Source #2: A Mishna in Tractate Gitin, 1:5 states that all legal documents entered in the registries of non-Jews are valid even if their signatories are non-Jews, except divorce documents and writs freeing slaves. The Talmud (Gitin 10b) questions how deeds of gift can be valid since there has not been a valid act of acquisition to acquire the gift. The Talmud answers that Shmuel (first generation Babylonian Amora; born about 180, died in 257) has said that Dina D’Malchuta Dina, the law of the land must be followed.

Source #3: A Mishna (Baba Kama 10: 1) states that no money may be taken in change from the box of custom collectors. (It is assumed that the money in these boxes are ill-gotten.) The Talmud (Baba Kama 113a) asks why is it assumed that the money is ill-gotten; has not Shmuel enunciated Dina D’Malchuta Dina must be followed, and obviously the money in their boxes is legitimately there. It is answered in the Talmud that these customs collectors had no limit and were not acting lawfully. As stated by R. Menachem Meiri; Provence, (France 1249-1306; Meiri Beit HaBechira on Baba Kama 113), the inference is that had they been acting lawfully, one could take change from them.

Source #4: The Talmud (Baba Batra 54b) discusses an interesting situation: A Gentile sells a field to a Jew, who pays money to the Gentile but did yet receive the deed to the field. Shmuel stated that during the hiatus between the payment of the money and the receipt of the deed, the field is owner less and if any Jew performs an act of acquisition to the field, such as plowing in it, he acquires it. The reason is that according to halacha the field is not acquired by the payment of money alone, so that the field does not yet belong to the Jew until he receives the deed; on the other hand, once the Gentile has been paid, he no longer considers himself to be the owner of the field. The Talmud questions this ruling since it was assumed that under Persian law at the time when the discussion took place, a person could not acquire land except by deed and the Jew who performs the act of plowing the land would not acquire it, although he would under Jewish law. And as the Talmud continues, there is the statement of Shmuel that the law of the land must be followed, Dina D’Malchuta Dina.

What emerges is that the doctrine of Dina D’Malchuta Dina is not questioned by anyone in the Talmud. As stated by R.Yom Tov b. Abraham Ishbili (Ritva; Seville Spain; 1250-1330; on Nedarim 28a) there is no one who disputes the doctrine.

Political theories of Dina D’Malchuta Dina
There are several political theories why Dina D’Malchuta Dina is binding on all Jews regardless of the land where they reside. (What is set forth under political theories were enunciated hundreds of years before some of the great Gentile political scientists of note who helped shape Western democracy. Also most of these theories of the Rabbis were spelled out in one or two sentences rather in volumes.

Theory 1: R. Samuel b. Meir (Rashbam; Germany 1080-1174; commentary to Baba Batra 54) in his commentary states that the underlying theory of why one must abide by the law of the land in which he lives is that all the inhabitants of the land have entered into a social compact to do so. “All of the inhabitants of the kingdom have taken upon themselves by their own free will the statutes of the king and his laws. This is also the view of R. Isaac b. Moses of Vienna (Germany 1180-1250; Or Zarua, volume 1, response 745.) This is also the view of R. Moses b. Nachman (Spain, Israel; 1194-1270, Ramban response 46.)

Theory 2: Building on theory #1, R. Israel Isserlein (Germany 1390-1460; Terumat haDeshen response #341) says that in most situations the citizens do not actually enter into a formal agreement agreeing to be bound by the laws of the land. Instead such agreement is implied in all countries; by residing within the land it is presumed that the citizens agree to be bound by the laws of the land.

Theory 3: A singular opinion is expressed by R. Eliezer of Metz (a Tosafist; Germany, 1115-1198): The king owns the land and he may deport anyone who does not abide by his laws. The citizens are therefore required to obey the laws or leave the country. Although this is a singular theory it is cited by many others such as R. Solomon b. Adret (Barcelona, Spain; 1245-1310; Rashba commentary on Nedarim 28.) and R. Nissin b. Gerondi (Spain, 1310-1375; Ron commentary on Nedarim 28a.) As will IYH be explained in a future lesson, this theory has application in our own times in the State of Israel.

Theory #4: As explained by R. Solomon b. Adret: (Rashba commentary on Yebamot 46a), when the ruler of the land conquered the land, he also conquered all of the citizens there as his prisoners, and they are thus obligated to follow the laws of the land. This is based on a Talmudic passage (Gitin 38a) that shows that a Gentile can acquire a Jew by an act of possession based on the verse “And he took them a captive” (B'midbar 21:1). R. Yosef Habiba (Spain beg. 15th century; Nemukai Yosef on Alfasi Yebamot 46b) takes it even further by stating that the Jew who is punished for not paying his taxes may be sold as a slave, and must therefore abide by the laws of the land. As for the question raised that the laws of slaves are not applicable nowadays, he answers that there is still a vestige of the laws of slavery applicable today (in his time, i.e. 15th cent.). Whether the doctrine of Dina D’Malchuta Dina applies to acquiring persons today is the basis of a discussion by the Tosafists. (See Tosafot Yebamot 26a.) R. Joshua Falk explains that this holds true even if the citizen owns his own piece of land. (Poland; 1555-1614; Sma on Choshen haMishpat 369: 12).

IYH the next lesson will continue with other political theories that form the basis of the doctrine of Dina D’Malchuta Dina.

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

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