Difference between revisions of "Abiding by Civilian Law"

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#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>
 
#Dina D'malchusa generally doesn't apply when there is an interaction between two Jews. However, if it is a very reasonable law for the benefit of society it is binding.<ref>Even Shoham 111:5 applies the following sources to explain why copyright laws are halachically binding. Shach 356:10 writes that a local practice is binding for two Jews because it is understood that the contract was made with such assumptions. Kesot 259:3 writes that for a proper practice it is binding upon Jews to go beyond the law. Chatom Sofer CM 44 adds that any law for the benefits of the industry workers is binding. </ref>
 
#Dina D'malchusa generally doesn't apply when there is an interaction between two Jews. However, if it is a very reasonable law for the benefit of society it is binding.<ref>Even Shoham 111:5 applies the following sources to explain why copyright laws are halachically binding. Shach 356:10 writes that a local practice is binding for two Jews because it is understood that the contract was made with such assumptions. Kesot 259:3 writes that for a proper practice it is binding upon Jews to go beyond the law. Chatom Sofer CM 44 adds that any law for the benefits of the industry workers is binding. </ref>
#Dina D'malchusa is not limited to financial matters, but 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 not limited to financial matters, but 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> Others say Dina D'Malchusa is limited to laws related to land.<ref>Rama C.M. 369:8. 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 Rashba quoted above that dina d'malchusa is a social contract, there is no reason to distinguish between laws related to the land and other laws.</ref>
 
#Dina D'Malchusa is determined based on how a law is enforced, not how it is written on the books<ref>[http://www.workplacehalacha.com/wp-content/uploads/2014/12/Chapter-23-Dina-DeMalchusa.pdf 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 <nowiki>https://www.yutorah.org/lectures/lecture.cfm/781443/rabbi-aryeh-lebowitz/ten-minute-halacha-obeying-traffic-laws/</nowiki></ref>
 
#Dina D'Malchusa is determined based on how a law is enforced, not how it is written on the books<ref>[http://www.workplacehalacha.com/wp-content/uploads/2014/12/Chapter-23-Dina-DeMalchusa.pdf 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 <nowiki>https://www.yutorah.org/lectures/lecture.cfm/781443/rabbi-aryeh-lebowitz/ten-minute-halacha-obeying-traffic-laws/</nowiki></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</ref>
  
 
==Stealing from the Government==
 
==Stealing from the Government==

Revision as of 00:55, 2 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. The Gemara says Dina D'Malchusa Dina ("the law of the land is the law").[2]
    1. Some explain this is a social contract.[3]
    2. Others explain that the land belongs to the king.[4]
    3. Others explain that the king has dominion over all property in the country.[5]
  2. Dina d'malchusa dina applies to all appointed officials who are keeping to the local laws, not just the king.[6]
  3. Dina d'malchuta dina applies to democracies such as the United States.[7]
  4. 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).[8]
    2. Some say that dina d'malchusa dina applies to all financial matters[9]
    3. Some say that dina d'malchusa dina applies to government legislation, but not to rulings of the secular court. [10]
    4. 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.[11]
  5. Some say that it doesn't apply to Israel.[12]
  6. Dina D'malchusa is ineffective in causing an Asmachta to be binding.[13]
  7. Dina D'malchusa generally doesn't apply when there is an interaction between two Jews. However, if it is a very reasonable law for the benefit of society it is binding.[14]
  8. Dina D'malchusa is not limited to financial matters, but applies to any laws that are for the benefit of society.[15] Others say Dina D'Malchusa is limited to laws related to land.[16]
  9. Dina D'Malchusa is determined based on how a law is enforced, not how it is written on the books[17]
  10. We do not say Dina D'Malchusa when it contradicts the laws of the Torah.[18]

Stealing from the Government

  1. see Stealing from the government

See Also

Secular Court

Sources

  1. See article by Rabbi Ari Wasserman
  2. 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. Most assume this is a binding from the Torah (Rashi Gittin 9b s.v. “chutz,” Meiri Nedarim 28a, and Vilna Gaon Choshen Mishpat 369, 34). However, Beis Shmuel (Choshen Mishpat, 28:3) says dina d'malchusa is Rabbinic in nature
  3. Rambam Hilchot Gezelah Vaveidah 5:18 and Rashbam Baba Batra 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 dmalchuta 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 CM 369:9).
  4. 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. Chatom 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 is for the benefit of the people such as money spent on highways and bridges.
  5. Rabbenu Yona (Aliyot of Rabbenu Yona Baba Batra 54b s.v. "Umi Amar") says this works like hefker beit din hefker, that the king has dominion over all property. Mabit (Kiryat Sefer Gezela 5), Meiri (Nedarim 28a) and the Vilna Gaon (Choshen Mishpat 369, 34) say that this is derived from the laws of a king derived from Sefer Shmuel Alef Perek 8.
  6. Shut Rashba 1:637
  7. 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.
  8. Re'em brought in Beis Yosef C.M. 369
  9. Ra’aviah brought in Beis Yosef C.M. 369
  10. 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 (as this would abolish Jewish law)
  11. Rav Moshe Feinstein (Igros Moshe C.M. 2:62) quotes the Sema's explanation and disagrees discussing bankruptcy laws
  12. 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).
  13. Emek Hamishpat 1:31:18 citing Maharsham in Mishpat Shalom 207:15
  14. Even Shoham 111:5 applies the following sources to explain why copyright laws are halachically binding. Shach 356:10 writes that a local practice is binding for two Jews because it is understood that the contract was made with such assumptions. Kesot 259:3 writes that for a proper practice it is binding upon Jews to go beyond the law. Chatom Sofer CM 44 adds that any law for the benefits of the industry workers is binding.
  15. 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.
  16. Rama C.M. 369:8. 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 Rashba quoted above that dina d'malchusa is a social contract, there is no reason to distinguish between laws related to the land and other laws.
  17. 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/
  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