THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 297 (part five) • Dina D’Malchuta Dina - Abiding by the Laws of the Land

As I sit at my computer preparing this lesson, we are getting ready to read Mas’ei. From the text it is obvious that Gush Katif is part of the Land of Israel. In the midst of all the turmoil where the Israeli government has embarked on giving away part of our heritage from Hashem, a question that frequently arises, especially with the establishment of the State of Israel, for which we thank Hashem every day, does the doctrine of Dina D’Malchuta Dina (hereafter referred to as “Dina”) apply to the State of Israel? As will be seen below, that it does, but that does not give the government the right to act contrary to the Torah.

Therefore we are now discussing other matters over which a government has jurisdiction, such as taxes, property rights, etc. as will be shown below. In the prior lessons in discussing the halachic theories of the concept of Dina, there was the theory of R. Eliezer of Metz (Germany, 1115-1198, one of the Tosafists) who stated that the king owns the land and he may deport all those who do not abide by his laws. Since a Jewish government cannot deport Jews from the country, Dina will not apply in the land of Israel. This is also the view of R. Yosef Habiba (Spain, beg 15th century; Nemukai Yosef on Alfasi, Nedarim 28a) who further adds that all of the powers enumerated in the Book of Samuel regarding a king are not permitted to the Jewish king [read “government”]. R. Solomon b. Adret (Rashba, Spain; 1235-1310; response I: 637) holds that a Jewish king in a non- Jewish country must also be obeyed under the Dina doctrine.

(I believe that this last view could be used against our brothers who refuse to recognize the State of Israel). Rabbi Adin Steinsaltz and I have semi- annual forums and on April 27, 1989 our topic was Dina D’Malchuta Dina. In preparation for that forum, in addition to research, I interviewed R. Avraham Shapira, the then Chief Rabbi of Israel and asked whether he thought that the doctrine of Dina applied to the State of Israel. He said he was certain that the doctrine of Dina applied to the State of Israel. He ended our conversation with the thought that if there are persons who sell religious articles and do not pay their income taxes, such religious articles may not be proper to be used since such persons would be violating the concept of Dina D’Malchuta Dina. I also interviewed my friend, R. Aharon Lichtenstein, one of the great Talmudic scholars of our time, Rosh Yeshiva of Yeshivat Har Ezion, and he wrote out his view in a concise statement that Dina D’Malchuta Dina did apply to the Land of Israel.

Conflict with Halacha
As state by R. Shabtai Cohen (Lithuania, Germany; 1622-1663, Schach on Hoshen haMishpat 73 (39)) Dina D’Malchuta Dina is not followed if it contravenes a Torah law. See also the comments of R. Menachem Meiri (R. Menachem b. Solomon; Provence, France; 1249-1306; Meiri, Beit HaBechira on Baba Kama 113) and Professor Menachem Elon’s statement, “According to all opinions Dina D’Malchuta Dina does not apply to the category of laws dealing with things that are prohibited and permitted [ritual laws].” (Prof. Menachem Elon, Germany, Israel 1923-; former judge Israel Supreme Court, Hamishpat haIvri volume 1, p. 117) Similarly, there is no permission granted to use secular Gentile courts instead of going to a Beth Din. As stated by R. Yosef Kolon (France, Italy; 1410-1480; response 187) Dina D’Malchuta Dina does not grant such permission. So too, R. Moses Zaccuto (Amsterdam, Poland; 17th century; Remez, response 37) held that commercial conflicts among the Jewish community cannot be adjudicated in the secular courts of the land. A similar result was reached by R. Chaim Yosef David Azulai (Jerusalem, North Africa, Italy 1724- 1806, Tu Ayin, response 17) in a case involving inheritance laws. The Jewish community had apparently permitted its citizens to sue in matters of inheritance in the secular non-Jewish courts. R. Azulai found this is not really the custom of the community and thus the Jewish heirs could not sue in the secular courts. He did leave the door open if this were found to be the custom in a community so that the law could be further examined.

Some of the examples as found in the response literature set forth:
An example given by R. Mordechai Jaffe ((Poland, 1536-1612, Lebush Eer Shushan 369:11) is that the courts of the government permit a case to be decided by the testimony of one witness or witnesses not qualified in halacha. Such laws are not part of the Dina D’Malchta Dina.

R. Ovadya Yosef, while he was chief rabbi of Egypt in Cairo, was confronted with the following situation. The Egyptian government had published a decree that every religious court had to have a lawyer on it. Thus if a Beth Din had three judges, one would have to be a lawyer recognized by the state. He was asked if the community had to abide by the decree under Dina D’Malchta Dina. He answered with a definite NO. There was no way that lawyers who were mostly ignorant of Jewish law, could sit on a Beth Din.

In a case that came before the author of the Shulhan Aruch in the 16th century, Reuven was hard pressed for cash and he loaned money to Shimon with interest which is absolutely forbidden by halacha, but legal under the laws where they lived. Could Reuven sue Shimon to recover the interest? R. Karo held, absolutely not. If it were permitted then all halacha would be set aside under the guise of Dina D’Malchta Dina. He held that Reuven should have sold some of his considerable assets rather than lend money on interest.

In all cases involving the question of whether Dina D’MAlchta Dina applies, there is a thin line that separates the use of the secular law and its courts and not granting permission. On the one hand, most people, especially business men and their lawyers, know the secular law and have such law in mind when conducting their business. On the other hand there are circumstances where a Jew may be in violation of halacha by not using halachic law. In these lessons I am trying to point out some of the problems involved.

In future lessons - perhaps with a break from "Dina" for a few weeks - we will discuss individual subjects to which the doctrine of Dina D’Malchuta Dina applies.

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