Abiding by Civilian Law: Difference between revisions

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##Some say that dina d'malchusa dina applies to all financial matters<ref>Ra’aviah brought in Beis Yosef C.M. 369</ref>
##Some say that dina d'malchusa dina applies to all financial matters<ref>Ra’aviah brought in Beis Yosef C.M. 369</ref>
##Some say that dina d'malchusa dina applies to government legislation, but not to rulings of the secular court. <ref>Sema 369:21 trying to resolve a contradiction between Rama C.M. 369:8 where he says dina d'malchusa applies across the board and 369:11 where he limits it to things which are beneficial for the king or for the good of the people, but not about going to secular court</ref>
##Some say that dina d'malchusa dina applies to government legislation, but not to rulings of the secular court. <ref>Sema 369:21 trying to resolve a contradiction between Rama C.M. 369:8 where he says dina d'malchusa applies across the board and 369:11 where he limits it to things which are beneficial for the king or for the good of the people, but not about going to secular court</ref>
##Some say that dina d'malchusa dina applies to government legislation and rulings of the secular court whenever they are for the benefit of society, but personal matters are not under the jurisdiction of dina d'malchusa.<ref>Rav Moshe Feinstein (Igros Moshe C.M. 2:62) quotes the Sema's explanation and disagrees discussing bankruptcy laws</ref>
##Some say that dina d'malchusa dina applies to government legislation and rulings of the secular court as long as they are for the benefit of society, but personal matters are not under the jurisdiction of dina d'malchusa.<ref>Rav Moshe Feinstein (Igros Moshe C.M. 2:62) quotes the Sema's explanation and disagrees discussing bankruptcy laws. See Rav Asher Weiss (Parashas Chukas, B’inyan Dina D’malchusa Dina. Shut Minchas Asher 2:121:4:4) where  he applies dina d'malchusa to cases such as traffic laws, sanitation laws, and mandatory inoculation.</ref>
##Some say that dina d'malchusa applies to any laws that are for the benefit of society.<ref>Rav Asher Weiss (Parashas Chukas, B’inyan Dina D’malchusa Dina. See also Responsa Minchas Asher vol. II, end of 121 and 124) where  he applies dina d'malchusa to cases such as traffic laws, sanitation laws, and mandatory inoculation.</ref>
#Dina D'malchusa is ineffective in causing an Asmachta to be binding.<ref>Emek Hamishpat 1:31:18 citing Maharsham in Mishpat Shalom 207:15</ref>
#Dina D'malchusa is ineffective in causing an Asmachta to be binding.<ref>Emek Hamishpat 1:31:18 citing Maharsham in Mishpat Shalom 207:15</ref>
#We do not say Dina D'Malchusa when it contradicts the laws of the Torah.<ref>Shach C.M. 73:39. Rav Asher Weiss Minchas Asher 2:122 explains that this means we don't follow the dina d'malchusa when it contradicts with Torah values. Chazon Ish C.M. Likutim 16:1 questions this as all cases are against Torah Law</ref>
#We do not say Dina D'Malchusa when it contradicts the laws of the Torah.<ref>Shach C.M. 73:39. Rav Asher Weiss Minchas Asher 2:122 explains that this means we don't follow the dina d'malchusa when it contradicts with Torah values. Chazon Ish C.M. Likutim 16:1 questions this as all cases are against Torah Law</ref>

Revision as of 00:53, 5 July 2019

In general, there is a halachic principle called dina d'malkuta dina, which means that Halacha demands obedience to the laws made by civil authorities. However, it's important to note that this principle is limited and is discussed at length by the modern day Rabbinic authorities.[1]

Source

  1. Many assume that dina d'malchusa is binding from the Torah.[2] Some say dina d'malchusa is Rabbinic in nature[3]
  2. The Gemara says Dina D'Malchusa Dina ("the law of the land is the law").[4]
    1. Some explain this is a social contract.[5]
    2. Others explain that the land belongs to the king.[6]
    3. Others explain that the king has dominion over all property in the country.[7]
    4. Others explain that the Torah has a concept of a king, and that only makes sense if we must follow his laws.[8]
  3. Dina D'Malchusa is determined based on how a law is enforced, not how it is written on the books[9]

To Who Does it Apply

  1. Dina d'malchusa dina applies to all appointed officials who are keeping to the local laws, not just the king.[10]
  2. Some say Dina D'malchusa doesn't apply when there is an interaction between two Jews.[11] Others argue that it applies between all people.[12]

To Which Laws Does it Apply

  1. There is a discussion as to which laws one is obligated to follow the dina d'malchusa:
    1. Some say that dina d'malchusa dina only applies to laws related directly to the land (i.e. real estate).[13]
    2. Some say that dina d'malchusa dina applies to all financial matters[14]
    3. Some say that dina d'malchusa dina applies to government legislation, but not to rulings of the secular court. [15]
    4. Some say that dina d'malchusa dina applies to government legislation and rulings of the secular court as long as they are for the benefit of society, but personal matters are not under the jurisdiction of dina d'malchusa.[16]
  2. Dina D'malchusa is ineffective in causing an Asmachta to be binding.[17]
  3. We do not say Dina D'Malchusa when it contradicts the laws of the Torah.[18]

Where Does it Apply

  1. Dina d'malchuta dina applies to democracies such as the United States.[19]
  2. Some say that it doesn't apply to Israel.[20]

Stealing from the Government

  1. see Stealing from the government

See Also

Secular Court

Sources

  1. ↑ See article by Rabbi Ari Wasserman
  2. ↑ Rashi Gittin 9b s.v. “chutz,” Meiri Nedarim 28a. Vilna Gaon C.M. 369:34
  3. ↑ Beis Shmuel C.M. 28:3
  4. ↑ Baba Kama 113a, Nedarim 28a, Gittin 10b, Bava Basra 54b. The principle of dina di'alchusa dina is accepted as the halacha (Ritva Nedarim 28a says that there's no opinion in the Gemara that argues with it). Rambam Hilchot Gezelot 5:11 and Shulchan Aruch Choshen Mishpat 369:6 codify this principle as halacha regarding the taxes of the government. Shulchan Aruch C.M. 104:2 quotes this with regards to paying debts.
  5. ↑ Rambam Hilchot Gezelah Vaveidah 5:18 and Rashbam Bava Basra 54b s.v. "Viahamar Shmuel" writes that the taxes and laws of the king are binding because the people accept it upon themselves. The Terumas HaDeshen 341 notes that this is true even if you voted against this government. Legislation is part of the way government runs and by living in the country, you establish that you accept its laws. Avnei Nezer YD 312:12 elaborates on this idea and explains that it is based on the phrase על ממלכתו הוא ובניו בקרב ישראל (Devarim 17:20) that the authority of a king derives from the consent of his people. An expression of how dina d'malchusa is based on the people is that the people of that country accept to use the coins of that king, and the Rambam says this shows their acceptance of the king. (Gra C.M. 369:9).
  6. ↑ Ran Nedarim 28a s.v. "Bamoches" says because the land belongs to the king, he can make the laws, and if you don't abide he can kick you out of his land. Shitah Mekubetzes Nedarim 28a explains that this is just like all property owners who can insist on standards on their property. Chatam Sofer 1:44 writes that the Ran is only referring to taxes that are against the will of the people, but laws related to custom and manners even the Ran agrees that these are binding because the people agree to the king's dominion. Rav Yakov Arieli extends the Chatom Sofer to any taxes that are for the benefit of the people such as money spent on highways and bridges.
  7. ↑ Rabbenu Yona (Aliyot of Rabbenu Yona Bava Basra 54b s.v. "Umi Amar") says this works like hefker beis din hefker, that the king has dominion over all property.
  8. ↑ Rav Asher Weiss (Shut Minchas Asher 2:121). Mabit (Kiryat Sefer Gezela 5:14). Meiri (Nedarim 28a) and the Vilna Gaon (C.M. 369:34) say that this is derived from the laws of a king derived from Sefer Shmuel Alef Perek 8.
  9. ↑ Article by Rabbi Ari Wasserman quoting from Rav Pinchas Scheinberg with regards to speeding. Speeding is forbidden under dina d'malchusa, but the definition of speeding is dependent on how it is enforced, not the posted speed limit. Rabbi Aryeh Lebowitz quotes both sides of this discussion at 8:30 in this shiur https://www.yutorah.org/lectures/lecture.cfm/781443/rabbi-aryeh-lebowitz/ten-minute-halacha-obeying-traffic-laws/
  10. ↑ Shut Rashba 1:637
  11. ↑ Rav Asher Weiss (Shut Minchas Asher 2:121:4:9) quotes the Chazon Ish who holds like Rabbenu Yonah Bava Batra 54 that dina d'malchusa is only between a Jew and a non-Jew
  12. ↑ Rav Asher Weiss (Shut Minchas Asher 2:121:4:9) quoting Rama C.M. 369
  13. ↑ Rama C.M. 369:8. Rav Asher Weiss (Shut Minchas Asher 2:121:4:3) suggests that this works nicely with the opinion of the Ran quoted above that dina d'malchusa works because the land belongs to the king. However, according to the Rashbam quoted above that dina d'malchusa is a social contract, one could argue that there is no reason to distinguish between laws related to the land and other laws. However, he suggests that even according to the Ran, you don't have to distinguish as since the land belongs to him, he makes the rules
  14. ↑ Ra’aviah brought in Beis Yosef C.M. 369
  15. ↑ Sema 369:21 trying to resolve a contradiction between Rama C.M. 369:8 where he says dina d'malchusa applies across the board and 369:11 where he limits it to things which are beneficial for the king or for the good of the people, but not about going to secular court
  16. ↑ Rav Moshe Feinstein (Igros Moshe C.M. 2:62) quotes the Sema's explanation and disagrees discussing bankruptcy laws. See Rav Asher Weiss (Parashas Chukas, B’inyan Dina D’malchusa Dina. Shut Minchas Asher 2:121:4:4) where he applies dina d'malchusa to cases such as traffic laws, sanitation laws, and mandatory inoculation.
  17. ↑ Emek Hamishpat 1:31:18 citing Maharsham in Mishpat Shalom 207:15
  18. ↑ Shach C.M. 73:39. Rav Asher Weiss Minchas Asher 2:122 explains that this means we don't follow the dina d'malchusa when it contradicts with Torah values. Chazon Ish C.M. Likutim 16:1 questions this as all cases are against Torah Law
  19. ↑ Halachos of Other People's Money pg. 34. see note 71 where he quotes from Rav Yosef Eliyahu Henkin (Writings of Rav Yosef Eliyahu Henkin 96:8), Rav Shlomo Zalman Auerbach (Maadanei Eretz 20:8), Rav Moshe Feinstein (Igrot Moshe CM 2:62), Shevet Halevi 2:58. This makes sense with the Rashbam and Rambam that dina d'malchusa is a social contract. One could argue that according to the Ran that the reason for dina d'malchusa is that the king owns the land, this shouldn't apply to a democracy. However, Pe’as Sadecha (165) writes that even according to the Ran, dina d’malchusa dina applies because in a democracy the country belongs to the people, and their elected representatives have the same power as a king to legislate.
  20. ↑ Ran Nedarim 28a s.v. Bamoches writes that Dina Dmalchuta is based on the fact that the king owns the land and everyone has to abide by his law. However, in Israel where Hashem gave the land to the Jewish people, there is no Dina Dmalchuta. This is quoted in Darkei Moshe CM 369:3 and Gra 369:35. Emek Hamishpat 1:31:18 writes that in his opinion we follow the Ran. The Chasam Sofer C.M. 44 says that according to the Rashbam, dina d'malchusa still applies. The Rambam (Hilchos Gezeilah 5:11), Tur and Shulchan Aruch (Choshen Mishpat 369:6) all rule against the Ran. This is also the opinion of Rav Asher Weiss (Parashas Chukas, B’inyan Dina D’malchusa Dina).
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