Dina d'malkhuta dina

Dina d'malkhuta dina (alternative spelling: dina de-malkhuta dina) (Aramaic: דִּינָא דְּמַלְכוּתָא דִּינָא‎, "the law of the land is the law"), is a rabbinic dictum based on the halakhic rule that the law of the country is binding, 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 Shulkhan Arukh.[1]

Origins

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 in its behalf; for in the peace thereof you shall have peace." (Jeremiah 29:7)[2] For the exiled Jews, their submission to gentile rulers was viewed more as a "pragmatic recognition of brute force" than anything else.[3] The first to use Jeremiah's message as a basis for laws concerning Jews in foreign lands was the Mar Samuel (ca. 177–257), a Talmudic scholar from Babylonia.[4]

Within the halakha and in the Talmud

The dina (= "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,[5] 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,[6] as also to a government's right to determine ways of commerce.[7] In cases of abuse, it was permitted to evade customs (import tax). The laws would also apply to the king's ability to expropriate lands for the building of new roads for his army during war.[8] 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.[9] 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.[10] 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.[11][12]

Application of the dina to Jews

The Rabbis required "minimal justice" from non-Jewish rulers, as such for the dina to be accepted there were two stipulations.[13] 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.[14]

Conditions of dina in civil and religious matters

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.[15] Medieval halakhists developed two approaches to the dina rule.[16] 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 Shulkhan Arukh, the leading halakhic decisors (poskim), are the main proponents for this theory.[17] 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 (mefarshim), however, the work of the mefarshim are analyses of the Talmudic text and, as such, cannot for certain be established as agreed-upon verdicts on the theory.[18]

Application to modern Israel

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.[19] 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.[20] 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.[21] 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.[22]

See also

References

  1. ↑ Emanuel B. Quint A Restatement of Rabbinic Civil Law
  2. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 431.
  3. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 432.
  4. ↑ Salamon Faber, review of Dina de-Malkhuta Dina [The Law of the State Is Law], by Shmuel Shilo, Jewish Social Studies 37, no. 3/4, Summer/Autumn, 1975, 345. https://www.jstor.org/stable/4466899
  5. ↑ Salamon Faber, review of Dina de-Malkhuta Dina [The Law of the State Is Law], by Shmuel Shilo, Jewish Social Studies 37, no. 3/4, Summer/Autumn, 1975, 345. https://www.jstor.org/stable/4466899.
  6. ↑ 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).
  7. ↑ Whereby, all decisions made touching monetary matters are legal and binding. Cf. Maimonides, Mishne Torah (Hil. Zekhiyya u'matanah 1:15)
  8. ↑ Maimonides, Mishne Torah (Hil. Melakhim, ch. 4), see the commentaries there, especially the Commentary of Radbaz.
  9. ↑ Babylonian Talmud, Baba Kama 113b; Maimonides, Mishne Torah (Hil. Gezelah we-Avedah 5:14)
  10. ↑ Babylonian Talmud (Gittin 10b; Mishnah Gittin 1:5)
  11. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 293. https://www.jstor.org/stable/1396177
  12. ↑ Marcus Jastrow, Dictionary of the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature (2nd edition), New York 2006, p. 301
  13. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433.
  14. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433.
  15. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433–434.
  16. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  17. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  18. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  19. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  20. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  21. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. https://www.jstor.org/stable/1396177
  22. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294–5. https://www.jstor.org/stable/1396177


This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.