The Law of the Land: Bava Kamma 113

By: Rabbi Jay Kelman |

Dina demalchuta dina, the law of the land is the law, is one of the most famous, far-reaching and even revolutionary laws of the Talmud. At its most basic level it requires Jews to be law-abiding citizens of whatever country they find themselves in. Dina demalchuta dina allowed us to survive and thrive as a people through our historical travels. I shudder to think the fate of the Jew had we not accepted the law of the land as part of our Torah obligations. Yet beyond its historic and social importance, its legal implications are enormous.

Effectively[1] dina demalchuta dina mandated that much of Jewish law was to be rendered inoperative, replaced by the laws of the country. Two Jews entering into contract negotiations would be bound by the local norms even if they were at odds with the rulings of the Torah. To give one simple example; whereas the Torah requires a worker be paid every day commercial practice is for people to be paid much less often, oftentimes only at the end of every month. Yet in actual practice, even in a yeshiva where the staff might all be Jewish the prevailing commercial practice is to be followed – unless the parties specify differently when hiring is done. It would be practically impossible and perhaps morally indefensible to have one set of laws in dealing with Jews and another with non-Jews.

In the area of criminal law Jewish law is today[2] completely replaced by the law of the land. As such Jewish law recognizes the right of counties to issue a death penalty even if a conviction is the result of “circumstantial evidence” and not two witnesses, as Jewish law mandates. Only in the area of ritual was the law of the land to have no effect on Jewish practice. A law mandating a worker to violate a rabbinic law of Shabbat is to be ignored. 

One of the exciting aspects of the return of the Jewish people to our homeland is the ability to apply aspects of Jewish law that lay dormant for many years. I refer not only to the laws of agriculture but to the laws of commerce, the laws that make up the “three bavas” bava kamma, bava metziah and bava batra. Since the modern yeshiva movement started by Rav Chaim of Volozhin in 1803 this has been the bread and butter of yeshiva education. However, so much of it was theoretical and had limited application in foreign lands. As important as dina demalchuta dina may be, with the return to the land of Israel we can now replace the laws of others with our own.

The fact that dina demalchuta dina reflects a “galut mentality” might explain the (rejected) view that dina demalchuta dina does not apply in the land of Israel. The Ran (Nedarim 28a) explains that dina demalchuta dina is based on the right of the King as sovereign in the land to evict those who do not pay rent - i.e. taxes. However, in Israel G-d is our sovereign and no human can evict us from the land. Philosophically speaking why should a law articulated in Bavel when we were living under foreign subjugation apply in the Land of Israel? This reasoning may make sense in some theoretical framework but is clearly an impossible view to put into practice. No society could function without the right of government to tax the people and in fact his view is not even quoted in the Shulchan Aruch (which, unlike the Rambam, often does quote rejected views). 

Not only does dina demalchuta dina reflect our galut experience it reflects a medieval worldview, a time when monarchs, dictators and worse ruled. Taxes were collected to benefit not the populace but the ruler and his friends. Nonetheless one was obligated to obey the law of land – provided the laws did not unfairly discriminate against people, or allow outright theft. Sadly, this was a common occurrence.

“One may not make change from the chest of an excise collector or from the wallet of a tax collector, or accept any charity [taken] from those places.” (Bava Kamma 113a)

The Gemara explains that we are dealing here with either self-appointed tax collectors or those who collect much more than they were obligated to – pocketing the difference. This is not dina demalchuta dina but rather chamsanuta demalchuta, “authorized” theft and one must distance oneself from such practice.

While dina demalchuta dina may reflect medieval norms sadly chamsanatu is alive and well. There are a very few, but still too many public officials who see public service as a means to enrich their private pockets – sometimes legally, sometimes not, and much of time by skirting the law or lowering moral standards. 

Thankfully we no longer owe our sojourn in our lands to the whims of a monarch. We live in democratic countries where all – including heads of state - are subject to the rule of law. Taxes are collected to benefit the people. Never in history have we had so many rights and freedoms. And in a democracy we no longer pay taxes because of dina demalchuta dina. Rather the citizens of the state are for halachic purposes considered members of a large partnership. When one cheats one is harming not some wealthy and possibly corrupt monarch but one’s neighbour[3].

As Rav Moshe Feinstein often noted, America is a “malchut shel chesed” a kingdom of kindness. This assessment reflects both his having escaped from Europe (before the war) and his deep understanding of Jewish law. We who were (for the most part) born in democratic countries must think no differently. How fortunate we are to have the opportunity to live in lands where freedoms are taken for granted. And how fortunate are those who enjoy those freedoms in the Land of Israel.

[1] Even in cases where dina demalchuta dina may not apply between two Jews on a practical level such matters little. This is because unless otherwise specified one is bound by the commercial custom of one’s locale which will reflect the basic legal framework of the country.

 

[2] While we are bound by the civil law of our country of abode two Jews may (and likely must) choose, when such is recognized under local law, to have their case heard by a beit din, just as one may choose arbitration over a court of law. No such allowance exists in the area of criminal law. This was not true in medieval times where Jews were often granted to right to use their own criminal justice system.

[3] This has major implications for the laws of mesirah, of handing over cheats and criminals to the government officials. Many claim such no longer applies in a democracy. Just as one would surely report a home break-in one is within his rights to report those who steal through tax evasion. How and under what circumstances this would be allowed is beyond the scope of this devar torah.