Dina d'malkhuta dina

Dina d'malkhuta dina (alternative spelling: Dina de-malkhuta dina) (Aramaic: דִּינָא דְּמַלְכוּתָא דִּינָא‎‎, "the law of the land is the law"), is the halakhic rule that the law of the country is binding, and, in certain cases, is to be preferred to Jewish law. The concept of dina de-malkhuta dina is similar to the concept of conflict of laws in other legal systems. It appears in at least twenty-five places in the Shulkhan Arukh.[1]

Origins

Origins of this idea come from Jeremiah's letter to the Babylonian exiles: "seek the peace of the city to which I have exiled you and pray to the Lord in its behalf; for in the peace thereof you shall have peace." (Jeremiah 29:7)[2] For the exiled Jews, their submission to gentile rulers was viewed more as a "pragmatic recognition of brute force" than anything else.[3] The first to use Jeremiah's message as a basis for laws concerning Jews in foreign lands was the Mar Samuel (ca. 177–257), a Talmudic scholar from Babylonia.[4]

Within the halakha and in the Talmud

The dina was the only extraneous element that was incorporated into the halakhic law structure, the foundation of jurisdictional autonomy of Jewish communities.[5] The statement dina de-malkhuta dina, appears 4 times in the Babylonian Talmud and is a nod to Jewish acquiescence to Gentile authority.[6]

Application of the dina to Jews

The Rabbis required "minimal justice" from non-Jewish rulers, as such for the dina to be accepted there were two stipulations.[7] These stipulations were that laws had to be both explicit and universal, to safeguard Jews from gentile laws that could potentially be used against them.[8]

Conditions of dina in civil and religious matters

The Rabbis created terms that could be easily used and identified for highlighting the jurisdiction of the dina, these mamona (civil and economic matters) were places where the dina could legitimately supersede even Torah law, and the isura (forbidden or religious matters) that the gentile laws could not be heeded against the Torah.[9] Medieval halakhists developed two approaches to the dina rule.[10] First was the "contractual" theory where the laws of the ruling king are binding upon the subjects of the realm because they had agreed in advance to accept the king's laws. Maimonides and the Shulkhan Arukh, the leading halkhic decision-makers (poskim) are the main proponents for this theory.[11] Second is the "ownership" theory, where the Jews recognize the king’s law as the land is his personal possession; this theory is supported by the Talmudic commentators (mefarshim), however, the work of the mefarshim are analyses of the Talmudic text and, as such, cannot for certain be established as agreed-upon verdicts on the theory.[12]

Application to modern Israel

In regards to modern Israel, the Talmud cites the dina as applying only upon the laws of a Gentile government and the sovereignty of a Jewish king, as applicable to the dina, is never cited in the Talmud.[13] In the argument supporting the dina's applicability to the modern Jewish state, Tenbitsky, a commentator on this subject, presents the principle of niha leho, the Jewish community's acquiescence to governmental power for the sake of public order.[14] Using this logic, the niha leho can be applied to any legitimate governmental purposes such as taxes for national defense, and, therefore, the dina can be applied to a Jewish sovereign, as the necessary power cannot be denied as per niha leho.[15] However, under the "ownership theory" the dina cannot be applied to a Jewish sovereign in the land of Israel as all Jews own the land together, therefore a Jewish king or government, an equal landowner, would not be able to expel others from their domain.[16]

References

  1. ↑ Emanuel B. Quint A Restatement of Rabbinic Civil Law
  2. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 431.
  3. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 432.
  4. ↑ Salamon Faber, review of Dina de-Malkhuta Dina [The Law of the State Is Law], by Shmuel Shilo, Jewish Social Studies 37, no. 3/4, Summer/Autumn, 1975, 345. http://www.jstor.org/stable/4466899
  5. ↑ Salamon Faber, review of Dina de-Malkhuta Dina [The Law of the State Is Law], by Shmuel Shilo, Jewish Social Studies 37, no. 3/4, Summer/Autumn, 1975, 345. http://www.jstor.org/stable/4466899
  6. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 293. http://www.jstor.org/stable/1396177
  7. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433.
  8. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433.
  9. ↑ Menachem Lorberbaum et al., eds., The Jewish Political Tradition: Volume 1 – Authority (New Haven: Yale University Press, 2000), 433–434.
  10. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  11. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  12. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  13. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  14. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  15. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294. http://www.jstor.org/stable/1396177
  16. ↑ Mark Washofsky. "Halakhah and Political Theory: A Study in Jewish Legal Response to Modernity," Modern Judaism 9, no. 3 (Oct., 1989), 294–5. http://www.jstor.org/stable/1396177

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