Difference between revisions of "Abiding by Civilian Law"
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Revision as of 00:08, 17 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.
- Many assume that dina d'malchusa is binding from the Torah. Some say dina d'malchusa is Rabbinic in nature
- The Gemara says Dina D'Malchusa Dina ("the law of the land is the law").
- Dina D'Malchusa is determined based on how a law is enforced, not how it is written on the books
- Dina D'Malchusa is subject to interpretation based on logic.
To Who Does it Apply
- Dina d'malchusa dina applies to all appointed officials who are keeping to the local laws, not just the king.
- Some say Dina D'malchusa doesn't apply when there is an interaction between two Jews. Others argue that it applies between all people.
To Which Laws Does it Apply
- There is a discussion as to which laws one is obligated to follow the dina d'malchusa:
- Some say that dina d'malchusa dina only applies to laws related directly to the land (i.e. real estate).
- Some say that dina d'malchusa dina applies to all financial matters
- Some say that dina d'malchusa dina applies to government legislation, but not to rulings of the secular court. 
- 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.
- Dina D'malchusa is ineffective in causing an Asmachta to be binding.
- We do not say Dina D'Malchusa when it contradicts the laws of the Torah.
Where Does it Apply
- Dina d'malchuta dina applies to democracies such as the United States.
- Some say that dina d'malchusa doesn't apply in Israel. However, most authorities rule that it does apply.
- It is prohibited to avoid paying taxes in a democracy such as the United States.
- According to some poskim, patronizing a Jewish merchant who cheats on his taxes violates the Biblical prohibition of lifnei iver.
- If a person or company went bankrupt they do not have an enduring obligation to pay off their debt because bankruptcy laws are established and reasonable laws of the government.
- If there’s a civil law to hand in a lost object that is found to a government official one must oblige because of Dina Dmalchuta Dina. See common law on Cornell.edu.
- Some write that if a person has a contract with a penalty that is an asmachta even though it is binding in a secular court dina dmalchuta doesn’t make it binding between two Jews.
Stealing from the Government
- See article by Rabbi Ari Wasserman
- Rashi Gittin 9b s.v. “chutz,” Meiri Nedarim 28a. Vilna Gaon C.M. 369:34
- Beis Shmuel C.M. 28:3
- 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.
- 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).
- 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.
- 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.
- 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.
- Rav Asher Weiss (Shut Michas Asher 2:123) with regards to building a succah against the zoning laws that if the police don't enforce them, it is not a violation of dina d'malchusa. 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/
- Rav Asher Weiss (Shut Michas Asher 2:123) says that late at night one can run a red light when you can clearly see that there is nobody coming and nobody looking who may learn from your behavior as the law didn't intend to prohibit this.
- Shut Rashba 1:637
- 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
- Rav Asher Weiss (Shut Minchas Asher 2:121:4:9) quoting Rama C.M. 369
- 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
- Ra’aviah brought in Beis Yosef C.M. 369
- 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
- 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.
- Emek Hamishpat 1:31:18 citing Maharsham in Mishpat Shalom 207:15
- 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. Teshuva MiAhava 1:117 discusses a case when there is a law that only certain rabbis can officiate at weddings and a different rabbi officiates. He concludes that the marriage is binding, but he did the wrong thing as dina d'malchusa is binding. Similarly, Rav Asher Weiss (Shut Michas Asher 2:123) discusses building a succah on your property when it is against zoning laws. He says although you have fulfilled your mitzvah of succah, you violated dina d'malchusa unless this is something the police know about and don't enforce
- 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.
- Ran Nedarim 28a s.v. Bamoches writes that Dina Dmalchusa 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. Shut Minchas Asher 2:121).
- Shu"t Igrot Moshe CM 2:29, Shu"t Shevet Halevi 2:58, Rav Hershel Schachter. see there where Rav Schachter writes that taxes nowadays would not only be binding because of dina dimalchuta dina. Paying taxes is also your obligation to the partnership because taxes are used to provide services to the citizens (fire, police, military, garbage, mail etc). All the people of the city, state, country have to contribute to provide for that. Thus, one who withholds his taxes is not only taking from the government. He is taking from the other citizens, which inevitably includes other Jews.
- Eli Clark quoted from Rav Hershel Schachter
- Igrot Moshe CM 2:62, Halachos of Other People’s Money p. 34 fnt. 71. Rav Moshe explains that since the bankruptcy laws are for the betterment of society which the Rama 369:8 writes is binding.
- Rama 259:7, Pitchei Choshen Aveidah 2:22
- Emek Mishpat v. 1 p. 260 writes that one should not assume that dina dmalchuta obligates a person to pay a contractual penalty. He explains that they are an asmachta and dina dmalchuta doesn't apply in Israel (Ran Nedarim 28a, Darkei Moshe 369:3, Gra 369:35). Also, he adds that Mishpat Shalom 207:15 writes that dina dmaclhuta doesn't make an asmachta binding. Also, Chazon Ish CM likkutim 16:11 writes that dina dmalchuta isn't applicable for a contractual penalty since dina dmalchuta doesn’t apply between two Jews.