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Dina de-Malkhuta Dina

DINA DE-MALKHUTA DINA (Aram. דִּינָא דְּמַלְכוּתָא דִּינָא), the halakhic rule that the law of the country is binding, and, in certain cases, is to be preferred to Jewish law. The problem of dina de-malkhuta dina is similar to – but not identical with – the problem of *conflict of laws in other legal systems.

The Historical Background

The original significance of this rule, which was laid down by the amora *Samuel, can be deduced from the historical events of that era. The conquest of Babylon from the Parthians by Ardashir I, king of the Sassanids in 226 C.E., brought an end to the period of tranquillity from which the Jews in *Babylonia had benefited. Losing their political and religious autonomy, they had to adapt themselves to the powerful and centralized rule of the Sassanids. In 241 Shapur I, son of Ardashir, succeeded to the throne and granted the minorities under his rule cultural and religious autonomy which also applied to the Jews. Samuel, their leader at that time, imbued Babylonian Jewry with the consciousness that they must become reconciled to the new government, and a personal friendship was apparently established between Samuel and Shapur (Neusner, Babylonia, vol. 2; 16, 27, 30, 45, 71). Consequently Samuel's rule had important political significance, since it recognized the new Sassanid kingdom as a civilized rule possessing good and equitable laws which Jews were bound to obey, as they were to pay the taxes it imposed (ibid., 69, 95).

The Principle in the Talmud

Samuel's principle is cited only four times in the Talmud (Ned. 28a; Git. 10b; BK 113a; BB 54b and 55a). Three halakhot that are cited by *Rabbah (according to another reading by *Rava, fourth generation of Babylonian amoraim), in the name of the exilarch Ukban b. Nehemiah, and are attributed to Samuel deal with the relationship of Jews to the Persian government and with the relationship of Jewish to gentile law. These halakhot establish that the Persian law of the presumptive ownership of land is to be recognized even if it is opposed to Jewish law (see *Ḥazakah); that the sale of land confiscated by the government for non-payment of tax on the land is valid, but only if the sale is because of non-payment of the land tax and not because of non-payment of the poll tax (BB 55a; et cf. BK 113b). Additional halakhot adopted in consequence of dina de-malkhuta dina are: recognition of the Persian rules for the transfer of land even if they are not in accordance with Jewish law (BB 54b and 55a); the right of the king to sell a person into slavery for evading payment of the poll tax and the option of a Jew to buy him from the government executive officers and to enslave him (Yev. 64a; BM 73b); a prohibition against cheating tax collectors and concealing assets from them, unless the taxes are illegal for the reasons mentioned in the Talmud (Ned. 28a; BK 113a); and the recognition of bills executed by, or endorsed by, non-Jewish courts despite their being invalid according to Jewish law. The Talmud records a dispute as to the scope of the last halakhah. One opinion is that every type of document is to be recognized except for bills of divorce and manumission; according to another view the recognition is granted only to declaratory bills serving as evidence, such as bills of debt, but not to constructive bills such as benefactions (Git. 10b). It may be assumed that the definite but restricted recognition of the government's right to punish wrongdoers was based in part on Samuel's principle, although this is not stated explicitly in the talmudic sources. His principle was accepted as definitive halakhah, in the talmudic era and later. In spite of the permissiveness of the halakhah in adopting a foreign statute, Jewish law remained dominant in Jewish society, as is amply testified by the great legal creativity of Babylonian Jewry in the talmudic era.

The Legal Basis of the Principle

No legal basis for Samuel's principle is given by the Talmud; nor, apparently, did this problem engage the attention of the geonim. In one responsum of the geonic period an effort was made to establish the principle for practical religious reasons. The responder, having regard to the realities before him – Jews under a foreign government – states that it is the will of God that Jews should obey the laws of their rulers, a verse from the book of Nehemiah (9:37) being quoted in support of this view (S. Assaf (ed.), Teshuvot ha-Ge'onim (1942), no. 66). Later a number of legal explanations were suggested for Samuel's principle. According to one, Jewish law is able in certain cases to accept non-Jewish law because non-Jews are commanded to enact laws to preserve orderly social life (see *Noachide Laws; Rashi, Git. 9b). According to another view the reason is contractual; i.e., the inhabitants have accepted the king's statutes or the king himself: "For all the citizens accept the king's statutes and laws of their own free will" (Rashbam BB 54b), or "For the inhabitants of that country have accepted him [the king] and take it for granted that he is their master and they are servants to him" (Maim. Yad, Gezelah 5:18). A third view that has been adopted, especially by later authorities, bases the rule dina de-malkhuta dina on the right of the court to expropriate a person's property (hefker bet din hefker, see *bet din and *takkanot); namely, that the halakhic scholars, by virtue of their authority to enact takkanot in monetary matters, even in opposition to the laws of the Torah, have in certain matters recognized the customs of the kingdom and its statutes (Teshuvot Ba'alei ha-Tosafot no. 12; Devar Avraham, vol. 1, no. 1). Some scholars have compared the right of non-Jewish kings to the power of a king of lsrael (Nov. Ritba, BB 55a). Others take the view that the legality of the king's statutes derives from the simple fact that the land belongs to the king, who lays down the conditions of residence, and if Jews wish to dwell in his land they are obliged to obey his directions (Ran, Ned. 28a; Or Zaru'a, BK, no. 447; for an additional reason, similar but not identical, see Or Zaru'a, ibid. and Devar Avraham, vol. 1 no. 1). Still others see the halakhic validity of custom as the basis of dina de-malkhuta dina (Aliyyot de-Rabbenu Yonah, BB 55a). Most of these views reflect the sociopolitical outlook of the Middle Ages.

In recent times halakhic scholars have been occupied by the problem of whether the principle dina de-malkhuta dina derives from rabbinic or biblical law (see *Mishpat Ivri). The accepted view is that it is of biblical authority and thus those consequences in the field of halakhah that derive from this conclusion must be applied to it (see ibid.; Resp. Hatam Sofer, YD, nos. 127 and 314; Avnei Millu'im, 28:2; Devar Avraham, vol. 1, no. 1).

The Nature of the Government and the Statute

The halakhic authorities did not accept every law and every kingdom for the purpose of applying the principle dina demalkhuta dina and a series of conditions and qualifications were established.

(1) THE RECOGNIZED GOVERNMENT. There were scholars who held that the principle applied only where there existed a monarchist form of government (Oraḥ la-Ẓaddik, ḤM, no. 1). Others, however, were of the opinion that Samuel's rule included other types of authority. With changes in the forms of government and the increase of non-monarchic states, the second view gained acceptance (Keneset ha-Gedolah, Tur, ḤM 369).

(2) DINA DE-MALKHUTA DINA AND THE KINGDOM OF ISRAEL. Another problem is whether the principle applies to Jewish kings in the land of Israel. From talmudic sources it follows that a distinction must be made between the laws of Jewish kings and those of non-Jewish kings as far as dina de-malkhuta dina is concerned; this was also the opinion of most early halakhists (Teshuvot Ba'alei ha-Tosafot no. 12; Nov. Rashba, Ned. 28a). According to Solomon b. Abraham *Adret, those who believe that dina de-malkhuta dina does not apply to Jewish kings admit that it does apply to them if they rule outside Israel (Resp. Rashba, vol. 2, no. 134). This opinion corresponds with one of the reasons given for the principle not applying to Jewish kings in Israel: "But the laws of Jewish kings are not valid because Israel was divided among [is the inheritance of] every individual Israelite and does not belong to the king, while in the case of non-Jews their law is that the whole land belongs to the king" (Or Zaru'a, BK, no. 447). In the course of time the school that held that Samuel's principle was to be applied to a Jewish government in Israel grew stronger (Tashbez, pt. 4, section 1, no. 14).

(3) THE PRINCIPLE OF EQUALITY. All agree that the law of the kingdom must apply equally to all its citizens (Maim. Yad, Gezelah, 5:14; Sh. Ar., ḤM 369:8). Resulting from the conditions of Jewish life in exile, the principle of equality was so interpreted that certain types of discrimination were recognized as valid. In one case it was decided that it is sufficient if the law does not discriminate between Jew and Jew despite the fact that Jews as a whole are adversely discriminated against (Resp. Maharik, no. 195). An additional loophole is: the king is permitted to enact special laws for "strangers, not of his own country" (Ḥokhmat Shelomo ḤM, 369:8).

The Scope of Laws Included in Dina de-Malkhuta Dina

(1) *ISSUR ("religious prohibitions") AND MONETARY LAW. All agree that the principle does not apply to religious or ritual observances (issur ve-hetter). This was so certain that it was not particularly stressed and is mentioned only in a few sources (Tashbeẓ, pt. 1, no. 158).

(2) THE KING'S INTERESTS. Some scholars limited the application of dina de-malkhuta dina to such matters only as were the king's interests; namely, the needs of the kingdom and not matters of purely private law (Sefer ha-Terumot, 46:8) but most scholars believed that the principle is applicable even in matters of pure private law (ibid., Maggid Mishneh, Malveh ve-Loveh 27:1; Resp. Rashba, vol. 1, no. 895).

(3) "NON-JEWISH WAYS" AND NEW LAWS OF THE KING. Some halakhists affirm that the laws of the kingdom must be recognized but not "non-Jewish ways." This concept is somewhat obscure; in medieval times when it was first discussed, it apparently meant laws that were based on local customs whose source was not the laws of the kingdom but popular usage; these had no validity since the principle is that "the law of the king is binding but the laws of his people are not binding for us" (Rashba, Resp. vol. 6, no. 149; Beit ha-Beḥirah, BK 113b). On the other hand most medieval halakhists held that Samuel's rule does not apply to laws introduced by the kings themselves that were not previously the law of the land (Teshuvot Ba'alei ha-Tosafot no. 12; Nov. Ritba. BB 55a; Nov. Rashba, BB 55a). This was under the influence of the point of view prevailing in general medieval jurisprudence, which only recognized the validity of ancient laws. Despite the fact that most of the early halakhists held this view, since Maimonides and Asher b. Jehiel apparently disagreed with it (Alfasi does not discuss it at all), Joseph Caro decided the law in conformity with their opinion (see *Codification of Law), and in the Shulḥan Arukh he makes no mention of the restriction of dina de-malkhuta dina to ancient law. Joseph Caro's decision served in the following generations as the basis for the extension of Samuel's principle, an imperative necessity when medieval views on the static quality of law underwent sweeping changes and the main laws of the country were no longer based upon ancient statutes but on current legislation (Sh. Ar., ḤM 369:8–10).

(4) STATE LAWS IN OPPOSITION TO TORAH LAW. According to some halakhists the law of the state is binding only when it does not oppose Torah law; i.e., only when it relates tomatters not explicitly dealt with in the Torah (A. Sofer (ed.), Teshuvot Ḥakhmei Provinẓyah (1967), ḤM, no. 49; Siftei Kohen, ḤM 73, no. 39, Ḥatam Sofer, Resp. ḤM no. 44). This distinction is not sufficiently clear, since it is difficult to find the dividing line between what is available in Torah law and what constitutes a lacuna since, according to the point of view of halakhists, the solution of every problem is to be found in the halakhah itself.

Taxes

The king's right to collect taxes was already recognized in the Talmud, and was strengthened by all halakhists in the post-talmudic period. Evading payment of tax is considered robbery (Tashbeẓ, pt. 3 no. 46). The authorities, however, continued to differentiate between justified taxes and confiscations and those without justification (Sh. Ar., ḤM 369:6–11). In practice the way this distinction operated was decided in every individual case, in accordance with the conditions at the actual place and with the substance of the tax. According to the talmudic halakhah an unlimited tax is not to be recognized, but later it was declared valid by the posekim if it was for "great needs," such as financing a war (Haggahot Mordekhai, BB no. 659). Even taxes which were "wicked and cruel" were, from sheer necessity, at times recognized as legal. Thus it was decided that the rule that taxes which have no limit are not to be recognized is to be interpreted as referring to current constant taxes whose sum is at this time greater and beyond the usual amount; when the tax was ab initio not fixed, the king may place an arbitrary burden upon the community (Terumatha-Deshen, no. 341).

Bills Executed in Non-Jewish Courts

Beginning with the period of the geonim and until the 13th century the aim of limiting the acceptance of bills executed by non-Jewish courts prevailed (S. Assaf (ed.), Teshuvot ha-Ge'onim (1942), no. 66; Maim. Yad, Malveh ve-Loveh 27:1), but after this period most halakhists extended acceptance of these documents (Ramban, Nov., BB 55a, Rashba, Nov., Git. 10b). This approach may be inferred from the communal takkanot. Communities which undertook to rule in all matters according to Maimonides' Mishneh Torah stipulated thatin three halakhot his ruling was not to be followed, one of the three being Maimonides' halakhah that benefactions executed by non-Jewish courts were invalid (A.H. Hershman, Rabbi Isaac ben Sheshet Perfet (Eng., 1943), 88f.). Because of this tendency it was decided – in opposition to the halakhah of the geonic period that permitted the collection of bills executed by non-Jewish courts from free assets only (S. Assaf (ed.), Teshuvot ha-Ge'onim (1927), no. 123) – that such a bill is to be treated like any normal bill and can be collected also from property transferred by the debtor (see *Lien; Rashba, Resp. vol. 3, no. 69; Piskei ha-Rosh, Git. 1:10, 11). Likewise there was an extension of recognition of non-Jewish courts in which the bills were executed. The need to establish the honesty of the courts, mentioned by the early authorities (Rif. Halakhot Git. Ch. 1, no. 410; Maim. Yad, Malveh ve-Loveh 27:1), was to all intents and purposes no longer demanded, the tendency being to assume the uprightness of the courts until the contrary was proved (Piskei ha-Rosh, Git 1:10, 11). Not only were the judges recognized but also administrative officers like notaries (Ramban, Resp. no. 46), and among late authorities all kinds of documents issued by those authorities were recognized (Be'er Yiẓḥak, EH, 5:4; Sho'el u-Meshiv pt. 1, no. 10). See also *Shetar.

Changes in the Value of the Coinage

Another problem frequently dealt with in connection with dina de-malkhuta dina is that of changes in the value of the coinage. Thus it was laid down that if the government decided that a debt is to be paid in a certain way this could be done despite the possibility of being involved in a breach of the prohibitions against usury or theft (Sefer ha-Terumot, 46:5; Meisharim 6:1; Ḥatam Sofer, Resp., ḤM, no. 58).

Appointments to Religious and Juridical Office by the Government

The question of dina de-malkhuta dina was also raised in connection with appointments by the government to juridical and religious office in the Jewish community. Some held that the principle applied to such appointments. The opinion that was accepted is that, though indeed there is basis for the principle even in these cases, it is the duty of one so appointed not to accept the appointment if it is against the will of the members of the Jewish community (Ribash, Resp. no. 271; Rema, ḤM 3:4; Tashbeẓ, pt. 1 nos. 158, 162; Rema, Resp. no. 123; Hatam Sofer, Resp. ḤM no. 19).

BIBLIOGRAPHY:

A. Rodriguez, She'elot u-Teshuvot Oraḥ la-Ẓaddik (1785), 586–74a; D. Hoffmann, Mar Samuel, Rector der juedischen Akademie zu Nehardea in Babylonien (1873); J. Newman, Agricultural Life of the Jews in Babylonia between the Years 20 C.E. and 500 C.E. (1932); J. Horovitz, in: MGWJ, 80 (1936), 215–31; A. Roth, in: Ha-Soker, 5 (1937–38), 110–25; F. Kern, Kingship and Law in the Middle Ages (1939); P. Biberfeld, Dina de-Malkhuta Dina (Schriftenreihe des Bundes Juedischer Akademiker, vol. 2, n.d.); T. Leibowitz, in: Ha-Peraklit, 4 (1947), 230–8; I.M. Horon, Meḥkarim (1951), 41–134; ET, 7 (1956), 295–308; S. Bendov, in: Talpioth, 7 (1960), 395–405; 8 (1963), 79–84, 526–30; 9 (1964), 230–7; S. Lieberman and Y. Kutscher, in: Leshonenu, 27 (1963), 34–39; S. Safrai, in: JJS, 14 (1963), 67–70; M. Beer, in: Tarbiz, 33 (1963/64), 247–58; S. Albeck, in: Sefer Yovel… Abraham Weiss (1964), 109–25; D. Daube, Collaboration with Tyranny in Rabbinic Law (1965); Neusner, Babylonia, 2 (1966); L. Landman, Jewish Law in the Diaspora: Confrontation and Accomodation (1968); Elon, Mafte'aḥ, 39f. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:16, 53, 58ff., 71, 117, 123, 175, 557, 566, 570, 602, 624, 654, 670, 747, 760, 765, 3:1325, 1486, 1529ff, 1633ff; idem, Jewish Law (1994), I:16, 59, 64ff., 79, 132, 139, 173, 194; 2:600, 677, 688, 700, 745; 771, 809, 828, 921, 941, 936; 4:1583, 1767, 1818f., 1944ff.; idem, Jewish Law (Cases and Materials) (1999), 391–98, 369–88; idem, "Dinei Hasgara ba-Mishpat ha-Ivri," in: Teḥumin, 8 (1986), 263; S. Yisraeli, Hasgarat Avaryan le-Shiput Zar, ibid, 287; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot veha-Teshuvot shel Ḥahmei Sefarad u-Ẓefon Afrikah (1986), 1:81–83; B. Lifshitz and E. Shohetman, Mafteaḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 52–53; S. Shilo, Dina de-Malkhuta Dina (1975); S. Dikhovsky, "'Hilkhot Shittuf' – Ha-Im Dina Demalkhuta?", in: Teḥumin, 18 (1998); A. Sherman, "'Hilkhot Shittuf,' le-Or Mishpetei ha-Torah," in: Teḥumin, 19 (1999), 205; Y. Rivlin, Ha-Yerushah ve-ha-Ẓeva'a ba-Mishpat ha-Ivri (1999) 293–304.