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
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
(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.
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
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).
Scope and Limitations
We must bear in mind when discussing dina de-malkhuta dina ("the law of the kingdom is law") that it is an underlying principle in the subsequent development and creativity of Jewish law. It is apparent from the Talmud that this principle does not only govern the relationship between the individual and the authorities but also relates to civil cases between private parties. Indeed, during the talmudic era, as long as a central Jewish authority existed, this principle did not restrict Jewish law in any way. But, with the dispersion of the people to various centers and the cessation of central authority, from the tenth century onwards, Jewish law was in danger of turning into an academic subject, its development obstructed and creativity suppressed. The halakhic Sages were aware of this and prevented it by limiting the scope of the rule 'the law of the kingdom is law'. They subordinated the halakha to Gentile law only in particular cases and conditions and rejected its application to civil cases between private parties as discussed above. To this end, the talmudic sources implying the wider scope of the rule were harmonized and reinterpreted (Sefer Haterumot 46, 8, 5) and sometimes the apprehensions of undermining the Jewish legal system are explicitly stated (Meiri, Beit ha-Beḥirah, BK 113b). It might well be that the very limitations of the rule resulted that when it had been applied, the foreign legal elements were not merely recognized and validated but also integrated into Jewish law. (See Bibliography, Elon, (1988), 61–66; Elon (1994), 68–73.)
Criminal Jurisdiction by Non-Jewish Authorities Recognized by Jewish Law
The rule "the law of the kingdom is law" was employed for this purpose by the Israeli Supreme Court in the case of Aloni (HCJ, 852/86, Aloni v. Ministry of Justice, judgment, 41 (2), 1). The Supreme court was asked to decide whether to instruct the State to extradite to France a man charged with murder in a French court. The defendant was already declared extraditable according to Israeli Extradition Law and in accordance with the treaty between the two countries. But the Minister of Justice decided not to implement the extradition, due to the potential life-threatening situations that the defendant may face in the French jail from other prisoners. Justice Menachem Elon extensively discussed the approach of Jewish Law on the subject of extradition as it was treated throughout the Dispersion when the gentile authorities demanded from the Jewish congregations the handing over of Jews accused of severe criminal charges. The first part of Elon's opinion discussed whether Jewish Law enabled the extradition of one accused of serious crimes to gentiles on the grounds of the criminal accusation itself (pp. 76–90, of judgment; q.v. "Extradition").
The second part of the opinion relates to the issue of whether Jews have to inform the gentile authorities about criminal acts committed by Jews on the grounds that gentile jurisdiction to try all citizens is recognized within the framework of the rule "the law of the kingdom is law." The following is a brief summary of the main points of that decision. Solomon ben Abraham Adret (Rashba) in a Responsum quoted by the Beit Yosef commentary on Tur (ḤM 308/12) relates to a case in which the Jewish community was requested by the gentile authorities to investigate whether a certain Jew had committed a felony, in order that he be punished. Rashba relying on the principle of "the law of the kingdom is law" ruled that when a Jewish court was acting by license of the authorities, there was no need to observe the usual requirements of admissible evidence by Jewish law such as forewarning, competent witnesses etc. – even in capital cases because "if we do not say this, but insist on adherence to Biblical law in procedural law, the world would become a wasteland and murderers and their cronies would proliferate …" (ibid. according to the version published by Kaufmann in: JQR, 8 (1896), 228, 235–6; p. 90 in Aloni judgment).
R. Samuel *Medina (Responsa Maharashdam, ḤM, no. 55) upheld the opinion of a Responsum by Abraham ben David of Posquières (Rabad) and clearly states on the basis of "the law of the kingdom is law" that measures taken by the government to punish criminal felons were entirely justified, as it was within the authority of the government to legislate laws in its jurisdiction (p. 91, Aloni judgment).
In the 19th century R. Moses Schick (Responsa Maharam Schick, ḤM, no. 50) cites the abovementioned responsum by Rashba in a case where it was known, though not proved, in the Jewish community that a certain woman had murdered her husband. The question was whether to hand her over to the non-Jewish authorities. Rabbi Schick ruled that punishment meted out by the authorities was legitimate for "…all they do to improve social order is legitimate" (pp. 91–92, Aloni judgment).
In this context, Justice Elon also quotes R. Meir Dan Plotzki (Poland, 19th–20th cent.; Kelei Ḥemdah, Mishpatim I) who says that the talmudic prohibition of seeking remedy in non-Jewish courts did not apply to European state courts of his time, and it was preferable to bring cases before them because dina de-malkhuta dina.
On the basis of these sources, Justice Elon ruled that the provision of Extradition Act 5714 – 1954 was congruent with Jewish Law which negates evasion of criminally charged suspects from standing trial, especially in capital cases, if the Jewish court was unable to adjudicate them. Numerous great halakhic authorities were of the opinion that such a suspect should be handed over to a court which had the authority to try him, either by the authority of Jewish Law itself, or under the authority of the principle dina de-malkhuta dina. (p. 96, Aloni judgment). Rabbi S. Israeli disagrees (see bibliography) with this conclusion. In his opinion the scope of 'the law of the kingdom is law' is limited to the particular country (and it cannot be invoked in an international situation). For a more extensive discussion see *Extradition.
The Validity of the Rule Concerning Israeli Law
Since the establishment of the State of Israel, rabbinical courts frequently address themselves to the relationship between Israeli Civil Law and Jewish Law. On many occasions, rabbinical courts have conferred binding authority on the state law within the halakhic discourse of Jewish Law on the basis of the rule dina de-malkhuta dina.
1. THE ADOPTION OF VARIOUS STATE LAWS BY RABBINICAL COURTS. The application of Israeli Law by rabbinical courts on various matters, and based on usage or community enactment, was discussed by the Israeli Supreme Court in the case of Vilozhny (HCJ 323/81 Vilozhny v. The Great Rabbinical Court, judgment 36(2) 733). The appellant requested the court to annul the decision of the Great Rabbinical Court which had ruled that the appellant had to vacate the apartment in which he lived with his wife, after having been granted a divorce, due to the violent behavior of the husband. The appellant argued that the court should have recognized that the apartment was occupied by him according to the Landlord and Tenant Law (Consolidated Version), 5732 – 1972, and thus not order the sale of the apartment as if it were vacant. The Rabbinical Court determined that its ruling did not contradict the landlord and tenant law "which was given the same halakhic validity as any usage or regulation enacted by the community." The Supreme Court (Justice M. Elon) relates to this comment of the Rabbinical Court, and adds that rabbinical courts in numerous instances tend to adopt Israeli Law, describing the various methods of adoption, illustrated by examples. We shall quote here implementations based on dina de-malkhuta dina in order to further clarify this point.
The court noted that "when the principle of 'the law of the kingdom is law' is evoked, the ruling by State Law is given binding validity, but it does not become a part of the Jewish Law" (p. 740 HCJ, Vilozhny).
It has to be noted that in a later ruling (file 307/38 RC judgment 12 279 p. 294) the Haifa District Rabbinical Court ruled (on the basis of Responsa Ḥatam Sofer, ḤM no. 44) that even though the applicability of dina de-malkhuta dina in the Land of Israel was a matter of controversy (see above), even the opponents concurred that, concerning usage and enactments with the aim of regulating trade to the public benefit, the rule applied also in the Land of Israel. Based on this principle, the court ruled that transfer of landed property which was not entered in the registry office was not valid, even if the act of acquisition had met the requirements of Jewish Law, because the law requiring registration as a precondition for a transaction of property intended to prevent fraud in land sales, and in such cases the rule of dina de-malkhuta dina was in force.
2. SPOUSES' JOINTLY OWNED PROPERTY PROCEDURES. A special case in which the question of using the rule of "the law of the kingdom is law" for the integration of State Law
A different view is expressed by R. Abraham Sherman, also a judge of the Great Rabbinical Court (Teḥumin, 18 (1988), pp. 32–40); 19 (1999), 205–20). His opinion is that laws and legal definitions not prompted by circumstances or social developments to improve the administration of proper order, but by the ideological inclinations of legislators or judges of the state courts, do not warrant the application of dina demalkhuta dina, because it contradicts the principles of the Torah. Furthermore, it cannot be factually ascertained that the Spouses' Property Procedure was unanimously accepted, and therefore presume that all marriages take place with the assumption that the jointly owned property would be divided according to this procedure. Hence, it is difficult to find a halakhic basis for the Spouses' Property Procedure. So when the issue was the allocation of matrimonial assets rather than an enactment for the public benefit, 'the law of the kingdom is law' ought not to be evoked.
3. THE RELATIONSHIP BETWEEN JEWISH LAW AND THE ISRAELI STATE LAW. Justice Elon, in his opinion on the above-mentioned Vilozhny appeal, also discussed the desirable principles for the relationship between the State (secular) and the rabbinical legal systems. The main points are as follows (pp. 740–42 HC judgment):
We may distinguish between three possible methods by which Rabbinical Courts could confer binding validity on Israeli Civil Law. One way is the recognition of the binding validity, based on the principle of 'the law of the kingdom is law' as explained above. The other method is adoption - by means of the legal basis of a custom (or usage) in Jewish Law that integrates a certain law which then becomes an integral part of it. If there was an existing public usage of a certain legal norm, this norm may be recognized in certain circumstances as part of the Jewish legal system and may even be valid in spite of contradicting a particular law in Jewish civil law. Rabbinical courts make frequent use of the legal basis of usage (situmta in talmudic terminology) in order to absorb various principles and laws from other legal systems (*minhag). The third method is legislation; the community or its leaders enjoy a limited measure of judicial authority and may make new laws in various legal spheres. In talmudic times this was called "the authority to impose punishments" (mesi'in al kiztan) but in later periods it has become known as "enactment of the public." These enactments have greatly enriched Jewish Law and became an integral part of it (*takkanot ha-kahal).
From time to time, rabbinical courts make use of the principle of dina de-malkhuta dina or the recognition of common usage in order to validate or absorb laws from other legal systems. However, there are rare instances in which rabbinical courts recognize a state law on the basis of an "enactment of the public." This method has a fundamental and far-reaching importance, because as we said, the law of the state thus becomes part of the Jewish legal system. In the Vilozhny appeal, the Supreme Court noted that the ruling of the rabbinical court, to which the appeal related, made use of this method with regard to the Landlord and Tenant Act, since the rabbinical court stated that "it was given the same halakhic validity as any usage or regulation enacted by the community." The court also noted that with regard to the Landlord and Tenant Law a ruling had already been given by Rabbi Obadiah Hadayah, that it should be regarded as an enactment made by the leaders of the community since "here we are not concerned with foreign laws, but with laws enacted by the government for the benefit of the people of the country…" (Responsa Yaskil Avdi, 6, ḤM no. 8).
During its development and history, Jewish Law has many times met the need to confront other legal systems, created by foreign nations. The need to cope with a different legal system created by the Jewish people itself, whose legislative and judicial institutions do not recognize the authority of the halakhah as their guiding principle, is a new phenomenon in Jewish history. The recognition and validation of Israeli civil law on the basis of dina de-malkhuta dina or even based on the authority of common usage indicate an approach that conceived the state legal system as an entity without any inherent creative connection with Jewish Law. Conversely, halakhic recognition and validation of the Jewish state based on
[Menachem Elon (2nd ed.)]
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