Jews from their country if they refuse to pay their taxes, whereas a Jewish king or governor could never legally expel a Jew from the Land of Israel, since all of the people of Israel are equal partners in the Land. The debate in Nedarim 28a, however, is more broad and stems from a teaching in the Mishnah (Nedarim 3:3) and where it states that it is permitted to evade a tax-collector by saying unto him that the fruits cannot be legally taxed since he had already vowed to designate them as Terumah unto the priestly stock, even though, in actuality, he made no such vow nor designation. Shemuel (the amora) and Rabbi Yannai, who explained the sense of the same Mishnah, stated that the Mishnah refers to a case where the tax-collector was exacting more than what the law demanded of him, or was an impostor, in which case it was permissible to evade him by means of deception, especially since if he refused to pay the tax-collector he put himself in immediate danger (Jerusalem Talmud, ibid.).
  23. ^ Maimonides (1974). Sefer Mishneh Torah - HaYad Ha-Chazakah (Maimonides' Code of Jewish Law) (in Hebrew). Vol. 5. Jerusalem: Pe'er HaTorah. p. 70 [35b] (Hil. Gezeilah we-'aveidah 5:13-14). OCLC 122758200., cf. Baba Bathra 55a, Rashi s.v. טסקא
  24. ^ Deuteronomy 21:15–17; cf. Maimonides, Mishne Torah (Hil. Nahalot 2:1)
  25. ^ Shereshevsky, Shlomo (1975). Daʻ et ha-ḥoḳ - dinei yǝrūshah (Be Apprised of the Law - the Inheritance Laws) (in Hebrew). Jerusalem: Israel Ministry of Justice. p. 52. OCLC 19156540.

External links[edit]