THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 295 (part three) • Dina D’Malchuta Dina
Abiding by the Laws of the Land

In the last two lessons we discussed the political theories underlying the concept of a Jew having to abide by the laws of the land where he lives. So far we have presented 4 theories. In this lesson we hope to set forth the last five theories:

Theory 5: R. Moses di Triani (Italy, Israel; 1490-1570; Mabit, Kiryat Sefer on Maimonides, Laws of Robbery ch. 5) bases Dina D’Malchuta Dina on the divine right of kings, that is, all of the rights given to the king in Shmuel Alef 8: 11-17, which apply to Jewish kings, also apply to Gentile rulers.

Theory 6: Rabbi Moshe Sofer ( Hungary; 1762-1832; Chatam Sofer, Orach Chaim, response 208, Hoshen haMishpat response 44) explains that the following verse in Shir HaShirim (8:12) shows that the Gentiles can make laws and go out to war and the Jews must abide by such laws. “He gave His vineyard to harsh, cruel guardians each one came to extort his fruit, even a thousand silver pieces”. Rashi explains that the verse refers to the Jewish people who have been given over to the harsh rulers of Babylonia, Mede, Greece and Rome, who would exhort whatever they could by imposing exorbitant taxes, custom duties, and levies and keep them for themselves.

Theory 7: A very ingenious theory is put forward by Rabbi Issar Zalman Meltzer (Lithuania, Israel; 1870-1935, in his Eben haEzel commentary on Maimonides, Laws of Wounding and Damaging 8:5) who writes that the Gentile world is commanded to observe the seven Noahide laws, one of which is to establish a system of justice;under that system there must be laws that all have to abide by, including Jews. His conclusion is based on two statements of Rashi that explain why the Talmud says that all documents emanating from a Gentile court are valid except bills of divorce (get) and writs freeing slaves. Rashi writes that all of the other documents are valid under the Dina doctrine, although both parties to the transaction are Jewish; the Gentiles are commanded to set up a system of justice.

Theory 8: There is a concept in halacha that states that the Beth Din may expropriate property belonging to individuals known as HEFKER BETH DIN HEFKER.

Under this concept as explained by R. Yonah Gerondi (Spain; 1200-1263) quoted in Sheetah M’Kubetzeth (R. Bezalel Ashkenazi; Alexandria, Egypt, died 1530; Shita M’Kubetzet,Baba Batra 54b) the concept of Dina may flow from the concept of HEFEK BETH DIN HEFKER. The entire topic of this theory is the subject of two essays by Chief Rabbi Israel Meir Lau, (Yachel Yisroel, Poland, Israel 1937-, vol. 1, essays 41,42.)

Theory 9. My father, my master, R. Eliyahu haKohen Quint (Poland, America, 1901-1974; Menuchas Eliyahu, vol.2, p.99) in a brilliant analyses of the entire Dina concept writes that there may be a combination of reasons, such as the divine right of kings and the social compact theory, and the king owns the land and he may deport anyone who does not abide by his laws.

Types of government to which the doctrine applies
Rambam gives us a test as to which governments the doctrine of Dina applies. (Maimonides - R. Moses ben Maimon; Spain, Egypt 1135-1204; Laws of Robbery and Lost Property 5:18) It applies if the king [use government] issues coins for the land and they are circulated by the citizens and they have accepted him and definitely regard him as their master and they are his servants. But if his coins do not circulate throughout his kingdom, he is not regarded as a ruler, but rather as a robber who uses force; his troops are armed robbers, his laws are not binding, and the king and his servants are deemed to be robbers. R. Yosef Karo in Shulhan AruchHoshen haMishpat paraphrases the first sentence of Rambam. (1488-1575; Spain, Turkey, Israel, 369:2).

Types of laws to which the doctrine of Dina D’Malchuta Dina applies
The codes and commentators on the Talmud set up tests to determine if the particular law that applies to a situation must be followed under the doctrine of Dina. I will set forth a few now and IYH in the next lesson.

There is a difference of opinion regarding some of the criteria as to which types of laws are included in the doctrine of Dina.

According to one school of thought as held by Ramban (R. Moses b, Nachman, Ramban on Baba Batra 55a; Spain, Israel; 1194-1270 - not to be confused with Rambam, Maimonides) and R. Menachem b. Solomon (Provence, France, 1249-1306; Beit HaBachira on Baba Kama 113b) there are four things required:

(1) It is a law that has been in existence for some time in the kingdom. As explained by Rabeinu Tam (R. Yakov Tam, France 1096-1171 as cited in the response of the Tosafists, response 12 and Maharik (R. Yosef Kolon, France, Italy; 1410-1480, response 66).
(2) It is well known to the population of the country.
(3) It is found on the statute books of the country.
(4) It must be applied to all of the citizens of the country.

There is a difference of opinion that if the king levied a tax on one of the states within his kingdom and not on others, if this is part of the doctrine of Dina. Rosh (R. Asher b. Yehiel Germany, France, 1250-1327; on Nedarim 28a), holds that it is not part of the doctrine of Dina. However, Maharik (see above) holds that it is part of the doctrine of Dina if the government levied a tax or regulations for one industry, then it is part of the doctrine of Dina. This last holding is disputed by R. Elijah of Vilna (Lithuania, 1270-1297, Bi’ur haGra on Hoshen haMishpat 369:33). Resulting from both these views are the opinions of R. Moses Isserles (Poland 152-1572, Darkai Moshe on Tur Hoshen haMishpat 369:33) and R. Azriel Hildersheimer (Germany, 1820-1899, Rav Azriel vol. 2, response 168) and R. Moses Jacobowitz (Germany, United States, Zichron Moshe, response 16) who hold that laws enunciated by the courts, as distinguished from the legislative or executive branches of government do not qualify under the doctrine of Dina.

In the next lesson, does the law have to fulfill a governmental function to qualify under the doctrine of Dina? If it qualifies, the Jews living in the land must obey the laws according to halacha.

The subject matter of this lesson is more fully discussed in volume IX chapter 369 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il