Monthly Archives: July 2020

by Eli Putterman and Binyamin Weinreich, SBM Fellows

The very wording of the Halakhic principle of דינא דמלכותא דינא – “the law of the kingdom is the law” – might lead one to wonder whether this principle, which (in certain circumstances) grants secular law Halakhic force, applies to systems of government which can’t reasonably be defined as “kingdoms,” and in particular to democratic states. The two major legal theories offered in the Rishonim to explain the principle of דינא דמלכותא, namely Rashbam’s theory that validity of secular law derives from the consent of the governed and Ran’s theory that the king’s law is the law of the land because, very simply, the king owns the land, would at first glance come out on opposite sides of the question: Rashbam’s proto-contractarian understanding applies even more so to a state in which the citizens choose their lawmakers, whereas Ran’s feudalism-derived construction of דינא דמלכותא seems to fall apart when faced with any kind of state in which the sovereign is not a single individual holding allodial title to all the land under his or her jurisdiction.

Modern and contemporary decisors faced with the problem of applying דינא דמלכותא in democracies, however, often did not content themselves with this naïve analysis. In last week’s summary, we discussed the opinions of two of the judges on the Ashdod rabbinical court in a labor-law case involving secular Israeli law (Case 1323-35-1), R. Mordekhai Ralbag and R. Mikhael Tzadok. Briefly, while R. Tzadok simply ruled that Rashbam’s position is binding and hence דינא דמלכותא applies in the State of Israel, R. Ralbag held that with regard to a democracy, Ran would accept Rashbam’s position that societal consent suffices to legitimate secular law. Below, we discuss the opinion of the third judge in that labor-law case, R. Yekutiel Cohen, and also the opinion of R. Yosef Eliyahu Henkin, one of the leading Torah scholars in mid-20th century America (Teshuvot Ivra §96).

R. Cohen stakes out the opposite position to that of R. Ralbag. He holds that even the “contractarian” theory of דינא דמלכותא would not apply to a democracy. Why? Surprisingly,  because the social consent necessary for דינא דמלכותא to apply is available only in an absolutist state! In Rabbi Cohen’s understanding of the contractarians, the only relevant kind of consent is complete submission to any laws the sovereign promulgates. In a democracy, it’s clear that voters don’t accept the laws passed by their rulers absolutely – after all, they often vote them out in favor of new rulers who will change those laws.

Among R. Cohen’s proofs for consent-as-submission is the language of Rambam in Hilkhot Gezelah 5:18, discussing the applicability of דינא דמלכותא:

במה דברים אמורים?

במלך שמטבעו יוצא באותן הארצות,

שהרי הסכימו עליו בני אותה הארץ, וסמכה דעתן שהוא אדוניהם והם לו עבדים.

To which [rulers] does the preceding apply?

To a king whose currency is legal tender in those lands,

since the inhabitants of that territory have accepted him, and their minds rely that he is their lord and they are his slaves.

Rambam here seems to rule that inhabitants of a certain territory must consent to be slaves (עבדים) of the king in order for דינא דמלכותא to take effect. R. Tzadok however argued that Rambam here is using עבדים to mean ‘subjects’ rather than ‘slaves’; all he requires is that the inhabitants accept the king’s political authority.

But leaving aside the textual debate, there’s a conceptual weakness in R. Cohen’s notion of consent, as R. Klapper pointed out: according to R. Cohen, ‘true’ consent cannot be attained in a democracy because there’s always a minority which supports replacing the current government and fights against it at the ballot box. But R. Cohen fails to take into account that (in the ordinary course of things) the minority nonetheless follows the laws passed by the government they’re unhappy with, which shows that they do consent to them on some level. In other words, R. Cohen fails to distinguish between support of a particular leader and acceptance of the democratic process, which means accepting its outcomes even if one’s preferences are not aligned with the party in power. The fundamental underpinning of a functional democracy is that the citizens consider themselves to be bound by the framework even if one is unhappy with a specific government and its laws. Certainly this should suffice for the consent theorists of דינא דמלכותא to apply the principle to a democratic government.

We move on to R. Henkin, who laid out his very different understanding of דינא דמלכותא in in a 1956 discussion of the Halakhic validity of the New York City rent control law. His theory not only leads to an enthusiastic acceptance of דינא דמלכותא in democracies, but radically revises our conception of the Halakhic civil law as a whole.

According to R. Henkin, because society changes all the time, no community can function with a static legal system. In the past, Jewish communities were legally autonomous, and they met the need for legal change with binding Halakhic enactments (תקנות) made by the rabbinic and communal leadership. In such a situation there was no need for דינא דמלכותא. However, when Jews live in a society with no permanent batei din or communal leadership with enforcement authority – as in R. Henkin’s time and our own – Halakha looks to the secular legal system, which continually adapts in order to promote public welfare, and obligates Jews to follow its provisions via the principle of דינא דמלכותא דינא.

Moreover, R. Henkin argues that in a constitutional democracy, the Jews are a part of the citizen body which (indirectly) makes the laws, and hence the secular law is also “Jewish.” Thus R. Henkin breaks down the dichotomy between the Jews’ law and the law imposed upon the Jews which has animated Halakhic discussion of דינא דמלכותא for two millenia: in a democracy, Jews are part of the government which imposes the law. Thus, of all the theories of דינא דמלכותא we’ve seen, R. Henkin’s theory proves uniquely able to integrate fidelity to Halakha with a conception of democratic citizenship.

Of course, R. Henkin’s wholesale adoption of secular law into Halakha must have limits: it can apply only to areas of Halakha which are meant to change with the times. So there is of course no question of secular law overriding areas of Halakha like kashrut or Shabbat. But R. Henkin sees all of Halakhic civil law as open to revision, and hence superseded by secular law, with one prominent exception – inheritance law, which cannot be changed either by דינא דמלכותא or by internal תקנות. (It is understood as well that secular law cannot permit Jews to charge or pay interest to each other.)

R. Henkin’s theory of דינא דמלכותא can fairly easily be read into the Rishonim who adopt the consent theory of דינא דמלכותא, but seems impossible to reconcile with Ran and others’ “feudal” theory of דינא דמלכותא as deriving from the king’s ownership of the land under his rule, which Ran formulates as an implied threat: if one does not observe the king’s laws, the king has a right to expel them from the land. To resolve this problem, R. Henkin argues that Ran doesn’t mean to say that דינא דמלכותא only applies when the sovereign has deportation power, but rather whenever the government provides any services to the population in its territory, such as public works, security, and artificially depressed prices (!). Yet despite the attractiveness of R. Henkin’s theory of דינא דמלכותא, it must be said that his is not the simple reading of Ran.

We conclude this summary by opening a can of worms we discussed on several occasions in shi’ur: modern democratic societies generally see civil disobedience as a legitimate form of protest against governmental injustice. Yet an expansive theory of דינא דמלכותא in democracies which applies it to secular law tout court (or close to it) would seem to make violation of secular law prohibited by Halakha as well – and Halakha may have no provision for principled disobedience. Can a theory of דינא דמלכותא which gives the laws of a democracy Halakhic force also make room for Halakhically-committed Jews to disobey those laws when conscience requires it?

by Bracha Weinberger and Batsheva Leah Weinstein, SBM Fellows

In a 2008 case before the Beit Din of Ashdod, the undisputed background facts were as follows:

1. Israeli labor law guarantees all employees rights such as paid sick leave.
2. Teachers in government-run (mamlakhti) schools work under a collectively bargained contract that includes a wage scale and a severance package. Licensed non-government schools receive government subsidies that pay their teachers’ salaries. The Ministry of Education’s licensing process requires schools to affirm that their teachers will be paid the same salary and benefits mandated by the government contract.
3. Haredi school systems sign this affirmation every year.
4. Haredi school systems pay their teachers less than they would receive under the government contract, and do not provide all the benefits required by the general labor law.
5. The Ministry of Education licenses Haredi school systems despite being fully aware of this, and has done so for many years.

In the specific case, a former teacher sued the El HaMaayan school system for backpay and paid sick leave. The teacher states that in the hiring conversation, he asked to be paid according to the government contract scale plus an additional stipend to compensate for not receiving the legally standard benefits. The principal responded noncommittally, and he started work without receiving a clear answer. The principal contends that he explains to all teachers that the school cannot afford to pay at scale or provide full benefits. If they didn’t want to work under those terms, he said, then they didn’t have to accept the job.

Each of the three dayyanim on the beit din panel wrote a full separate opinion. These opinions offer wide-ranging and creative treatments of the halakhic principle that dina demalkhuta dina and express and reflect fundamentally different political philosophies. We’ll discuss the first opinion and part of the second below, and look forward to covering the third next week.

Dayyan Mordekhai Ralbag begins from a halakhic principle (perhaps parallel to “freedom of contract”) that “kol tenai shebemamon kayyam” = “any stipulation relating to money is valid.” The Talmud (Bava Metzia 76a) uses this principle to validate contracts in which workers accept less than the prevailing wage, even though workers with no explicit contract receive the prevailing wage. If we construct the principal’s refusal to commit as a tenai, and the teacher as accepting that tenai by coming to work, then the teacher should lose the case. Does coming to work imply acceptance of the principal’s stipulation?

Shulchan Arukh Choshen Mishpat 221:1 discusses a case in which a seller asks for 200 and a buyer offers 100. They separate, and later complete the transaction without discussing price. The ruling is that whoever initiated the second conversation is presumed to have accepted the other’s price. In our case, one might argue that the teacher’s showing up for work is equivalent to initiating the second conversation.

Dayyan Ralbag rejects this parallel. He explains that in our case the parties never “separated,” and the principal never outright refused the teacher’s demands. Therefore we have no basis for presuming that either side accepted the other’s price.

A second consideration is that, according to the beit din’s legal advisor, the general Israeli labor law invalidates any stipulation that lowers or eliminates mandated benefits. If so, then even if we construct the teacher as accepting the principal’s stipulation, and even though halakhah internally permits such stipulations, perhaps halakhah recognizes the right of the government to invalidate them! The school would therefore owe the teacher those benefits. (The school might also be vulnerable to similar lawsuits from all its present and former teachers, even if they explicitly waived those benefits in their employment contracts.) Does dina demalkhuta dina govern the relationship between the Israeli state and the Haredi school system? If it does, can dina demalkhuta dina override kol tenai shebemammon kayyam?

Dayyan Ralbag begins his analysis with standard citations of RASHBAM as grounding dina demalkhuta dina in the people’s consent to the government (mekablim al atzmam), and RAN as grounding it in the government’s ownership of the land, and consequent power to expel anyone who rejects its authority. RAN excludes Jewish kings in the Land of Israel from this principle on the ground that all Jews are partners in the land (and therefore cannot be expelled at will).

However, Chatam Sofer (Teshuvot OC 44) contends that RAN’s exclusion applies only to taxes, which are presumptively against the will of the people, and not to practices and laws categorized as “tovat hamedinah” (for the welfare of the state). If RAN sees the authority of law as grounded in the power to expel, how can dina demalkhuta dina apply to any government that lacks such power?

Dayyan Ralbag suggests that RAN agrees with RASHBAM that popular acceptance is sufficient for dina demalkhuta dina to apply. However, he felt that dina demalkhuta dina must apply (outside of Israel) even where such acceptance is lacking (perhaps he felt that RASHBAM incorrectly viewed popular obedience to totalitarian regimes as sufficient “acceptance”). Under this explanation, one can argue even more broadly than Chatam Sofer and say that RAN would apply dina demalkhuta dina even to taxes instituted by a democratic government in the Land of Israel.

Dayyan Ralbag argues that by signing the affirmation required for licensure, the principal (acting as agent of the school) automatically accepted the laws and regulations that come with it. This acceptance means, he contends, that according to both RASHBAM and RAN, those laws and regulations become binding on the principal (and school) as dina demalkhuta dina. (According to Chatam Sofer, this is especially true If we view those laws and regulations as “for the welfare of the state.”)

This argument seems to imply that individual consent is needed for every single law. That would be very odd. Adena Morgan suggested in shiur that consent applies on a group level. Groups who accept the laws are bound by them, while those who don’t. By signing the affirmation required for licensure, the principal included himself in the group of people who do accept the laws. Therefore he becomes bound by them. (Rabbi Klapper thinks this still seems very odd.)

Assuming that dina demalkhuta applies, does it invalidate the principal’s tenai? Dayyan Ralbag answers that it does with regard to the benefits directly guaranteed by the general labor law. Since the law is that one cannot stipulate against these regulations, dina demalkhuta invalidates the tenai.

However, this may not be so regarding the salary and benefits arising out of the principal’s commitment to pay according to the contract with government teachers. There is no law stating directly that such salary and benefits cannot be waived.

Dayyan Ralbag contends that the issue depends on whether the licensing process creates a direct obligation to the teacher. If it does, then the teacher can sue the school to fulfill that legal obligation, regardless of any waiver. However, if the process only creates an obligation toward the Ministry, a private tenai would be valid and the teacher would not be entitled to his benefits. Does the commitment made by the school during the licensing process create a right for the teacher?

Dayyan Ralbag here introduces a Beit Din HaGadol opinion written by Dayyan Avraham Sherman in a similar case. Dayyan Sherman notes that the licensing process doesn’t say that if a school breaches its obligations. its license will be revoked; it says only that a breach gives the state the right to revoke its license. This right is never invoked, even though the Ministry is perfectly aware that Haredi schools pay less than they commit to paying. If the state understood the process as deputizing the schools as its agents to pay teachers, then the schools would be stealing government money intended for teachers, and in that case the license would certainly be revoked. However, if the schools don’t become government agents, then the money can be used in any way they see fit. (Moreover, the state’s consistent failure to enforce the schools’ commitment to the Ministry means that it is not regarded by halakhah as dina demalkhuta.)

Dayyan Ralbag derives from Dayyan Sherman’s exclusive focus on the state’s failure to enforce that the process does not create a direct obligation from the school to the teacher. Consequently, a tenai made between them would be valid. He concludes that there is at least a safek/doubt as to whether a stipulation made against the contract is valid. Therefore, he falls back on the rule of המוציא מחברו עליו הראיה – a halakhic tie favors the defendant. Hence the teacher is only entitled to the sick pay and convalescence pay demanded by the general labor law, but not to the severance and salary required by the teachers’ contract.

Dayyan Ralbag then provides Haredi schools with a mechanism that he believes would validate even stipulations against the general labor laws. If the principal made a tenai that explicitly overrode rights provided by dina demalkhuta dina, that would be effective even if the dina demalkhuta prohibits such stipulations. We questioned whether this would actually work. since this can be viewed not as stipulating regarding money, but rather as stipulating against an halakhic obligation to obey the dina demalkhuta (assuming such an obligation). Rabbi Klapper argued that since the dina demalkhuta would ban Rabbi Ralbag’s tenai as well, this is a case of infinite regress. It was also not clear to us why Dayyan Ralbag offered this suggestion.

Dayyan Mikhael Tzadok’s opinion begins from completely different premises. He declares that since Rambam and Shulchan Arukh each rule explicitly against RAN that dina demalkhuta applies to Jewish kings in the Land of Israel, and Rav Ovadiah Yosef writes that defendants cannot rely on any position which is against Rambam and Shulchan Arukh, we can follow the “acceptance” theory and wholly disregard RAN. However, once the majority of a society accepts a government law, it becomes binding as dina demalkhuta on everyone without exception; this includes Haredim and Haredi schools, whether or not they sign individual commitments.

Dayyan Tzadok next contends that Rabbi Ralbag is fundamentally mistaken in seeing labor laws as giving privileges to individuals; rather, they are for the benefit of all of society, both employers and employees. If one employee waived these rights, all employees would be pressured to do so, and the entire labor market would be affected. Employers would suffer as well because they could be outcompeted by others more willing to abuse their workers. Social stability would be negatively affected by increased inequality, and the government would have to spend more to support the working impoverished. Therefore, the principle kol tenai shebemamon kayyam is irrelevant to the rights granted by labor law, since those rights are collective rather than individual.

Over the next several days we’ll be discussing the opinion of the Av Beit Din, Dayyan Yekutiel Cohen, who contends that dina demalkhuta cannot apply in a democracy, and Rabbi Tzadok’s response.

Shabbat shalom!

by Adena Morgan and Eliana Yashgur, SBM Fellows

In four sugyot, the Babylonian Talmud cites the amora Shmuel as stating that that dina demalkhuta dina (DMD)= “the law of the kingdom is law.” Neither Shmuel nor the Talmud provides a source, or even rationale, for Shmuel’s far-reaching statement. Leaving the “why” of Shmuel’s statement unstated makes it very hard to determine the “what” – which laws, of which sorts of government, under what circumstances, and in what relationship to halakhah.

Various Geonim and Rishonim fill the breach. Their answers can be understood as ranging philosophically from Divine right of kings, to a Hobbesian contention that the state must in principle be all-powerful to prevent the war of all against all, to various modes of constructing consent, to a “social contract,” to a claim that the Noahide mitzvah of “dinnim” provides a Biblical basis for legitimating governmental authority. Each of these opinions can also be understood as making narrower or shallower claims.

SBM focused this week on an essay by Rav Asher Weiss about Shmuel’s principle. Rav Weiss begins by citing, and sometimes modifying or rejecting, versions of the five positions above. Rav Weiss then presents an apparently original position articulated by Chatam Sofer in two of his responsa (OC 208 and CM 44). Chatam Sofer seems to identify the source of Shmuel’s principle in a drashah attributed to him on Talmud Shavuot 35b:

אמר שמואל:

מלכותא דקטלא חד משיתא בעלמא – לא מיענשא,

שנאמר:

כרמי שלי לפני

האלף לך שלמה – למלכותא דרקיעא;

ומאתים לנוטרים את פריו – למלכותא דארעא.

Said Shmuel:

A kingdom which kills one sixth of the world – is not punished,

as Scriptures says (Shir HaShirim 8:12):

My vineyard is before me –

a thousand are for you Shlomo – meaning for the kingdom of Heaven;

two hundred are for those who guard his garden – meaning for the kingdom of the earth.

Chatam Sofer understands this statement of Shmuel as authorizing taxation or the draft (=the law of the government is law) as necessary for government, so long as the percentage is no more than one sixth of the total.

Rav Weiss contends that this drasha cannot be the source for the entire concept of DMD, for two reasons: It is addressing a specifically Jewish king, and has no necessary application to Gentile governments, and teaches only that a king may appropriate funds for his own use, but not about his right to levy for the sake of running the country. Rav Weiss concludes that this drasha is really only a “hint” as to how much a government may tax its citizens, rather than a fundamental basis for governmental authority.

Neither of Rav Weiss’s challenges are compelling.  Shmuel’s line is classically interpreted to mean that a king may draft one sixth of his population for their labor (Rashi) or into the army (Tosfot, Maharsha). This is not just a reminder of how much a king is allowed to tax. (This drasha has even been used by Rabbi J. David Bleich as theoretical justification for launching a nuclear war that would kill one sixth of the world’s population). Moreover, the Talmud understands Shmuel as interpreting the “Shlomo” of the verse as a reference to G-d, rather than to the Jewish king Solomon,

In fact,  Chatam Sofer understands this drasha as encompassing a government’s authority to use one sixth of the country’s resources for public works and improvements, or just for maintaining what already exists. He even argues that this drasha combined with the principle of darchei shalom permits the government to use the death penalty on criminals who disturb the public peace, though only up to one sixth of the population of course.

Rav Weiss’s summary and analysis of the Chatam Sofer allow him to dismiss this specific construction and conception of DMD. Yet, we are left puzzled by how such a great talmid chakham can offer such inadequate evidence. Is this merely an exercise in rhetoric to assure his audience he is familiar with the Chatam Sofer, or is this actually what Rav Weiss thinks?

Rav Weiss also addresses the Chatam Sofer in his dissection of the position of RAN (Rabbeinu Nissim), who claims that dina demalkhuta dina is justified by the fact that the government has the power to expel residents. However, RAN says, this power does not extend to a Jewish king ruling over Jews in Israel, because all Jews are partners in the Land. RAN seems to be implying that DMD does not apply to Jewish kings at all. This troubles Rav Weiss, whose underlying position is that government is a necessity of human society.

Chatam Sofer, however, offers a radical reinterpretation of RAN.  He contends that RAN agrees with RASHBAM that DMD depends on the (constructed) consent of the governed, and on this basis argues that RAN does not eliminate DMD with regard to Jews in the Land of Israel – he merely limits it.

Outside Israel, in Chatam Sofer’s account, RAN contends that the government’s right of expulsion means that residents implicitly consent to the government’s authority to tax and draft. In Israel, where that authority does not (in principle) exist, a Jewish government requires specific popular consent to tax and draft. However, even in Israel, we can presume that the population consents to governmental authority to regulate interpersonal and commercial relations etc., and in those areas the law of the government is law even without specific popular consent. (Chatam Sofer understands RASHBAM as saying that the people can be constructed as consenting to all powers of government, including taxation and the draft up to one sixth, even without the factor that the king can expel them should they disobey.)

All of this comes to mean that Chatam Sofer fundamentally believes in autonomy, since he interprets even RAN as rooting government authority in the consent of the governed. Where that consent cannot be presumed or constructed, Chatam Sofer contends that authority requires actual consent.

This is in contrast to Rav Weiss himself. Rav Weiss challenges Chatam Sofer’s account by arguing that government must be allowed to tax or draft regardless. Consent, he contends, may determine who governs, or the form of government, but it is not necessary for the fact of government.  Where there is no consent, government remains necessary, and the Torah will allow other justifications. Rabbi Weiss argues that according to RAN, in a halakhic state in the Land of Israel the king does not have the authority of DMD, but the government still does, because the Sanhedrin is authorized to make laws by virtue of its authority derived directly from Torah. (Rabbi Klapper however notes that the Sanhedrin’s Torah authority can itself be understood as deriving from the consent of the Jewish people at Sinai.)

Rav Weiss himself ends up taking a position that can be described as Hobbesian or anti-Enlightenment.  (This explanation may differ sharply from the presentation of Rav Weiss’ position offered by Professor Chaim Saiman at http://www.jidaily.com/LmJs). He believes that the Torah understands anarchy to be the worst of all worlds, and therefore government is necessary; there is no idyllic state of nature in which all human beings are free. Chatam Sofer, by contrast, can be understood as understanding RAN at least as imagining a society in which government is the product of a voluntary social contract. However, Rabbi Weiss follows Chatam Sofer in seeing consent as the basis for legitimating any specific claimant to government authority. This appears to be a very modern position.

However, it is important to understand that requiring “consent” is not the same as endorsing democracy.  As noted above, RAN validates constructive consent granted under the threat of expulsion. Even RASHBAM nowhere suggests that governments are legitimate only if they have been democratically elected.  Similarly, RAMBAM seems to agree with RASHBAM that government authority is rooted In consent.  He seems, however, to assert that when a people in practice accepts a government’s currency, it consents to that government’s authority as well.

An offshoot of this discussion then is, what are the limits of presumed consent? Can it apply to a conquered population? Can it apply to people who were not alive when the government was formed (i.e. descendants of those whose originally consented)?

Rishonim such as RAMBAN and ROSH struggle with this question when they discuss the authority of halakhah as a whole, or of the authority halakhah grants for Jewish communities to make enforceable takkanot.  We can analogize this issue to the halakhic concept of zakhin adam shelo b’fanav, where we make an assumption of what is good and what a person might want even when they are not present. Typically, whenever this principle is used, the context involves an individual (with respect to conversion, for example). There isn’t a strong precedent for applying it to communal or social questions, let alone an entire polity. This remains as further territory for exploration.

by Zack Orenshein and Tzophia Stepansky, SBM Fellows

The Talmudic ruling, cited in the name of Shmuel, that “the law of the kingdom is law” (=Dina Demalkhuta Dina) requires us to ask: according to Judaism, how much power do governments have over their citizens? The Talmud itself provides several possible specific limits to Shmuel’s rule, and later commentators develop these into broader conceptions of the source, extent, and enforceability of “the law of the kingdom.” In shiur this week we focused on Rav Asher Weiss’s presentation of several rishonim’s positions in an essay distributed for Parshat Chukat 2010.

We’ll start with the Terumat haDeshen #341 (Rabbi Yisroel Isserlin, 1390-1460). His approach makes ethical demands on both the government and its citizens and is grounded in sophisticated political theory.

Terumat haDeshen presents his approach as an answer to a specific real-world question. An official-in-authority (=sar) imposed annual tax assessments on two Jewish communities. Between tax years, four wealthy citizens moved from one community to the other, and paid part of their new community’s assessment. Their previous community asked the sar to lower its assessment to account for this, but the ruler instead gave them the right to dun the four expatriates. When they in turn pleaded their case to the sar, he maintained the assessments on both communities, but gave the four individuals the right to sue in beit din to determine whether the original community could dun them.

Terumat haDeshen formulates the central issue as whether rulers have the right to allocate individuals among communities for tax purposes. The implicit alternative is that the communities have fixed political identities that they control autonomously, and the “law of the kingdom” applies to the communities rather than to their constituent individuals. Furthermore, he suggests that the principle of dina demalkhuta does not allow the kingdom to arbitrarily change the annual assessment for a community.

The primary evidence Terumat haDeshen cites is a series of apparently inconsistent rulings in the responsa of Maharam (= Rabbi Meir of) Rothenburg (1215-1293).

The first cited responsum states that after a communal tax assessment has been negotiated, individuals may not reach private agreements with the government to disproportionately limit the share they must pay. Rather, any abatement must be shared by the community. Terumat haDeshen explains that “Since the way of officers is to impose a heavier burden on others when they lighten it for an individual, and since each individual is obligated to bear the yoke with his friends,” causing others’ burdens to increase by obtaining a personal exemption is considered stealing, as well as an abdication of one’s communal responsibility. Moreover, any attempt by the government to alter the community’s assessments on individuals is treated by halakhah as the illegitimate “robbery of the kingdom” rather than as the legitimate “law of the kingdom.”

However, another responsum clarifies that this is true only once the communal assessment has been fixed.  Before that point, when no collective liability has been imposed, a government decision to exempt individuals from taxation must be recognized by the Jewish community.

Finally, in a third responsum, Maharam declares that ALL government taxes in his time and place were robbery and illegitimate. Terumat haDeshen asks: If this is so, then there can be no legal communal liabilities, so why should individuals be constrained from negotiating private deals with a government of bandits?  His final explanation is that the tax assessments are nonetheless binding because “it is with this expectation (that illegitimate/arbitrary assessments will be imposed)  that we establish residence under them and accept upon ourselves their yoke and their burden.”

Rav Asher Weiss reads this last line of Terumat haDeshen as providing an underlying source for Shmuel’s principle. He argues that according to Terumat haDeshen, the basis for Dina Demalkhuta Dina is that the act of living in a certain place implicitly declares that one consents to the government.

Rabbi Klapper argued that this understanding of Terumat haDeshen produces a theory that is very difficult to accept. Individuals often have little choice as to where they live, let alone as to which form of government to live under. People may find themselves in a particular polity because of war, hunger, or just that their parents decided to live there. It seems difficult to say that this would constitute a strong enough consent to bind the people to its government’s laws.

However, Rabbi Klapper argued, a close reading of the Terumat haDeshen suggests that he did not actually view implicit consent as the basis for Dina Demalkhuta Dina. The context of the aforementioned line which gives that impression is his attempt to justify the contradictory statements of Maharam, that on the one hand all taxes in his time were theft, and on the other hand they create a legal communal liability. Terumat haDeshen understood Maharam to be arguing that the taxes were theft under the ordinary rules of government, and not legitimated by Shmuel’s principle.  He therefore suggested that perhaps the taxes could nonetheless be justified by a kind of constructive consent. In other words, this kind of constructive consent is NOT the ground of Shmuel’s principle.

Moreover, Terumat haDeshen’s constructive consent was not that of individuals.  Rather, Rabbi Klapper argued, he was referring to the consent of the Jewish community. Jews were not defined as members of the nation they lived in, but rather as making communal decisions to live or not live within specific nations. The decision of a Jewish community to live within a specific nation could be constructed as consent to the tax assessments of that nation, EVEN THOUGH such assessments would not be legitimated by Shmuel’s principle that “the law of the kingdom is law.”

Furthermore, Terumat haDeshen’s tone offering this explanation is that of low confidence, not that of someone laying out his own commitments. He introduces his solution to the contradiction among Maharam’s positions with the words, “ונראה קצת טעם לדבר,” a phrase which as a whole is difficult to translate, but ketzat ta’am means a slight or partial reason rather than a compelling ground.

On this reading, Terumat haDeshen offers a complex approach to halakhah and government. In principle, halakhah recognizes only governments that follow established rules. Governments that follow such rules create collective obligations, so that it becomes theft for an individual to evade a personal obligation when that simply shifts the burden to everyone else. Governments that do not follow established rules (more work is necessary to define those rules and how they are established) are not legitimate unless  – perhaps – they nonetheless can be constructed as having been consented to by those over whom they have authority.

Rav Weiss next presents the positions of Ran and Rashba in their commentaries to Nedarim 28a. Each of them quotes a Tosafist position that Shmuel’s ruling does not apply to Jewish kings in the land of Israel. The reason is that the entire Jewish people are shutafim, partners, in owning the land of Israel, and therefore their king does not own the land. By contrast, non-Jewish kings own all the lands of their nations. They state that Shmuel’s principle is grounded in that ownership, which gives them the right to charge people for residing in or benefiting from the land, and generally to make all laws associated with the land in some way.

Rabbi Klapper argued, however, that Rashba presents his position differently in a responsum (Meyuchasot laRamban 22).  Rashbam there states that a kingdom has the right to make regulations that improve the regulation of the state, even to the extent of transferring property that belongs to one person to another. (But when done for reasons other than improving the regulation of the state, such transfers constitute robbery.) He then states that this right applies ALL THE MORE SO in states where the king owns all the land, and makes acceptance of this right a condition of land ownership. This suggests that the primary ground of government authority is not the king’s ownership, although the king’s ownership may provide an alternate or additional ground for some forms of governmental authority. Moreover, Rashba here offers a formulation similar to that of Terumat haDeshen above, which ultimately depends on consent rather than power.  He therefore adds that this argument is more compelling if the kingdom publicizes its rules before distributing land.

A more radical formulation of the Tosafist’s political view may emerge from the She’eilot u’Teshuvot Maharich Or Zarua #110 (1200-1270). When delineating how the secular government has authority due to its ownership over the land, he makes an attention-grabbing comparison: “When it comes to the nations of the world this is the law, because all of the land is his, and this too is the law for ordinary people that if they were to gather and declare that no one may benefit from their land without paying their assessment – their law is law.” Maharich presents the authority of the government and of groups of individuals as fundamentally the same. This seemingly limits the weight given to the central authority of the secular government and gives it back to the people.

Moreover, the position that the Jewish people in their ideal sovereign state are not per se subject to government regulations may have far reaching implications. It suggests a strong bias toward very limited government. However, any such claim must account for the capacity of the Sanhedrin to legislate, and also that Jewish kings may have powers derived from a different source than those given to other kings by Shmuel’s principle.

by Avi Sommer, SBM Fellow

Mishnah Bava Kamma 113a places various restrictions on transactions with tax collectors on the ground that their coins are considered stolen. For example, one may not accept charity from tax collectors or ask them to change larger denominations. 

You may be wondering: why would someone having a private economic transaction with a tax collector receive coins collected as taxes in change? Likewise, how could tax collectors give tax money away as charity? Shouldn’t it all have been given to their government?  The answer is that the governments with which Chaza”l interacted, such as the Roman Empire, would sell the right to collect taxes to private individuals. Those individuals could legitimately keep the tax money they collected.

The Gemara asks: given Shmuel’s statement that dina demalkhuta dina (the law of the government is the law), why is the money of tax collectors considered stolen? After all, the government authorizes them to collect it! The Gemara gives two answers. The first answer is that the Mishnah is referring to tax collectors who have no upper limit on the taxes they can collect. They are viewed as having purchased a license to extort from the government, and Shmuel’s statement is not intended to cover all government laws. The second answer is that the Mishnah is referring to tax collectors who set up shop without governmental authorization – essentially organized thieves, like highwaymen charging “tolls.” Taken together, the answers imply that governmental taxes with quantitative limitations are legitimate and are not theft, and that this is so because of Shmuel’s statement that dina demalkhuta dina.

The Gemara then cites versions of the sugya in which the objection from Shmuel’s statement that dina demalkhuta dina and the answers to that objection are responses to Tannaitic texts other than the Mishnah with which we began. One version relates them to a text in which Rabbi Akiva permits wearing kil’ayim (i.e. shatneiz) in order to evade taxes on goods (which sometimes exempted the clothing one was wearing). Another version related them to a mishnah that permits taking false oaths to the effect that certain food is terumah to dissuade a tax collector from taking it. Interestingly, and disturbingly, the last version adds a third answer to the challenge from Shmuel’s statement, that it refers to non-Jewish tax collectors. The relationship of this answer to the question is unclear. It does not seem to reconcile the mishnah permitting taking the false oath with Shmuel’s statement that dina demalkhuta dina, since a non-Jewish tax collector is certainly a representative of the government.

The Gemara then moves to a discussion of Shmuel’s statement in its own right. Rava states that the statement must be accepted as halakhah, because “they cut down date trees [belonging to private individuals] in order to build bridges, and we walk over them.” The government, in other words, used a right of eminent domain. If that was theft, then those bridges would be stolen objects, so crossing them should be forbidden as using someone else’s property without permission. Since we do cross over them, they must not be considered stolen, so cutting down the palm trees must not be theft. This demonstrates that the government has a right to take private property. In other words, dina demalkhuta dina.

Abaye (as was his wont) rejects Rava’s evidence: perhaps the reason that we can pass over these bridges is not that dina demalkhuta dina, but rather that the owners of the palm trees despaired of recovering them, so that they become government property despite having been obtained illegally. Rava replies that, if it were not for the fact that dina demalkhuta dina, the owners would not thus despair. (Rashi, going against the apparent pshat of the Gemara, interprets this to mean that the despair (ye’ush) which they feel would not, by itself, legitimate using the bridges. A “transfer of possession [to a third party]” or an “active changing [of the stolen object]” is also necessary.)

The Gemara then objects that in Rava’s case, dina demalkhuta dina should not be sufficient to legitimate traversing the bridges. Why? Because the people who, on the orders of the government, cut down the palm trees, did not precisely follow the government’s orders. The government told them to cut down trees from various people’s properties, but they cut down all the palm trees on one person’s property. How then, are the timbers of the bridge not stolen? 

The Gemara replies with a sweeping statement of governmental authority: “the emissary of the government is like the government,” and, consequently, whatever dina demalkhuta dina permits the government to do, any emissary of the government can do within the scope of their discretion. If the government itself had ordered its emissaries to cut down all the palm trees in one person’s property, that would not be theft. Consequently, it is not theft for the emissaries of the government to cut down all of one person’s palm trees, even though it is not what their instructions said. This is why we can pass over the bridges.

In shiur, we discussed various possibilities regarding the scope and power of dina demalkhuta dina that emerge from this sugya and other sugyot. With regard to the government’s ability (to use a word which is, hopefully, neutral between various possibilities) to take things from its subjects, Rav Klapper outlined three possibilities. Firstly, and most narrowly, perhaps the principle of dina demalkhuta dina says merely that when the government takes things from its subjects, they are not considered stolen. The sugya in Baba Kama requires at least that much. A much more expansive possibility is that dina demalkhuta dina creates a positive obligation to give things to the government, to pay taxes. Rav Klapper suggested a third possibility, which is that relations with a person acting with government authorization are considered to be relations with the government. For example, even though the tax collector has already paid the government, and is now collecting for his own pocket, evading such a collector is considered halakhically to be evading the government. This third option is neutral regarding what exactly one’s obligations toward the government are. Consequently, as Zach Orenstein pointed out, there is no immediately apparent nafka minah (practical difference) between this third option and the other two.

We also discussed possible ways in which Shmuel’s principle could apply beyond the sphere of taxation or eminent domain (which can be understood as a form of taxation).  For example, it might be possible for legal documents (shtarot) originating in Gentile courts to be halakhically valid because of that principle. Mishnah Gittin 10a states that, with a few exceptions, legal documents from non-Jewish courts are valid. The Gemara objects that performative legal documents, such as gift deeds, should not be valid, since they do not have halakhically valid witnesses! Its first answer is that dina demalkhuta dina nonetheless validates those documents. This would extend the statement’s power well beyond taxation. However, the Gemara offers a second answer that limits the Mishnah’s rule to evidentiary documents. A Geonic tshuvah favors the second answer, and furthermore claims that the second answer rejects the application of Shmuel’s statement even to evidentiary shtarot.  So it is possible that the statement dina demlakhuta dina is far-reaching, but also that it is extremely limited.