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 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]

Part of a series on
Jews and Judaism
  • Category
  • Portal

The principle of dina d'malchuta 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] 

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 on its behalf; for in the peace thereof you shall have peace" (Jeremiah 29:7). 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 cite Jeremiah's message as a basis for laws concerning Jews in foreign lands was Mar Samuel (ca. 177–257), a Talmudic sage from Babylonia.[4]

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."[5]

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,[4] 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). 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.[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. 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.[3]

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.[3]

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.[11] 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

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.[11]

Rabbinic courts vs. secular-state laws

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.[13]

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.[14]

See also

References
  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. Menachem, Lorberbaum, ed. (2000). The Jewish Political Tradition: Volume 1 – Authority. New Haven: Yale University Press. pp. 431–434.
  4. 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.
  5. Sacks, Jonathan, ed. (2009). The Koren Siddur (1st ed.). Israel: Koren Publishers. pp. 30–31. ISBN 9789653010673.
  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. 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.
  12. Marcus Jastrow, Dictionary of the Targumim, the Talmud Babli and Yerushalmi and the Midrashic Literature (2nd edition), New York 2006, p. 301
  13. Deuteronomy 21:15-17; cf. Maimonides, Mishne Torah (Hil. Nahalot 2:1)
  14. 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.
This article is issued from Wikipedia. The text is licensed under Creative Commons - Attribution - Sharealike. Additional terms may apply for the media files.