What is the status of the Law of the State of Israel in Halachah, and is there a conflict?

By David Atzmon, and Tirza Frankel
Yesodot The Center for the Study of Torah and Democracy
Yesodot1@netvision.net.il

A. Introduction

There are three main approaches to the Law of the Land and its status in Jewish Law, which will be presented and discussed, in the hope that they will add to general understanding of how Israeli Law is perceived in different circles.

First and foremost, it should be stated that Jewish sources specifically recognize the need to legislate laws and thus their existence. For example, Mishnah Avot (Pirkei Avot) 3:2 states,

"Rabbi Hanina, the Deputy High Priest, said: Pray for the welfare of the ruling power, since but for the fear of it, men would swallow each other alive."

[Kehati Mishnah, English version & commentary © JAFI
http://www.moreshet.net/oldsite/mishna/5762/16-06-02/monday.htm ]

The real question, however, arises were a law to conflict with personal beliefs not clear (no Halachic ruling would support a law that were contrary to Halachah, as has happened many times in Jewish history) but it is important to understand that Halachah itself is a combination of many factors.

B. Approaches and Sources

I. Community Law or Regulations

(Hebrew: Halachot Hakehillah, Takanot Hakahal)

The Ram"a – Rabbi Moshe Isserles of Cracow - ?1530-1572 (in Commentary to the Shulkhan Aruch) writes,

"It is the custom in every place that the elite of the city shall be as a High Court of Law in their city, for beatings and punishments, what they outlaw shall be outlawed, etc…"

The Halachic authority that compels compliance with the community's laws in the Diaspora is, therefore, either on the basis that the community accepts them, or that the body consitutes itself as a Court of Law.

In actual fact, however, most of these laws relate to financial and administrative matters and regulations that were not handled by local or national Civil Law (property and estate, validity of office and regulations…).

In any event - . the communities are granted emergency powers to deal with criminal cases and threats to the security of the community, even applying coporal and capital punishment.

II. The Law of the Kingdom is the Law

(Aramaic: Dina Demalchuta Dina, Talmud, Baba Batra 54:2)

There is disagreement between the Rishonim as to whether this applies to a Jewish regime and different Halachic authorities have addressed this fundamental concept.

a] The Rashb"am – Rabbi Shmuel ben Meir, grandson of Rashi - ?1085-?1174 (in his commentary to Baba Batra 54:2) rules that because the community accepts the laws and statutes of the kingdom, Dina Demalchuta applies to any kingdom (country),

"All taxes, local taxation, and royal laws that are customarily formulated in their kingdoms – the law is that all those in the kingdom shall willingly accept the laws of the king and his statutes, and the Halachah is that this is an absolute law…"

b] Hara"n – Rabbi Nissim ben Reuven of Gerona – 1320-1380 (in Commentary to Talmud Nedarim 28, Halachah #11)

His position is that the ruler is the proprietor, who hosts all those residing, therefore one must comply with his orders. This does not apply to a Jewish regime in Eretz Yisrael, because the ruler is not the owner of his country,

"The law of the kingdom is the law, because all the country is his and he can say to them, if you do not obey my commandments, I will expel you from the land."

c] The Rambam and the Shulkhan Aruch followed the Rashba"m and ruled that the "Law of the Kingdom is the Law" applies to a Jewish regime in Eretz Yisrael.

"In accordance with the idea that the king's law is the Law and not only this, in that a person who evades customs duty is violating the law, but also because he is depriving the king of his rightful portion, whether he be a gentile or a king of Israel." [Laws of Theft and Loss. 5]

d] An example is brought by a modern Rabbi, R. Yaakov Ariel of Ramat Gan, who writes in "Road Accidents in the Halachah",

"To the prohibitions that the Torah commands, one must add an additional commandment of observing the Law. Despite the fact that the Law is a human creation, its authority is established in the Torah. For it is the Torah that has obliged us to appoint a social leadership, in order to preserve the life and property of all the citizens in the state. For, 'but for the fear of it, men would swallow each other alive' … it is certainly our duty to obey the authority that issues regulations… even when there is a Halachic disagreement about the scope of the authority of 'The Law of the Kingdom is the Law', in this connection (referring to Traffic Laws) … it is our obligation and duty as citizens to comply with the laws and regulations that have been issued."

III. The King's Justice

(Hebrew: Mishpat Hamelech)

This approach maintains that the Torah's commandment to obey the King's Justice or Decree (i.e. in Biblical times) apply to modern Israeli government. It was fostered by Chief Rabbi Kook, who wrote in his "Responsa on Laws of Torts",

"The facts indicate that, in an era where there is no king, because the Laws of the kingdom are also those that affect the people's general situation, these privileges (rights) of Law return to the people in its entirety."

C. Discussion

The way in which Israeli citizens address the authority of Law govern their behaviour:

Community law – Israeli Law applies to financial matters. However, the communities are granted emergency powers to deal with criminal cases and threats to the security of the community.

The King's Justice – According to Maimonides and other authorities, the Halacha invests the political arm (“the king”) with wide discretionary power to undertake action for the moral and physical well-being of the community. Many religious people in Israel link this discretionary power to the notion that the state of Israel represents the beginning of the Redemption.

Dina Demalchuta Dina – The state is granted routine power to order civil and financial matters.

The first two approaches deal with the issue of whether the state law or decisions can override the Halacha. The community law approach allows community regulations to override the Halacha when it is a question of the security of the community, even if the security is not threatened in an immediate sense. The King’s Justice approach permits the King (the political power) to override the Halacha that appears in the code if such overriding enhances the moral or physical well-being of the community in a very significant way.

In any event according to many contemporary authorities, disobeying military orders can be interpreted as a threat to the security of the community. Hence orders must be obeyed even if one thinks that they go against the Torah.

From this, it should be understood that a religious person's conflict with Israeli Law is not a Halachic conflict, but an internal and perceptual one. While a person in a democracy is free to dispute and oppose Laws where they conflict with his or her conscience, this is nevertheless the exception – not the rule; moreover, this is once again a personal matter and there is no right to incite others to flout the law. (This concluding paragraph is not clear at all).

D. Conclusion

Rabbi Eli Sadan, from an article about Kavod Hamalchut (Respect for the Kingdom)

"Kavod Melachim - respect for kings (or the modern equivalent) is not only a need to respect the Law, public order and behaviour, lest society disintegrate, but far more than this. It is a recognition of a Divine issue, that G-d "shared His dignity with those of flesh and blood" and that He is at the foundation of all – whether it is a matter of respecting the kingdom, the king, or those who represent the Law – and its importance cannot be over-stated.

"Thus, an elected leader, such as a Prime Minister, who holds extensive authority and is well-informed, and who is obliged to make decisive and fateful decisions at any particular moment, represents … the tool through whom the Creator is currently leading our people. We should pray that he will be equal to the task and support him.

"Our prayers (i.e. the Prayer for the State of Israel) should be said with intense meaning: "Grant Your enlightenment and assistance to its leaders, ministers and advisors, and help them with Your wisdom…", because through them and by their hand our national leadership is unfolding, even in the absolute literal sense: for all current national issues are decided by these people in the final analysis, and therefore we must do everything we can to show our support, encourage them, and enhance their strength."

English: Gila Ansell Brauner, with Ori Hever

More Hebrew References:

http://www.etzion.org.il/dk/5763/922mamar1.htm
http://www.yeshiva.org.il/midrash/shiur.asp?id=1952
http://www.tzionut.org/articles_details.asp?id=30
http://lib.cet.ac.il/Pages/item.asp?item=10576
http://www.daat.ac.il/daat/kitveyet/sinay/dinna-4.htm
http://www.daat.ac.il/daat/kitveyet/sinay/gidi-4.htm
http://www.mechon-mamre.org/b/l/l4110.htm

 

 

 

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08 Nov 2005 / 6 Heshvan 5766 0