Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

*********************************************************

Yeshivat Har Etzion invites you to join us for its Annual Dinner

which will be held Tuesday, March 21st at the Grand Hyatt Hotel in NYC.

Rabbi Ari Berman - Rabbinic Tribute Award

Dr. Mark and Brenda Gardenswartz - Parents of the Year

Ilana Stein and Tova Warburg Sinensky - first American alumnae
of the Stella K. Abraham Beit Midrash for Women in Migdal Oz, and

Yeshivat Har Etzion Classes of 1985 and 1986

For more information contact the NY office at etzion@att.net or 1212-732-4784

*********************************************************

Shiur #12a: The Halakhic Force of the Laws of the State of Israel (Part 1 of 2)

Rav Chaim Navon

INTRODUCTION:

            The study of "Hilkhot Medina" – laws governing the state – divides into two: fashioning a model for the ideal Torah state and understanding the halakhic significance of the public arena in the State of Israel of today.  In the ideal Torah state, when the Sanhedrin holds court and the king or those who stand in his place reign, the laws of the state certainly have obligatory force.  But do the laws of the contemporary State of Israel have halakhic validity? And if yes, what is the basis for that validity?

            The halakhic force of Israeli law may be based on one of three foundations: dina demalkhuta, communal enactments, or the law of a king.

PART I: DINA DEMALKHUTA DINA

            The Amora Shemu'el establishes that the laws passed by gentile authorities have binding halakhic force:

Mishna: All deeds written in the courts of the idolaters, even if they are signed by idolaters, are valid, except for bills of divorce and writs of manumission…

Gemara: …Shemu'el said: Dina demalkhuta dina – the law of the government is law.  (Gittin 10b)

            Shemu'el relates to the authority of a non-Jewish government, ruling that its laws and enactments must be obeyed.  The talmudic passage is clearly dealing with monetary matters, and not ritual matters; a non-Jewish regime cannot, for example, change the laws of divorce.

            The Geonim, Rishonim, and Acharonim have all speculated about the halakhic basis of this comprehensive and surprising rule.  Why does a non-Jewish government have the authority to legislate laws and enactments? Their answers may be divided into two main schools of thought.

            The Ran in Nedarim (28a, s.v. be-moches ha-omed) writes that the law of the government is law because the land belongs to the king, and he can tell his subjects that he will expel them if they fail to obey his orders:

The Tosafot write that he [Shemu'el] only says dina demalkhuta dina only with respect to a non-Jewish king, because the land belongs to him, and he can say to them [his subjects]: "If you do not do as I command, I will expel you from the land." But [this rule] does not apply to Jewish kings, for every member of Israel has a share in the land of Israel.  (Ran, Nedarim 28a)[1]

            The Nimukei Yosef in Yevamot (16a, s.v. garsinan) goes even further, arguing that a non-Jewish king owns his subjects.  He acquires them through conquest, and allows them to live on his land on condition that if they fail to obey his commands, he can sell them into slavery.  The Rashbam writes that all of a king's subjects willingly accept the king's laws:

All the taxes, levies, and customary practices that kings ordinarily impose upon their kingdoms are [binding] law.  For all of the king's subjects willingly accept the king's laws and statutes.  Therefore, it is binding law, so that one who takes hold of another person's money based on the law of the king followed in that city is not guilty of theft.  (Rashbam, Bava Batra 54b, s.v. ve-ha-amar)

            The Acharonim discuss at length the differences between these three approaches, but all three share the basic understanding that the king's authority to legislate laws and ordinances is based on ordinary monetary law.  According to the Ran and the Nimukei Yosef, a king has the right to threaten his subjects with expulsion or the like if they fail to obey his laws.  This right is enjoyed by all landowners.  Another point must be added: We assume that all of the king's subjects are deterred by this threat and, therefore, accept his laws.  For this reason we rule in accordance with the king's laws, for we assume that they guided the two litigants at the time of their transaction.  Therefore, even if the king does not actually exploit his coercive powers, dina demalkhuta dina, because we assume that people fear the king's punishments, and, therefore, accept upon themselves the norms that he legislates.  According to the Rashbam as well, we rely on the assumption that the king's subjects agree to conduct their business in accordance with the king's regulations.  All of these approaches are based on the halakhic principle that a condition attached to a monetary transaction is binding.  In other words, the two parties to a deal can choose the rules according to which they will be conducting their business.

            According to the aforementioned approaches, the rule of dina demalkhuta dina does not include the dimension of sovereignty.  The king's authority follows from his position as private owner of the land or the people, and his subjects' agreement to act in accordance with the laws that he establishes.[2]

            Alternatively, there are those who have argued that a king is endowed with the basic right to legislate laws and statutes for his subjects.  This is implicit in the following geonic responsum:

Shemu'el said: The law of the government is law… Thus stated Shemu'el, for when the Holy One, blessed be He, established kingdoms in His world, he gave the kings control over people's assets to do with them as they please, and even [over the assets of] Israel, as it is written: "Also they have power over our bodies, and over our cattle, at their pleasure" (Nechemia 9:37).  (Teshuvot ha-Ge'onim, ed. Assaf 1942), no. 66)

            The Geonim argue that God gave the temporal kings control over their subjects' assets.  This is a basic given of Halakha that does not rest on any other halakhic principle.  The Mabit writes that the laws pertaining to a king found in the book of Shemu'el teach us that even the kings of the nations of the world have the authorities of a king[3]:

The king's tax-collectors… who collect what he legislates for all, is not theft, for dina demalkhuta dina, as we learn from the verses dealing with the laws pertaining to a king… and even a non-Jewish king.  (Mabit, Kiryat Sefer, Hilkhot Gezela 5)

            Some authorities have drawn a connection between two of Shemu'el's rulings, one regarding the laws of a king and one regarding dina demalkhuta.[4] The Even ha-Ezel (Hilkhot Nizkei Mamon 8:5) infers from Rashi (Gittin 9b) that the authority of a non-Jewish king is derived from that fact that the seven Noachide laws includes the obligation to establish courts of law.  The Devar Avraham (I, no. 1) infers from Rabbenu Yona that a king's authority is based on the rule of hefker bet din hefker, "property declared ownerless by a court is ownerless." The Chatam Sofer as well writes that dina demalkhuta is a basic and independent law (Orach Chayyim, no. 208; Choshen Mishpat, no. 44).

            The essential difference between these understandings and the ones brought earlier is sometimes overlooked.  The fundamental difference between them should, therefore, be emphasized: The last-mentioned Rishonim and Acharonim do not base the authorities of a king on the ordinary rules that apply also to the conduct of ordinary people.  Rather, they argue that a king is invested with the fundamental authority to legislate laws and ordinances.  This authority is not based on any ordinary law; rather, it itself is one of the foundations of the legal system.

            At first glance, it should be possible to base the authority of Israeli law on the rule of dina demalkhuta dina.  The Rishonim, however, disagree as to whether the principle of dina demalkhuta dina applies in Eretz Israel.  This question depends on the various rationales proposed for this rule.  As we have seen, the Ran rejects the possibility of such an application.  Basing the validity of dina demalkhuta on the king's ownership of the land, the Ran argues that in Eretz Israel the land does not belong solely to the king, but rather it is our inheritance from our forefathers; thus, his laws have no validity.  The Chatam Sofer argues that those Rishonim who do not accept his rationale for the validity of dina demalkhuta, would disagree with him regarding this ramification as well:

Regarding dina demalkhuta dina, the Rashbam writes that [the inhabitants of] the country themselves agree… According to this, there should be no difference between a king of the nations of the world and a king of Israel.  Even the king of Israel, who does not own the land, for it was divided among the tribes – all of his laws and statutes, they willingly accept upon themselves, and this is a complete waiver.  (Chatam Sofer, Choshen Mishpat, no. 44)

            In practice, the Shulchan Arukh implies (Choshen Mishphat 369:1) that the law of dina demalkhuta applies to Jewish kings as well.

            Regarding the application of dina demalkuta, there are additional limitations as well.  We see from Gittin 10b that the rule of dina demalkhuta dina does not apply to bills of divorce or writs of manumission, that is, to ritual law.  The Gemara seems to be saying that dina demalkhuta dina is restricted to monetary matters.

            The Maggid Mishne (Hilkhot Malve ve-Love 27:1) maintains that dina demalkhuta is binding with respect to matters that are of benefit to the king himself, but the king lacks the authority to legislate general ordinances for the state.  The Rashba (Bava Batra 55a, s.v. hakhi garsinan) rejects this position, arguing that the king certainly has the right to enact general ordinances in monetary matters.  It stands to reason that, according to the Maggid Mishne, the law of dina demalkhuta is based on the law of monetary conditions, on the assumption that people are willing to accept the king's personal demands, but they are not ready to submit to his attempts to legislate general ordinances.

            The Rambam rules that if the king establishes a general law, it is valid; if, however, he issues a special ruling for a particular individual, this is not law, but theft, and therefore not binding (Hilkhot Gezela 5:13-14).  The Maggid Mishne explains there that the law of the government is law, but governmental theft is not law.  This certainly stands to reason according to the understanding that we are dealing with the legislative authority of a king, and not a monetary condition.

            The Ramban and others maintain that a king may not initiate a new law that is not generally accepted in other kingdoms, for the law of governments in general (malkhuta) is law, but not the law of a particular king (malka).  According to the Maggid Mishne, the Rambam disagrees on this point.

            The Or Zaru'a (Bava Kama, 447) suggests that dina demalkhuta is only binding regarding matters connected to landed property, because a landowner can enact such an ordinance regarding his land, even if he is an ordinary person and not the king.  Obviously, this fits in well with those understandings that base the king's authority on the law of conditions attached to monetary matters, which follows from the king's ownership of the land.

            The Gemara in Gittin 10b says that dina demalkhuta validates a deed of gift issued in a non-Jewish court and signed by non-Jewish witnesses.  This seems to imply that dina demalkhuta applies in monetary matters even against Halakha.  The Shakh (73, no. 39), however, argues that dina demalkhuta is only binding in matters not dealt with explicitly by Torah law.  But in matters explicitly dealt with by Torah law, dina demalkhuta is not binding.  As for the deed of a non-Jew, the Shakh explains that when a person writes a deed in a non-Jewish court, he explicitly demonstrates that he is relying on dina demalkhuta (and this is a valid monetary condition).  Most posekim, however, appear to disagree with the Shakh.[5]

            We see then that we are dealing with a complex and complicated system of factors.  Thus writes also the author of Responsa Heishiv Moshe:

Regarding the question relating to dina demalkhuta…there is great confusion and many contradictions among the Acharonim on this matter.  For sometimes they raised the royal banner on high, and sometimes they cast it down to the ground.  I have not seen any author speaking clearly and establishing a strong foundation regarding the matter.  (Reponsa Heishiv Moshe, Choshen Mishpat, no. 90)

footnotes:

[1] The Tosafot refer to the king's ownership of the land in his country in at least two places: Bava Batra 55a, Tosafot, s.v. im ken; Kiddushin 36b, Tosafot, s.v. kol mitzva.  No mention is made in either place of the principle of dina demalkhuta dina.

[2] Sh. Shilo (Dina Demalkhuta Dina, Jerusalem 1975, pp. 74-76) inclines to compare the Rashbam's position to the law of "communal enactments," which also rests on the agreement of the inhabitants.  It would appear, however, that the Rashbam is not relating to some fundamental agreement of the community to the authority of the king, but to a continuous identification with each and every law and enactment in and of itself.  R. A. Waldenberg's explanation (Hilkhot Medina, I, 3, 6) that the Rashbam bases his position on the law of monetary conditions appears necessary, and is not "a new explanation" or "a sole dissenting opinion," as argued by Shilo.  Shilo argues that the Rambam as well relies on the principle of the people's agreement as a source for the ruler's authority (ibid., pp. 63-64).  However, the Rambam which he cites is not dealing whatsoever with the source of the authority, but rather with the definition of the bearer of that authority – who is the king whose rules have valid standing.

In any event, for our purposes, this question does not appear to have any important practical ramifications.  Even if we explain that the source of the king's authority is connected to the law of "communal enactments," with all the paradoxes of this connection, which seems to be illogical, this is still not sovereignty flowing from the people's agreement, but rather, limited, voluntary association.

[3] This is also the implication of the words of the Bet Yosef, cited in Responsa Avkat Rokhel, no. 47.

[4] Malki ba-Kodesh, III, 2, par. 1.  We shall see below that the authorities of a Jewish king need not necessarily be interpreted as sovereignty in the sweeping sense of the term.  It is clear from the Mabit and Responsa Malki ba-Kodesh that a Jewish king enjoys full sovereignty in his country. 

[5] See Sh. Dichovsky, Techumin 18, p. 26.

(Translated by David Strauss)