The kingdom is the law

The Talmudic principle Dina demalkhouta the realm of law, has a unique feature: it is one of the few undisputed principles, at least as long as one is limited to the Talmud itself. In fact, it appears in the Talmud that in four places, so it is easy to get a fairly complete picture of the fundamental contexts in which it operates. However, if the principle is not discussed, its justification, it has been understood in different ways. The differences appear which then have an importance that is not only academic.

They have consequences as soon as one wishes to apply the principle in situations different from those provided directly by the Talmud. These considerations control the structure of this study. After indicating the Talmudic sources, it will seek to identify the basis of the principle. This will lead to define its exact scope and in particular by clearly defining the limits.

It must indeed point out at the outset that it is often wrongly invoked. Through ignorance or perhaps sometimes a lack of intellectual honesty, commonly used this principle irrelevant. Let's see first the Talmudic sources. The first is in the Nedarim treated 2. In essence, the Mishnah 3 it states that a taxpayer can tell the collector that the property that it is preparing to enter does not belong to him.

The same taxpayer is authorized to take the oath. The Gemara is surprised that such a thing is allowed. But nevertheless, asks the text, the realm of law is the law, should not seek to evade taxes! Answer: This is only permitted in the case of a collector who acts arbitrarily, for example, a `` collector 'exercising without appointment, a racketeer, or a collector that sets its own amount of 'taxation. But if the amount of the tax is clearly defined and where the collector is a civil servant, it is obligatory to pay taxes honestly, the law of the kingdom is the law.

A second source which is our principle appears in Baba Kama Treaty 4. Based on the fact that Jewish law forbidden to use a stolen property, the question arises: how can it be allowed to cross a bridge built with logs seized by the administration in private? If this entry is theft, it is forbidden to cross the bridge. But, says the Talmud again, the law of the kingdom is the law. The administration can enter the woods to build bridges, leaving the owner to be indemnified thereafter. In other words, the State has a right of expropriation to perform public works.

Third text in Baba treated batra 5. This text describes various applications of our principle which I will retain only the most significant. According to Jewish law, the occupation of land, as long as it does not confer in itself a property right. But in Babylonia, according to the Talmud, an acquisitive prescription intervened after 40 years.

What then is what to do if a Jew buys a non-Jewish land that belongs to another Jew but that the non-Jew has held for 40 years. The realm of law is the law; the rules governing the ownership of land is the responsibility of power and rule over our own principles.

So now three circumstances where the principle of the kingdom law applicable is the law: the obligation to pay taxes, expropriation legitimacy, validity of rules established by the non-Jewish power over land ownership.

In these three passages, at least at first glance, the demalkhouta Dina rule is as strong and without shades. A fourth text in the treatise Gittin 6 introduces a more nuanced issue. The Mishnah states:

The documents issued by the non-Jewish courts have the force of law except for divorce proceedings and freeing slaves. The Gemara following text considers that this rule must be thorough. The Gemara readily admits that the rule applies to deeds of sale but she questions the status of a deed of gift. To understand the hesitation of Gemara, consider what is the difference between a field sales act and an act of divorce. Why is it a valid and the other could it not be?

First answer: it is not the delivery of a deed that constitutes the transfer of ownership. According to Jewish law, it generally takes effect upon the delivery of the money or at the time of taking possession. The act established before the non-Jewish court only serves as proof that the money was given. It is not essential, it does not constitute the transaction.

However, in the case of a divorce, it is the delivery of the document of the husband to the wife before two witnesses that determines the divorce itself. But Jewish law makes no constitutive value to acts established by non-Jewish courts and therefore a divorce granted under these conditions has no effect. An act of non-Jewish court can be used indirectly as evidence provided that the judges are not suspected of corruption but it has no intrinsic legal value.

It is through the delivery of the document that the donation takes effect. So not only evidential value; a deed of gift has a constitutive value and therefore should not be valid. But on the other hand, the text of the Mishnah seems to have ruled that acts of divorce or postage and not acts of donation, so there is reason to be puzzled.

The Gemara then gives the two options. The first is our principle to intervene again, the law is the law of the kingdom, and therefore a deed of gift established non-Jewish court, despite having constitutive value is valid. Second possibility: a deed of gift should be treated as an act of divorce and, therefore, it is not established before a Jewish court, it is worthless.

The Gemara does not settle the question. However, both in the text of the Mishnah in the following discussion, a point are not called into question: a divorce certificate issued by a non-Jewish court has no value in Jewish law. The distinction between acts serving as evidence and constitutions, may possibly be defeated by the rule of the law of the kingdom, is certainly not the only cause and must be completed.

To this end, remember that generally speaking, Jewish law distinguishes two areas. On the one hand, there is what we call dine mamonot, laws relating to money matters, on the other, the laws of issur veheter, laws establishing what is prohibited or permitted. Such as property transactions, purchases, sales, rental, the right of damage, tax laws are among the mamonot dine. By cons, personal law, marriage and divorce, parentage rules, naturalization. The laws of slaughtering animals, the laws of Shabbat and festivals are part of the field veheter of issur, prohibited and permitted.

This distinction gives us a second response. The principle of the kingdom is the law can not apply at most only in the first field, which of money matters. Everything concerning the prohibited and the license is immediately completely excluded. Thus it is clear that a divorce certificate issued by a non-Jewish court is worthless to Jewish law. But the hesitation of Gemara about the donation acts suggests that even in the field of money matters, things are not so simple and should perhaps introduce some details, what following this study actually show.

Let us now examine what is the theoretical basis of the principle Dina demalkhouta, the law of the kingdom is the law. On this point, the Talmud commentators have identified several approaches and sometimes even divide. It includes essentially two doctrines, each of which can moreover be formulated with various shades.

The first doctrine appears in Rabbi Eliezer of Metz, tossafiste leading the twelfth century, and was subsequently repeated by many Talmudic. Answer: because the king is the rightful owner of the land under the right of conquest. It can tell us at every moment to  go home. It is not there simply a question of fact or a power struggle.

Just as a private owner can prohibit anyone from entering his home or take up residence, and the royal power can legitimately chase the kingdom sees fit. The right to property can be the result of conflicts and previous violence but when these conflicts have subsided, it is nonetheless a right. Most of today's borders are recognized by international law while very often the result of past wars.

The first way to understand the principle Dina demalkhouta has important consequences. First, it does not apply to the land of Israel to a king or a Jewish power. The land of Israel is a common property of all Jews; it is not the property of the king under a right of conquest. All Jews are involved and the king is only one of them. But above all, greater restriction, the principle applies only to problems related to land.

Everything related to the direct relationships between individuals outside its scope. Tax law must be respected as the tax is considered a fee for to reside in the country. Donations that have been said above they have the force of law are limited to donations of real estate, property whose king legitimately fixed ownership rules. However, everything related conventions, contracts between individuals, even when it comes to money problems, remains the exclusive competence of Jewish courts since it is not a land problem.

The second approach developed by the commentators is less restrictive: the king's power is rooted in the agreement of the inhabitants. Maimonides states that its currency in the country, indicating an accepted authority to distinguish from a combination of armed robbers.

The law of the kingdom therefore draws its legitimacy from its acceptance by the population. This suggests an immediate logical consequence: the king's law is the law in the area left by the Jewish law to the discretion of the population. One finds thereby distinguish dine mamonot, laws on money matters, and issur veheter, laws prohibited and permitted. Indeed, dine mamonot are an area of Jewish law where the community has almost total power to decide.

Certainly we find in the Talmud the definition of a specific Jewish law. But a community can legitimately depart from these rules where there is agreement of the population. For example, the Torah provides a status for the score to object. If we entrust to keep an object and if the object is damaged, lost or stolen, the keeper must, as appropriate, repay the object or oath that kept him properly. But it is perfectly legal to agree with the custodian of another procedure and thus escape the status under the Torah.

This is true of virtually all money matters. Similarly, a whole community can give different rules than required by Talmudic law. In summary, in terms of money, the population has a legislative power. The law of the king was implicitly accepted by the population, it thereby acquires its legitimacy. Maimonides sums this up clearly 7.

If the law of the king is that one does not acquire land only by a written document or the payment of the prize or any other provision, we comply with this law, for the entire king's laws for issues money, it is from them that we believe. But, conversely, questions of banned and permits beyond the free disposal of the population.

A community may decide by a vote now that he is authorized to work on Shabbat, eat rabbit or carrion; it can arbitrarily change the laws of marriage and divorce, or prohibit circumcision. In addition, the detail of the legislation in these areas is the responsibility of hakhamim, the scientists.

The Talmudic authorities, not the population. Therefore, for all these issues, the principle of the kingdom is the law does not apply. For example, if political power entirely legitimate also decides to ban circumcision, this decision forces us in any way con. In general, even employ a little fuzzy terminology, decisions of political power on the moral and religious life does not constrain us. Judaism is here strictly secular: it does not accept that political power encroaches on its own domain.

For completeness, we note that there is still a third basis for the principle Dina demalkhouta. This foundation, which often appears among commentators, especially in Rashi, should not be seen as contradictory to the previous but rather as a supplement. The king, political power has the function that called takanat Hamedina, the proper administration of the country.

It must ensure the public peace, the proper functioning of the economy, ensure the possibility of transactions and exchanges in a stable order. One of the seven laws of Noah  son 8 is to give laws. The principle Dina demalkhouta can be interpreted as one of the elements of the legal order in which the institution is considered by our tradition as a universal obligation. The demalkhouta Dina rule is thereby invested with a value in itself than that of the single acceptance by the subjects of the government's authority.

Such are the foundations of our various recognized principle right from the conquest for some, voluntary acceptance of the political order for others, finally element of a civilized order and then invested a universal value.

We must now identify more precisely the limits of the principle. We have already met the first criterion to be met for that state law is binding, that political power is exercised in a stable order and accepted by the population. The tradition does not set for the acceptance process of power a rigid frame. Acceptance formulated by an explicit vote tacit acceptance, a broad range of possibilities is opened. However there is little doubt that political democracy is the most appropriate framework. This explains the traditional view that the authorities generally manifested toward this type of diet.

But it is not enough that the power is accepted that its decrees are automatically legitimate and therefore binding. To be valid, a royal decree has yet to have a universal character, be a general law. Maimonides says 9:

A king who seized the area or field of one of the locals unlike the fixed laws is a thief; that buys [the land] to the king must return it to its owner. The principle is: any law enacted by the King [laying ownership rules] and applicable to all and not just on this individual in particular, such a law is valid. An acquisition made ​​in accordance with this law is not a flight; however, what the king seized from such a person as opposed to the known law of all is a flight.

Many policymakers, for example Ramban, are even more demanding. Literally translate our principle, Dina demalkhouta the realm of law is the law: law of the kingdom and not law of the king, Ramban says. A law is binding only if it is a law of the kingdom, that is to say, a long-standing law and not of a new decree. It specifies 10:

If a king decreed a new law, even if it is a law applicable to all, if it is not one already implemented by previous king’s laws, it is not valid. It is clear that this additional requirement protects against including any emergency decision arbitrary or tyrannical. Moreover, in most decision, expressed a clear opposition that the principle Dina demalkhouta would lead to the abandonment of our own laws, even in financial matters. In this respect, it should distinguish what is of royal authority, political power itself, and what is the responsibility of the courts, that is to say the legislative and judiciary. The principle Dina demalkhouta applies only to matters of direct and traditional political power, the prototype being taxation. But for the rest, for example with regard to conflicts between individuals, only the Jewish law must be taken into account.

Here for example a text of Rabbi Joseph Kolon, a decision-leading 11. Asked about an issue where the law of the country attached great importance to a written while Jewish law did not grant him a secondary importance, here in essence what it says 12. You wonder if he should be judged based on written non-Jewish laws as alleged Reuben. To me, this is an obvious thing that this claim has no value.

Although according to all decision, the Kingdom of law is the law, and that for this reason, the donation of documents executed before non-Jewish courts are valid, Rabbi Eliezer of Metz wrote that it applies this principle as to whether a land acquisition may be effected by an instrument in writing, but not the details of the case law on the writings. And even for those who think the kingdom is the law for other money matters, this applies only to tax problems and those which it is the custom to be set according to the rules decided by the Kings.

But regarding personal conflicts between a man and his neighbor is archi clear that the principle does not apply because it would lead to cancel all laws of the Torah. In summary, until the time of Emancipation, the principle Dina demalkhouta, although undisputed principle, has a limited field of application. It is concerning that which is clear from traditional political authority.

This excludes initially completely the field of prohibited and permitted. It can only intervene at the most only for money matters. Rabbi Eliezer of Metz and those who followed, limitation is even more strict. The principle stems from what the king's rightful owner of the land, and only the consequences of this fact must be taken into account. For Maimonides, the principle has a larger extension. It can be applied to all money matters, but only to the extent that they are problems traditionally managed by the political authority; provided that are in question legal issues within the competence of regular courts, only the Jewish law is to be considered.

With the Emancipation, the picture changes. In recent decades, the Jewish people lost all the legal autonomy which it previously had. The centralized state as it appeared in the West is not compatible with the existence of communities within it obedient to internal discipline. Despite some attempts at resistance, traditional authorities are resigned to this fact. They are then given to the principle Dina demalkhouta possible maximum extension that is not in formal contradiction with Jewish law.

The distinction made previously between political power and legal authority has been erased. It was considered that the legislative and judicial powers are ultimately an emanation of political power, which obviously corresponds to reality in the modern world. Therefore, it was assumed that the principle now applies to all money matters. Jewish laws in this area have become an essentially academic subject of study, almost similar to the laws of sacrifices in the temple of Jerusalem.

However, no more than before, any major traditional authority has ever admitted that the Dina demalkhouta principle can be applied in the field of issur veheter of prohibited and permitted. There is an impassable limit and undisputed. One can also add that in some communities, an internal arbitration system has sometimes been set up. When such a system exists, it should not make use of a non-Jewish court after attempting to resolve the conflict before the Jewish court. But it is often difficult to apply this rule, the Jewish court do not always have the authority to enforce its decisions and do not have the means necessary investigations.

In the State of Israel as well, it is as if the principle Dina demalkhouta was applied in its maximum extension. Excluding the personal right, all of the legislation entirely emanates from the political power. This is certainly consistent with the current practice of our democracies, but it is questionable whether, in regard to the Jewish people, this is indeed an ideal organization. In my view, it follows at least two particularly negative consequences.

The first is forgetting a legislative legacy became a dead letter, as this heritage is an important if not essential part of Jewish culture. Judaism is reduced to be a religion among others, which is to say it is disfigured. The second consequence is a corollary of the first. Traditional authorities, having lost their own social role in the definition and management of the law, often tend to intervene in everyday political life. But they have no special competence in this field and it has no other result than to tarnish their image. 13

Ultimately, the only viable solution is that everyone finds his place. Traditional authority must recover its social role in the definition and implementation of the law. It must not remain confined to ritual and religious sphere, but must cease its participation in politics day by day, which is the responsibility of the people through its representative institutions. The Torah teaches us not to cook together milk and meat, not to mix wool and linen, not to cross different species. In social life too, the mixture of genres produced a very poor culture broth or rather ignorance.