A Halakhic Perspective on Obeying the Laws of the State (Column 37)
With God’s help
In recent days, an article by Rabbi Ariel Brali (head of the Mishpat La’Am Institute) reached me, dealing with the question whether disobeying the law is prohibited by Jewish law (there is also a shortened version of the article on the "Lema’aseh" website). The topic, and this article in particular, raises several principled points regarding Jewish law, and I wanted to touch on them here. I should add a note that became clear to me after publication. The link points to the article online, but my column refers to a broader article that reached me as a file. Therefore some references will probably be inaccurate (footnote numbers and the like).
Defining the Question
Rabbi Brali opens the article by defining the subject under discussion: even with regard to laws that have halakhic force (not all of them necessarily do), the question arises whether the attitude of a believing Jew who is committed to Jewish law should differ from that of an ordinary citizen.
Already here I should note that I have in fact been troubled by similar questions for years. Suppose the prime minister has the status of a king, and suppose there is a halakhic duty to honor a king. Does that mean that what an ordinary Israeli citizen allows himself toward the prime minister would not be permitted to someone committed to Jewish law? My sense is that it would not. The parameters of honor due to sovereign authority are determined by what is accepted in honoring that particular authority (a democratic regime). Therefore, if an ordinary Israeli citizen may curse and revile the prime minister when he irritates him, I see no reason why a Jew committed to Jewish law should not be able to do so as well. Even if the prime minister is a king, he is a king within a democracy, and the attitude toward a king within a democracy is determined by the standards accepted in democracies, not by Jewish law as formulated in a situation of a monarchical king.
Likewise, even if there is a halakhic duty to drive in accordance with traffic laws (see this in my article published in Tzohar 7)[1], one must still ask whether I am obliged to be meticulous about minor infractions no less than major ones and never exceed the permitted speed, or whether I should drive my car as every other normative citizen drives, that is, cut corners from time to time. My intuition says yes. The halakhic obligation is determined by accepted norms. So what is the meaning of the halakhic obligation? Mainly to add another halakhic layer atop the civil-legal-secular layer. One who violates the secular layer has violated not only the law but also Jewish law. He is not merely a legal offender but a halakhic one. But beyond that, there is also a difference in the scope of the prohibition between the legal plane and the halakhic one. Someone who violated the law but acted as is customary for a reasonable, normative citizen violated only the law, not Jewish law.[2]
The example he gives is the law governing jointly-owned buildings, which according to the author of Tzitz Eliezer has halakhic force. Among other things, this law requires a person living on the ground floor to share in the cost of the elevator, even though he does not use it. Clearly, if a person does not pay his share he is not a robber, since he has taken nothing from anyone. So does he violate a halakhic prohibition? I did not really understand the question. Clearly he does not violate the prohibition of theft, but he does violate the obligation imposed by dina de-malkhuta (the rule that the law of the kingdom is law).[3]
He adds the example of a person who does not send his children to school and thereby violates state law. Has he also violated a halakhic prohibition? Unlike the previous case, my intuition here would be to answer no. Just as an ordinary citizen who does this remains within the legitimate range, even if he formally violates the law, so too from a halakhic perspective this should not be seen as an offense. He is acting as a normative citizen, and that is what Jewish law requires. As noted, there is not necessarily an identity between the exact boundary of the law and the halakhic obligation of dina de-malkhuta. We are dealing with a democratic regime.
Two Meanings of Dina de-Malkhuta
At first glance, the question is unclear. If there is indeed dina de-malkhuta in Jewish law, even with respect to a gentile king, and if the Israeli government and the Knesset have the status of sovereign authority (as he assumes, though at the end of his remarks he also examines its force from the standpoint of communal enactments), then clearly there is a halakhic prohibition involved here. What is the meaning of dina de-malkhuta if there is no duty to obey?
Rabbi Brali raises there two possible ways to interpret dina de-malkhuta: 1. The king’s authority, from which the duty to obey him also follows. 2. The king’s authority to punish those who do not obey, but the citizen has no duty to obey. The second possibility sees dina de-malkhuta as permitting the king to violate the prohibition on damaging or injuring another. In halakhic terminology, this is not a prohibition and not an obligation, but a "permission-granting rule." Dina de-malkhuta permits the government to punish citizens, something any other person would be forbidden to do to his fellow.
Decision in Favor of Option 1
He brings various sources showing that in matters touching public welfare there is a duty to obey. For example, Maimonides, in Positive Commandment 173, writes that there is a duty to obey and that the king has the right to punish those who do not obey as part of the order of the state. But following this he asks: what about laws that apply to the individual (compulsory education, for example)?
Let me make a methodological remark here. One may ask: from where did Maimonides himself derive this? Is the fact that Maimonides wrote something enough to establish a prohibition? What is the source for Maimonides’ claim that there is a duty of obedience? If there is indeed another possible interpretive option (that this is only permission to punish), then what is the basis for rejecting it? This brings me back to a distinction I have made more than once between first-order decision-making (which is based on the primary sources and the underlying reasoning) and second-order decision-making (which relies on precedents and close readings of their language). First-order decision-making seeks what the Torah says or what the Holy One, blessed be He, wants, whereas second-order decision-making seeks what Maimonides or the Shulchan Arukh says (of course, the assumption of those who adopt this approach is that their words reflect the will of God).
The Reasoning Underlying Maimonides’ View
It seems to me that Maimonides’ words are rooted in a simple logical consideration. Authority has no meaning if there is no duty to obey it. When we say that the sages have authority to establish prohibitions, that necessarily means that we are obliged to obey them. In the context of rabbinic prohibitions there is also no punishment, and therefore there it is clear that authority means the citizen’s duty to obey, not merely permission to punish. The power to punish outside the strict law exists for the sages regardless of their authority to enact ordinances. They can punish outside the law even without enacting an ordinance. Thus, for example, we compel against the trait of Sodom (the trait of Sodom) (under the Talmudic rule in Bava Batra 10), or toward conduct beyond the letter of the law (beyond the letter of the law), on the basis of the medieval authorities as ruled in several places in the Shulchan Arukh, even when there is no halakhic obligation, not even a rabbinic one.
This can be seen even more sharply in the words of the Mishneh LaMelekh. The Talmud in Sanhedrin (82a) states that if Zimri had turned around and killed Pinchas, he would not have been executed for it. That is, Zimri could have killed Pinchas under the law of a pursuer, despite the fact that Pinchas performed a proper act that received God’s blessing. The Mishneh LaMelekh (Laws of Murder 1:15) asks whether an inadvertent killer may kill the blood-avenger who is pursuing him under the law of a pursuer. He then continues and asks what about a criminal who is liable to death: can he kill the agent of the religious court under the law of a pursuer? To the second question he gives a negative answer. It is obvious to him that this is forbidden, but he gives no reason. It seems to me that the explanation is as follows: the duty to execute a Sabbath desecrator rests on the public as a whole. The religious court is the public’s agent, charged with carrying out that duty on its behalf. The entire public is responsible for the fulfillment of this duty, and the execution is carried out by the religious court. If so, then even the Sabbath desecrator who has been sentenced to death is part of the public that is obliged to execute him. That does not mean that he is obliged to kill himself, since we do not demand that much of him (and perhaps that would even be forbidden, though one can debate the point). But it is clear that he must cooperate with the court’s agent and with the court, since they are his agents as well in this matter. This is unlike the case of an inadvertent killer or one who has relations with an Aramean woman, where the killer is not acting as the fulfillment of a duty of the public, and therefore the threatened person may defend himself and even kill the pursuer. He himself is not party to a duty to kill his own self.
This means that the authority of the government to do things is authority entrusted to the public, and the religious court or the government acts by virtue of it. The citizens are part of that same obligation, and therefore the duty to obey them follows from the very authority granted to the government or to the sages. The two cannot be separated.
By way of analogy, I will mention what I once saw in Haim Cohen’s book, HaMishpat, where he notes that Israeli law contains no prohibition against stealing or murdering. What appears there is that the thief or murderer is punished in such-and-such a way. That is, the law imposes an obligation on the authorities to punish the thief or murderer, but it does not prohibit the citizen himself from stealing or murdering. These remarks reflect a liberal conception according to which the law cannot forbid things to the citizen, but can only set policy for the organs of government. But that is nonsense, of course, since setting policy restricts the citizen’s freedom no less than directly prohibiting him. If there is no possibility of forbidding him, there should be no possibility of punishing him. The two cannot be separated. And indeed, it seems to me that most commentators would agree that the law certainly also forbids stealing and murdering.
As an aside, I would note the words of Sefer HaChinukh on commandment 69, where he points out that there cannot be punishment without prohibition (a formal warning). Punishment without prohibition means that there is here a kind of mechanical conditioning, that whoever does such-and-such receives such-and-such a punishment, rather than a sanction for a transgressive act. But that cannot be, and that is precisely my point.
At this point all that remains is to return to the methodological plane and ask what Maimonides’ words add for us beyond the reasoning itself. If I had advanced the reasoning on my own, it would have been enough to establish that there is a duty to obey the directives of the law, for Maimonides too ruled this on the basis of that reasoning (or something similar). And if there were no reasoning or Talmudic source, then it seems to me that the mere fact that these things appear in Maimonides would not suffice to establish the existence of a prohibition.[4]
Laws Unrelated to Public Welfare
Now Rabbi Brali turns to laws that are not connected to public welfare (building regulations[5] or compulsory education law). Is there a duty to obey there as well, or is there only the force of dina de-malkhuta? He argues that there is logic to the idea that, were it not for fear of government, each man swallowed his fellow alive (people would swallow one another alive), but reasoning does not create a halakhic prohibition. Again, his words are not clear. He assumes at the beginning of the discussion that dina de-malkhuta applies even to such laws, and merely wonders whether there is a duty of obedience. But the discussion itself deals with the question whether there is dina de-malkhuta at all. Beyond that, it is quite clear that the logic of each man swallowed his fellow alive is itself the basis of dina de-malkhuta (apart from formal arguments based on ownership of the land, mentioned by the medieval authorities). He himself cites Rashbam, the Ran’s Derashot, and the Chatam Sofer as seeing this as the foundation of dina de-malkhuta.
If I understood him correctly, in the end he nevertheless wants to claim that there is indeed dina de-malkhuta, but no halakhic duty of obedience. And indeed that is his conclusion (near his note 22, where he refers to an article by Rabbi Yehonatan Blass). The duty to obey stems from proper conduct preceded the Torah (proper conduct that preceded the Torah), not from Jewish law.
But in light of the analysis I offered above when discussing the reasoning underlying the duty of obedience, that cannot be said. Once there is dina de-malkhuta, there is also a duty of obedience. Here again we have the difference between first-order decision-making (which descends to the roots of the laws and their source) and second-order decision-making (which relies on precedents and close readings of their language).
Discussion of Examples
Rabbi Brali brings several examples for this. First he cites the well-known remarks of R. Shimon Shkop on the theory of law, where he determines that there is a pre-halakhic obligation to preserve property law. But it seems to me that this is an example to the contrary. That obligation indeed exists prior to Jewish law and independently of it, but once it exists it also becomes an inseparable part of Jewish law. It is a basic part of our monetary law.
The next example he brings is from the Rema (Hoshen Mishpat 369:6), who rules that evading customs duty is a violation of dina de-malkhuta, but the customs collector cannot force him to hand over the money. Again, this example is an example to the contrary. The Rema does not write that there is no halakhic prohibition here and that it is permitted to evade the customs duty. Rather, since this is not theft but a dina de-malkhuta offense, there is no direct monetary liability; only a debt is created, and therefore one cannot coerce payment and seize it. But the fact that a debt is created means that it has halakhic force, and clearly there is an obligation to repay debts. The question of how this is implemented is an entirely different question. There is indeed a difference between the prohibition of Do not steal (do not steal) and the duty to obey dina de-malkhuta with respect to enforcing the debt, but it is a complete halakhic debt, quite clearly so.
In the end I saw that this is indeed also his conclusion near note 26 (contrary to the position of Rabbi Zalman Nechemia Goldberg cited there). He also brings proof for this from Maimonides’ discussion of taxes, where he sees this as a full-fledged monetary obligation within the category of theft. And certainly so when someone benefits from the services the state provides and does not pay his taxes (see his note 31 in the summary).
Concluding Discussion
Rabbi Brali’s conclusion is close to my own position, although his discussion seems to me somewhat problematic. But after all is said and done, the question arises why any of this matters at all. Whether there is a halakhic duty to obey and whether the duty stems from proper conduct that preceded the Torah, in both cases it is an obligation that must be fulfilled, and in both cases there is no punishment by the religious court. So what is the difference between the claim that this is a halakhic obligation and the claim that this is a meta-halakhic obligation? What is the meaning of this discussion? Does it have any practical consequence?
At first glance, the difference concerns our attitude toward cutting corners. If this is a halakhic obligation, there is no room for cutting corners, and the boundary of the law is the boundary of Jewish law. But if this is an obligation of proper conduct, there is room for cutting corners, at least of the sort accepted for a normative citizen. But in my opinion this is a mistake. In both cases cutting corners is possible. Even if there is a halakhic obligation, it applies only to criminal deviations beyond what is accepted for a reasonable person. Jewish law is pegged not to the formal law itself but to the degree of commitment to the law that is accepted for a reasonable person. Jewish law does not make the law sacred; it adds a halakhic layer atop the obligation imposed on every ordinary citizen (a gentile, or someone who is simply not bound by Jewish law).
My conclusion, as I understand it, is that this discussion has no significance at all. According to both conceptions there is a duty to obey, and there is no need to be meticulous about the formal boundary of the law.
Perhaps one can find significance in this discussion in the question whether, in order to comply with the law, a person would have to violate a prohibition. If this is a positive commandment, then a positive commandment overrides a prohibition (a positive commandment overrides a prohibition) would apply, but if obedience to the law is a non-halakhic duty then it would not override a prohibition. Even if obedience is not a commandment but violating the law is itself a prohibition, then we have one prohibition against another. But all this sounds detached, and it seems to me that no one would permit violating a prohibition in order to comply with the law. Does that mean there is no halakhic duty here? I leave that as an exercise for the reader…
[1] True, there I discuss this from the standpoint of the duty to protect life, and my conclusion is that there is no such halakhic duty. Here I discuss it from the angle of dina de-malkhuta, that is, the duty to obey state law regardless of the laws of protecting life. See also Rabbi Zalman Nechemia Goldberg’s response in the following issue and my response to him.
Following Rabbi Asher Weiss, Rabbi Brali naturally assumes in his article that violating traffic laws is certainly a halakhic prohibition, since the state is the one that determines the parameters of protecting life. But as I showed in the aforementioned article, this is a mistake (albeit a very common one). Moreover, I argued there that exceeding the speed limit to the extent customary among all normative citizens is halakhically permitted. Rabbi Zalman Nechemia Goldberg disagreed with this (though even about that I am not sure), but in my opinion for an entirely side reason and not an essential one (which I do not accept either). It seems to me that he accepted the essential reasoning of my remarks as well.
[2] See Rabbi Lior’s remarks as cited in his summary near note 41.
[3] This is entirely parallel to the distinction in my previous footnote regarding driving at an illegal speed, between the duty to protect life and the duty to obey state law.
[4] On the authority of the Talmud I elaborated in my article in Meisharim 1, on authority and autonomy in halakhic decision-making.
[5] It is not clear to me why he assumes that building regulations are not for the public welfare.
Discussion
1. I can answer that based on my own reasoning just like anyone else. It seems to me that there is some value in it, but one should not get carried away. It gives way in the face of a reasonable need.
2. Halakha, as a legal system, operates according to rigid rules. Common decency is a matter of discretion according to time and place. In the Shulchan Arukh, when it brings that one may compel conduct beyond the letter of the law (such as returning a lost object after the owner has despaired), it says this only לגבי a rich person and not לגבי a poor person. That is, moral obligations are a function of the person involved and of the circumstances. There is room for discretion.
3. That is a good example, but it seems to me that there is no doubt that this is not dina de-malkhuta dina. After all, dina de-malkhuta does not apply where it contradicts halakha. A prohibition on circumcision is a direct prohibition on a Torah commandment. A relevant clash could arise when the prohibition is general and reasonable, but incidentally it conflicts with a mitzvah. Like the clash between saving a life and Shabbat (where neither one, on its own, contradicts the other).
But I did not understand in your words which of the two sides of this equation is an obligation stemming from a right.
Society determined that a child has a right over his own body, such that his parents cannot inflict any kind of “mutilation” on him, even for religious reasons. By virtue of that right, the father has a duty to refrain from inflicting a “mutilation” on his son. Although now that I think about it, that right is nullified by the Holy One, blessed be He, by virtue of the commandment of circumcision itself.
Indeed, there is no right of the son here, since it was nullified by the Torah. Just like the right of a person who desecrated Shabbat or murdered someone over his own body, which the Torah nullified.
Many thanks for the reference to the article, and for the discussion and the ideas. I dealt with this recently in learning in yeshiva and in study groups (a learning program in Yeshivat Yeruham during the afternoon sessions). I am fond of the comparison to rabbinic laws, and it seems to me that in the way you went—that sometimes the Torah merely establishes a source of authority, but that source of authority then operates according to its own laws (as later authorities resolved the difficulty from the rule that in cases of doubt regarding rabbinic law we are lenient according to Maimonides’ view), and in the manner of the Meshekh Chokhmah, who there really compares the authority of the Sages to the authority of the king in this context. And so too with the law of the kingdom: the Torah established a source of authority—be a good citizen—but its operation is in accordance with its own world, with all the implications of that, and the intention is not that we should be halakhically tense about state law as we must be about Torah law (and not because of the arguments mentioned at the end of the article, from other articles—that for example it is permissible to employ a very young babysitter contrary to labor laws because the source of the laws is the consent of the people and the people did not accept this particular law, a line of reasoning that assumes that the consent is to each law separately, which is difficult; rather, the Torah only established a source of authority in general, but one conducts oneself vis-à-vis it as other citizens do, and dina de-malkhuta dina—with a hyphen. This is a somewhat difficult argument, but one has to say it.
One more note: the Ran’s words cited there, from whose plain meaning it emerges that it is permissible to evade a tax owed to gentiles, and that the law of the king is like that of a private person with respect to the rule that cancelling a gentile’s loan is permitted. The author notes that one might apparently infer from this that there is no duty of obedience to the king, and he argues otherwise and rejects that inference in light of the Rema’s words. But the Rema is difficult to reconcile with the Ran, as the Vilna Gaon noted there, disagreeing in his explanation of the Rema. And from these words of the Ran another approach emerges—that dina de-malkhuta dina only innovates that the king’s acts are legally valid, so that he can create a monetary obligation, but not a duty of obedience upon the individual; only the Torah can create duties of obedience upon the person. And this fits with his general approach that dina de-malkhuta is tied to the king’s ownership of the lands, for ownership does not seem able to create a duty upon the individual, but only recognition of the validity of acts. And in truth Maimonides disagrees with the Ran and holds that the rule of cancelling a gentile’s loan is irrelevant when the tax goes directly to the king (but only where a private gentile leased the tax, as the Mishneh La-Melekh explains there). And the root of the dispute is that according to Maimonides, the meaning of dina de-malkhuta dina is a duty to obey. And this is connected to the fact that according to Maimonides there is no essential difference between a Jewish kingdom and a gentile kingdom (as emerges from his words in two places, and likewise from the words of Radvaz and Mabit who derive dina de-malkhuta from the law of the king; and these matters are surely known, so I am not citing sources), whereas in a Jewish kingdom it emerges from Maimonides that there is a duty to obey.
And finally, this dispute may have an important implication for the fundamental question of how much the law of the kingdom should affect rabbinical courts when two Jews come before a rabbinical court. For it is difficult to understand how, from the conception that emerges from the Ran—namely, the validity of monetary acts—one can arrive at the view that the laws themselves have significance when two Jews come before a rabbinical court (as opposed to what emerges from the Rema in several places, that the law of the kingdom also has significance in this context, such as in the laws of collateral, in a private legal matter between two Jews, and likewise in the laws of returning lost property after despair of recovery and robbery after despair and change of possession; and it is well known how contemporary writers have gone on at length about this in deep and difficult discussions). And of course according to this one would have to explain the Gemara in Gittin 10b about deeds of gift between two Jews, and likewise the Gemara in Bava Batra about “the Persian sharecropping arrangement—forty years,” and I am unsure whether these sugyot can be explained in light of the conception of dina de-malkhuta as monetary recognition of the king’s acts, and say that here in essence it is an act of the king and not a law in the sense familiar today.
Hello Ayal.
All this is basically the dispute between the Rema and the Vilna Gaon about the Ran, and as I wrote, my view tends toward the Rema: even though he is more strained in language, he is more spacious in logic (and as is well known, it is preferable to force the language rather than the logic). It is hard to accept authority without an obligation to obey, and not even authority to create a monetary obligation. There is no debt without an obligation to repay it.
According to R. Shimon Shkop, all this does not arise at all, for according to his position it is clear that cancelling a gentile’s loan is halakhically permitted but not legally permitted. And so it is regarding dina de-malkhuta in general, even according to those who base it on ownership of the land.
I will only note that according to my approach on matters of first-order and second-order reasoning (which I hinted at at the beginning of my remarks), even if the Ran does say this I would rule against him, because his words do not make sense to me. And certainly if Maimonides disagrees with him, but even without that.
In my opinion, the strain here in the language is truly enormous, and the necessity of accepting the Vilna Gaon’s reading of the Ran is great. As for disagreement with the substance of his approach on grounds of first-order and second-order reasoning—I understand and identify with that. For me, what tipped the scale (not in the sense of “ruling,” since I do not issue rulings, but in the internal sense) were the sugyot from which it emerges that we adjudicate according to the law of the kingdom even in private disputes between one Jew and another (the resolution in Gittin, and according to the central approach among the Rishonim that the resolutions do not disagree, unlike how some explained Maimonides), for they show the contrary principled approach, which gives the law of the kingdom much broader significance than merely the validity of its acts. For on the plain level these are laws in private interpersonal matters and not acts; and certainly that is so in light of the very broad agreement among the decisors—that in principle the law of the kingdom also affects private disputes between one Jew and another (in collateral between two Jews, in the return of lost property and stolen goods, and so on and so forth, though they disagreed when the law of the kingdom contradicts Torah law). But in principle it is agreed that the law of the kingdom has influence on this plane as well, and in my humble opinion that is proof that it contains more than that mere legitimacy of monetary acts that emerges from the simple meaning of the Ran. And according to the Vilna Gaon—even if in logic there would be considerable room to limit the law to this plane of validity of acts and ability to impose taxes, public law, and one might have said that this applies specifically to taxes and matters touching the benefit of the kingdom and the public at large, and that there too there is a duty of obedience, as you wrote, and as in that approach among the Rishonim).
I think the strain is really not enormous, if one takes into account the words of R. Shimon Shkop. I explained that according to him one can interpret the permission to cancel a gentile’s loan as a halakhic permission, but the discussion concerns legal theory, which determines that if there is a debt then there is an obligation to repay it. And similarly regarding robbing a gentile, where he wrote that according to all views, if the gentile has ownership, then there is necessarily also a prohibition of theft toward him.
Beyond that, dina de-malkhuta is certainly no weaker than communal enactments, and there it is clear that such rules apply even in interpersonal matters (such as artisans in a professional guild binding one another to their standards). And the Rema already wrote about one who swore not to enter into violation of a communal enactment, and many similar cases. And of course the authority of Knesset legislation (and of the king) also derives from communal enactments (beyond dina de-malkhuta, even according to one who does not accept dina de-malkhuta).
The strain is linguistic and interpretive. First, when the Ran explains the Gemara’s difficulty with the Mishnah that permits one to vow in a problematic way, mentally restricting the meaning of the vow (I am being expansive in wording because of the readers of the comments), where the Gemara asks, “But dina de-malkhuta dina,” he writes: “But did not Samuel say, ‘The law of the kingdom is law’—so how can we permit such a vow in order to exempt him, since by law he is obligated to pay the tax?” And this implies that all that troubled the Gemara was how they permitted a problematic vow, a permission stated in a situation of escaping robbers and the like, whereas here there are no robbers, only a monetary obligation. But the Gemara was not troubled by the very attempt to evade the tax, for cancelling a gentile’s loan is permitted; and that indeed is how the Ran learns from Bava Kamma 113a. Moreover—and this is the main point—later he writes: “When we say that the law of the kingdom is law, that is only regarding the case where a person purchased this tax-farm (a Jew), in which case one must pay him the tax; and likewise if he did not purchase it but is merely appointed to collect the tax (for the gentile king), a fellow Jew may not swear that the goods are terumah, for there is no duress since the law of the kingdom is law.” And it is very precise from his words that only when a Jew bought the tax-farm is there an obligation to pay; but when the Jew is only appointed to collect on behalf of the gentile king, then there is only a prohibition to swear, but no obligation to pay. That is what emerges from the straightforward language, and there is no difficulty in saying that the Ran did not accept the Shkopian foundations of legal theory if that is what plainly emerges from his language.
As for your second claim: there is certainly a camp among our early authorities who argue that dina de-malkhuta applies only to acts of the king (confiscation of property for public need), and to taxes and matters connected to public law, “the king’s benefit,” and not to private law between one Jew and another; there is no place there for the law of the kingdom. And part of the reasoning of the Rishonim is that otherwise Torah law would be nullified, since royal law regulates the entire private sphere, and the result could be that we would in effect have to rule according to the law of the kingdom in all the laws of bailees, acquisitions, inheritance, and many other monetary laws. But no one ever said such a thing about communal enactments. So those same Rishonim certainly do not agree with your inference that dina de-malkhuta is no worse than communal enactments; in their view it is worse. And the logic is strong: the law of the kingdom is gentile law, and if we recognize it we risk collision with Torah law and its nullification. Therefore there was a need to limit its scope—to public law and acts, not private law between people. A problem of this sort should not have existed with communal enactments, because the community is religious (and requires the approval of an important person), so the enactments are supposed to apply only to new, particular situations that require an enactment, and they would not lead to uprooting Torah law and draining it of meaning.
And indeed today, on the fundamental question whether Knesset laws are considered communal enactments, beyond the discussions about an “important person” in our day (which can be somewhat strange, such as the reasoning about religious MKs who consult rabbis and the like), in my opinion the most important point is that today the community has changed and no longer takes Torah law into account, but legislates across all areas sweeping enactments. Therefore adopting them would lead to emptying Torah law of content, and there is deep opposition to that (rooted in the famous responsum of Rashba). To my understanding, this is the important and essential point against the claim that all Knesset laws count as communal enactments: halakha granted validity to a collective mechanism that was supposed to be inherently limited, on the assumption that the community is religious and will not simply legislate where there is no practical need and thereby nullify all Torah monetary law. But the golem can rise against its creator, and through this very tool we would end up abandoning Torah—and that is not what the poet meant when he granted enactments legal force. Therefore almost no one grants blanket recognition to the whole body of law as communal enactments, but only to certain laws that indeed arose against the background of a genuinely new practical issue and involve a real practical need (and not the entire body of the laws of bailees, damages, lost property, and acquisition in full).
A. That is the strain I was talking about. I only said that in light of R. Shimon Shkop one can say that his whole discussion (whether there is or is not an obligation to pay) is on the halakhic plane and not on the legal plane. But as I said, as a matter of halakhic ruling, in my humble opinion it does not really matter what the Ran meant.
B. That claim—whether there is or is not a concern—is not an argument about the matter itself but about apprehensions. The parameters of dina de-malkhuta are no different from the parameters of communal enactment, and on the face of it one is learned from the other. The same argument was made regarding communal enactments, when dealing with the laws of the State of Israel. As you can see, there is no difference except a circumstantial one (that usually with a king there is concern for conflict with Torah law, while in the community there is not. But that is a difference in concerns, not in essence).
C. And regarding the opposition to Knesset laws on the basis of this reasoning, much could be said, but this is not the place. But as noted, all this deals with concerns, not with essence.
Rabbi Michi, hello and blessings.
Many thanks. I read your clear remarks. It seems that regarding part of what you wrote there is a disagreement between us at the level of fundamentals, and on that there can be no bridge. I mean the reliance on the words of the decisors and the early authorities, which in your view is second-order ruling, whereas in my view this is the way of halakha, all of which rests on first-order reasoning, whose only garment is the second order, without the possibility of bypasses and shortcuts.
There are several comments that I think can indeed be debated:
A. There are precedents for obligations that do not entail a duty of obedience. For example, regarding the prohibition of causing damage, aside from R. Chaim, who derived it from the duty to pay, the Rishonim based it on the prohibition of theft and “love your fellow” and the like, and did not note that if there is a duty to pay then it follows that one may not damage. Likewise, according to the Levush, it is permissible to pour wastewater into the public domain (subject to halakhic limitations), and there is no need to guard the water, and nevertheless there is a duty to pay. Kovetz Shiurim seeks a source for the authority of the Sages according to Nahmanides, and in the end arrives at the will of God, and did not base itself on the equation you proposed.
B. Is legal theory part of the Torah of Moses in the full sense?
It is not clear to me whether R. Shimon means halakhic obligation, or whether it remains within the prior category of common decency that preceded the Torah. In any event, the Hatam Sofer certainly meant this—Responsa Hatam Sofer, Orah Hayyim part 1, sec. 208: “Presumably, even had the Torah not been given, and prior to the giving of the Torah, there were still laws and norms, and every king establishes the land through justice. Then the Torah was given and innovated: ‘These are the laws,’ and established rules such as that a thief pays double, an innocuous ox pays half damages, bailees thus and thus. But what the Torah did not mention, such as imperceptible damage, was certainly not permitted, Heaven forbid; ‘Its ways are ways of pleasantness.’ Rather, it is simply not included in Torah law, and the king and the Sanhedrin will determine according to place and time, and the Torah has no business with this.”
C. What practical difference does it make? I agree that the answer is flexibility—the example I gave is deviation from building regulations within a person’s private property in a way that has no public impact. Rabbi Grossman permits this, at least where this is the common practice. In my view, if there were in the matter an aspect of halakhic obligation to obey the law, this could not be permitted. I understood from your words that halakha also overlaps with the normative conduct of any citizen, and therefore according to you there is no practical difference here.
D. You did not address the Ran’s explicit words that one may cancel the debt of a gentile’s loan even though from the king’s perspective he instructs one to pay and has authority to do so. The Rema, relying on the Ran, ruled that this is not robbery, but wrote that it is forbidden to do so. And the Vilna Gaon there challenged him: if he is relying on the Ran, then it should be permitted.
E. Rabbi Shaul Yisraeli explained that Zimri’s permission was built on the fact that the zealot has discretion to strike, and likewise the blood avenger has discretion to kill the murderer; but if there had been a halakhic obligation—”you shall eradicate the evil from your midst,” through an agent of the court—then there would be no permission to harm him. And again, one need not reach the point that the individual himself is personally obligated to eradicate the evil.
Rabbi Ariel, greetings.
Thank you very much for your response and for agreeing to let these remarks be posted on the site.
As for the claims you raised, I will address them one by one:
A. Regarding the prohibition of causing damage, already in the She’iltot we find someone who sees the source of the prohibition in the duty to pay—look there carefully. But in any event, it seems to me that this is not a good example for our matter. Perhaps indeed there is no prohibition on causing damage, only a duty to pay. I am speaking about a situation in which there is halakhic authority to issue an instruction, but no obligation to obey it. The same applies to the Levush’s view about pouring wastewater into the public domain (and it seems to me that even in this matter he was preceded by the discussion of opening drains in Bava Kamma 6a).
It seems to me that the example I brought from “You shall not turn aside” is a better example, and there one sees as something simple that the authority granted to the Sages automatically means there is also an obligation to obey them. It can indeed be pushed off by saying that the language of the verse there is “You shall not turn aside”—that is, the verse itself addresses the citizen, not the Sages. But with “They shall keep My charge” one can no longer say that.
And the fact that Kovetz Shiurim finds the source of the authority of the Sages according to Nahmanides in the will of God also does not pertain to our issue in my humble opinion, for it is seeking a source both for their authority and for the duty to obey them (since according to Nahmanides, “You shall not turn aside” applies only to exegesis and interpretation of the Torah, not to enactments and decrees). Where have you seen in his words that he distinguishes between authority and a duty of obedience?
B. It is part of halakha. R. Shimon even proves its existence by arguing that without property law one cannot implement the prohibition of theft (for if it is not known what belongs to whom, how can the prohibition of theft be defined at all?). If so, the prohibition of theft, which is certainly a Torah commandment, presupposes legal theory. It follows from here that this is a halakhic obligation, no less than the obligation of the Noahides. A Jew is also a Noahide plus an additional layer (and one could engage in analysis in light of Rav Kook’s well-known words set out in Beit Yishai, vol. 2, in two places, but in my view that is not relevant here, for according to all views there is no case in which something is forbidden to a Noahide and permitted to a Jew).
It seems to me that even in the Hatam Sofer’s words there is no necessity that he is speaking about halakha. Perhaps he is speaking only about the Torah and its commands. The Torah has no business with them, but the court (when there is no king) determines them, and that binds halakhically. Again, we are not less than Noahides, of whom it is said that there is no matter forbidden to them that is permitted to us, and that is certainly a halakhic category. If for them this is halakhically binding, why would it not be for us?
C. Indeed. In your opinion, then, is this a halakhic obligation such that what binds is the law itself and not normative civic conduct? Why? We are speaking about a democratic king, not a monarchical one! For example, would conscientious objection—which is legitimate in democratic conceptions (even though it is legally forbidden)—be halakhically forbidden according to your view? That seems strange to me.
D. The Rema indeed wrote that it is forbidden, and so it seems to me as well. The words of the Vilna Gaon are very puzzling in my eyes. It seems to me there is no authority without an obligation to obey.
E. I also agree that this is the difference, but you do not explain why that difference exists (between discretion and obligation). I suggested the explanation that the individual himself is included within the communal obligation. It seems to me this is also correct logically, and it also explains the source of Maimonides’ words, who writes as something simple that there is also an obligation to obey. So what is wrong with this reasoning? The practical difference between us would be whether some private individual would have a halakhic obligation to kill so-and-so (not as a public agent); would the law of the pursuer apply here or not? At the moment it is hard for me to think of a specific example in which to apply this practical difference.
Rabbi Michi, hello.
A. If I understood your words, then necessarily the concept dina de-malkhuta dina contains within it a halakhic duty of obedience, and from there you went on to argue that there is no such creature as one who has halakhic authority to issue an instruction but one is not obligated to obey him.
In my view, the king has no halakhic authority at all, only the power to create monetary obligations toward him. This is the opinion of the Ran in Nedarim 27 that I mentioned, and it explicitly supports such a possibility. According to him there is no authority and therefore no halakhic duty to obey the king; but on the other hand every citizen knows that the king has the authority to punish him and seize property, and that is not robbery. From here comes the example I brought: you are not obligated to obey building regulations, but when a fine is imposed on you, it has halakhic validity.
In that sense dina de-malkhuta resembles the duty to pay damages. There is no prohibition on causing damage, yet there is still an obligation to pay.
(By the way, regarding the duty to obey the words of the Sages or the king, the Or Sameach argues that there is really no particularized obligation to obey an instruction of the Sages or of the king; one who transgresses their words is not seized for the act itself, but for undermining their general authority.)
B. As I understand it, when the Torah relies on an obligation of the Noahides and does not anchor it in an explicit command, that obligation is judged as common decency that preceded the Torah. It is a civic obligation without the aspect of “commanded and performing.” For example, there is no Torah source for a father’s duty to support his children, and Nahmanides wrote that the Torah took it for granted that this is a human obligation, only it did not anchor it in an explicit command (and therefore it specified the master’s obligation to support the children of his slave, because here one cannot rely on human conventions). This is certainly the intent of the Hatam Sofer when he wrote that certainly imperceptible damage is forbidden and “its ways are ways of pleasantness,” but the Torah has no business with it.
C. I agree with you that everything practiced within the framework of the democratic rules of the game affects halakha’s relation to it, because the public accepted the government on that basis. I mean cases where there is a gap between the official position and the actual implementation. And here, if the law had halakhic force, then in halakha there would be no room for leniencies.
D. One who comes to carry out a court ruling and stone a Sabbath desecrator—clearly no one has permission to prevent him from fulfilling the commandment, “you shall eradicate the evil from your midst.” In such a situation, the person is fulfilling an absolute command, and then he has immunity.
By contrast, when Pinhas decides on his own that he wants to act zealously and rely on the law that “zealots may strike him” with respect to one who has relations with an Aramean woman, Zimri answers him: since this is your own decision and you are not obligated to do it, then as far as I am concerned, “if someone comes to kill you, rise early and kill him first.”
Rabbi Ariel, hello.
A. 1. Even if the king has only the authority to create monetary obligations, then there is still an obligation to obey and to pay those obligations. 2. More than that: even in tort law, when we speak of the prohibition on causing damage, this has no connection to the tortious cause of action. Even if there is no halakhic prohibition at all against causing damage, or there is a prohibition under “love your fellow as yourself,” returning lost property, placing a stumbling block before the blind, and the like (not civil law but ritual law), it is still clear that there is a legal prohibition on causing damage (which is the other side of the obligation to guard one’s damages, at least as people generally guard. Are you claiming that there is no obligation to guard against damages or to distance hazards? In your opinion is there only an obligation to pay if one did not guard? And if someone killed a person by means of fire, according to the view that one’s fire is considered like one’s property, such that there is no prohibition of murder—are you claiming that the one who kindled the fire committed no prohibition, and there is only a duty of compensation? And even that, according to most opinions, does not apply, because there is no blood-money for a free person).
Though I have not checked it now, it seems to me that according to all views it is forbidden for a person (a prohibition under civil law, as above) to cause damage on condition that he will pay. This is a distinction in which many stumble, in my opinion. And perhaps this is also the intent of the She’iltot, which derives the prohibition from the obligation to pay (that is, perhaps it means a civil-law prohibition and not a ritual one. Otherwise it is difficult to understand what proof it sees from payment to prohibition).
(And regarding what you brought in the name of the Or Sameach—that there is no particularized obligation to obey the words of the Sages or the king, and one who transgresses is not seized for the act itself but for undermining their general authority—that is exactly my point. Before that I will only note that regarding rabbinic prohibitions, Netivot Ha-Mishpat, sec. 234, already preceded him, and of course some disagree with him on this. In any case, again this is proof for my words, not a contradiction to them. For this is exactly what I claimed: authority is bound up with an obligation to obey. What I am saying is that when the Sages determine that it is forbidden to eat poultry cooked in milk, it is clear that I am forbidden to eat poultry in milk; but it is equally clear that if so, the prohibition is to rebel against the authority of the Sages, not a status-prohibition on the poultry in milk itself. Such a status-prohibition does not necessarily follow from the authority. If so, this is exactly my point).
B. But I already asked: what about the principle that there is no matter forbidden to a Noahide that is permitted to a Jew? Is there anything that is a halakhic prohibition for Noahides while for us it is halakhically permitted?
C. On that I already wrote that I do not agree. Halakha anchors the democratic obligation. I asked whether conscientious objection (not because of a halakhic prohibition but because of a value that is very important to me personally) would be forbidden according to your view?
I repeat that I do not mean “leniencies in halakha,” as you wrote. I am claiming that this itself is the halakha (and not a leniency in halakha): what is forbidden is only what deviates from the conduct of a normative citizen.
D. Here too, our words have already been said.
Many thanks for clarifying your position.
A question to understand your view: does not the fact that according to the Ran it is permitted to cancel the debt owed to a gentile king indicate that a legal obligation does not necessarily rise to the level of prohibition? One could then define that the commandment to repay a debt exists only among Jews, whereas for a Noahide there is only a legal obligation. I call that a civic obligation at the Noahide level. Just as a gentile’s duty to repay a debt is not derived from the commandment of laws but is an intelligible legal obligation, so too for a Jew toward him.
But you yourself brought that the Rema and the Vilna Gaon disagreed about the meaning of the Ran, and as I wrote, my view tends toward the Rema. Incidentally, Noahides do have a commandment to repay debts as part of the commandment of laws. Cancelling a gentile’s loan is permitted for a Jew vis-à-vis a Noahide (and even that perhaps only after they abandoned their seven commandments—certainly if one follows the well-known Meiri regarding the ancient gentiles, and in fact this is explicit in Bava Kamma 38a: “He stood and released their property to Israel”), but not among Noahides themselves. This is indeed a legal obligation, but it is part of Noahide law. It is a halakhic obligation in every respect.
What you called an “intelligible legal obligation” is, in my opinion, precisely the commandment of laws.
I will only add that some have argued against me that R. Shimon did not intend in his legal theory to speak of halakhic prohibitions and obligations. Their claim is that legal theory consists only of definitions (who owns what and how ownership is acquired), while prohibitions are imposed only by the Torah’s command in “You shall not steal.” But this is not so. It is clear that R. Shimon means a genuine legal prohibition that precedes the Torah’s commands (though of course it is part of halakha, in the sense of “why do I need a verse? It is a matter of logic”). There are several proofs of this throughout Gate 5. For example, he writes that according to everyone, theft from a gentile is forbidden by Torah law as a legal prohibition, even if there is no halakhic prohibition from the Torah. It is also proven by the fact that at the beginning of the section he asks what the basis is for the obligation to obey the directives of legal theory without a command from the Torah. If this were only definitions, there would be no difficulty, for there is then nothing to obey other than the prohibition of “You shall not steal,” which is indeed written in the Torah. There are other proofs of this in his words.
In any case, one can see here that the pre-Torah obligation of legal theory is an inseparable part of halakha. Halakha contains commands and obligations that preceded the command itself. True, in the other parts of the Torah (the non-legal ones), without a command there is no punishment, but that is not our topic here. In fact, it is part of the commandment of laws, which is imposed also on Noahides.
And in truth one can see here that the question whether there is or is not a halakhic prohibition in such a case is somewhat devoid of meaning and significance, as I wrote regarding your article. There is a full-fledged obligation to do this, and the question whether it is halakhic or not has no practical difference (according to my view, that cutting corners is possible either way).
Very interesting.
I did not understand why there is no practical difference to the question of what yields to what, if obedience to the law is defined as a halakhic obligation.
After all, there are indeed sometimes clashes between the law and halakha, and then the question whether obedience to the law is a halakhic obligation or a meta-halakhic one is highly significant.
For example, the evacuation of settlements versus obedience to orders—according to my understanding, aside from the other issues, this question too is relevant.
No?
Thank you,
Hello Shifra.
When the law contradicts halakha, it is void whether or not there is a halakhic commandment to obey it. The commandment to obey it comes only after one has decided that it is valid; but when it contradicts halakha, it is not valid. This relates to the example at the end of my remarks about a law contrary to a negative commandment—whether we would see this as a positive commandment overriding a negative one.
Rabbi Bareli has repeated the law of secular courts as a halakha without a reason.
But that is not so.
Why was recourse to secular courts forbidden?
Here are Rashi’s words:
“In their courts—that is, before their judges, to have them sign; and even though this accords them importance, and there is concern lest they go and give thanks [to their gods]—even so, it is permitted.” (Rashi on Eruvin 47a)
And likewise:
“And one brings it up in their courts—to have it signed, even though this accords them importance.” (Rashi on Gittin 44a)
And likewise, in detail and emphatically, in his commentary on the first verse of Parashat Mishpatim:
“Before them—and not before gentiles; and even if you know concerning one law that they judge it according to the laws of Israel, do not bring it before their courts,
for one who brings the laws of Israel before gentiles desecrates the Name and honors the name of idolatry, giving it importance, as it is said (Deut. 32:31), ‘For their rock is not like our Rock, and our enemies are judges,’
when our enemies are judges, this testifies to the exaltation of what they fear.” (Rashi on Exodus, Parashat Mishpatim 21:1)
Since going to secular courts was forbidden משום exalting what they fear, several consequences follow:
There is no prohibition on going to the court of Noahides who accepted upon themselves the seven Noahide commandments properly, for there is no concern there of exalting what they fear;
after all, they believe in God and have accepted His divinity, and one may therefore be judged before them.
There is no prohibition on serving as a judge in secular courts, because that does not exalt what they fear.
For in principle this is no different from the verse,
“And if the means of a stranger or sojourner with you become sufficient, and your brother becomes impoverished beside him and sells himself to a stranger-sojourner with you, or to an offshoot of a stranger’s family” (Lev. 25:47).
As Rashi explained:
“The family of a stranger—this means a gentile. When it says ‘to an offshoot,’ this refers to one sold to idolatry itself, to serve it—not as a deity, but to chop wood and draw water.”
Nor do we find that someone sold to the offshoot of a stranger’s family is disqualified from testifying!!
Until the modern era, the source of the authority to judge was God, and therefore judges too are called elohim.
Therefore, to honor and respect the source of the judges’ authority is not proper, and hence recourse to them was forbidden.
The law of secular courts should have appeared in the laws of idolatry
(just as “Do not form factions”—that there should not be two courts in one city—does not appear in the laws of Sanhedrin but in the laws of idolatry).
The law of secular courts does not appear in the laws of idolatry because everyone sees that judgment is carried out by the judges and not by their source of authority.
So this is only a weak admission of the source of authority of secular-court judges (even though symbols of idolatry were in the courtroom).
The very permissions that were given to turn to secular courts are a clear sign of the weakness of the prohibition (since when is a real prohibition set aside because of monetary loss?)
In the modern era, the source of authority of the legislative and judicial system passed to the people through elected representatives in a democratic and egalitarian way.
This is a civic source of authority based on consent, and not on receiving authority from a divine source.
To be judged before a civic authority does not involve exalting what they fear, and therefore there is no prohibition of secular courts.
To understand the meaning of the civic authority of law, one must examine the law of the king.
Most of the kings of Israel and Judah were wicked, yet the authority of kingship was not taken from them, and they were even accorded royal honor.
“And so too Elijah accorded honor to kingship, as it is said: ‘And the hand of the Lord was upon Elijah, and he girded up his loins and ran before Ahab’ (I Kings 18:46).” Mekhilta de-Rabbi Yishmael, Bo, tractate Pisha 13, s.v. Vayikra le-Moshe.
The king judges outside the bounds of halakha even on a halakhic matter—see King David’s ruling in the case of the poor man’s ewe:
“And David’s anger was greatly kindled against the man, and he said to Nathan: ‘As the Lord lives, the man who did this deserves death'” (II Sam. 12).
The king judges according to the value scale of the people—again, see the poor man’s ewe:
“And he shall restore the ewe fourfold, because he did this thing and because he had no pity” (II Sam. 12).
There is no halakhic norm requiring pity (the root ח.מ.ל does not appear at all in the Shulchan Arukh).
David ruled according to the value scale of the people: any sensible person condemns the act and sees the perpetrator as deserving death.
Perhaps this is what Maimonides meant: “…The Torah was concerned with removing his heart from the right path, as it is said, ‘that his heart not turn aside,’ for his heart is the heart of the entire congregation of Israel…” Maimonides, Laws of Kings, ch. 3.
Anyone who disqualifies the courts on the grounds of secular courts must consider the source of authority of the halakhic courts.
Once the Sanhedrin went into exile from its place and ordination ceased, the sole source of authority of halakhic courts is the public, by its free choice.
The court does not judge by divine authorization but by the authority of the public.
On this matter see an article by Rabbi Yaakov Ariel, HaMa’ayan issue 218 p. 21 n. 19, with sources from Mishpat Kohen and Amud HaYemini.
Also see Shalom Albeck, Courts in the Talmudic Period, especially chapter 3, pp. 26–27.
There is clear proof that the public that agreed to choose the halakhic court also limits it according to its values.
There is no barrier to a halakhic court administering rabbinic lashes for transgressions where that is the law or where it decided that this is appropriate.
No religious or Haredi public would be willing to bend its back and absorb lashes, because this does not fit its value system (which is not necessarily halakhic).
Exactly as the public stripped the melamed or schoolteacher of the authority to whip unruly students, even though halakha permits or perhaps even encourages this.
No one is willing to allow any teacher, rebbe, or instructor to strike his children for the sake of education.
I do not know what kind of kippah Rabbi Bareli wears, but he too could easily find himself
assisting in permitting mamzerim, like that judge.
For proof of this, see Ha’amek Davar, introduction to the book of Genesis.
There is no room to blacken the face of the judicial system.
“Rabbi Hanina, deputy high priest, says: Pray for the welfare of the government, for were it not for fear of it, people would swallow one another alive.” Mishnah Avot 3.
And there is no government without law!
A good and blessed day.
With all due respect, this is a collection of astonishing statements, full of weak and tendentious interpretation. These are altogether old, battered claims, worn to the bone, and so I will suffice here with only a few remarks:
1. The word elohim in Scripture is not necessarily connected to divinity. It is a word that expresses authority, and therefore people with authority are called elohim in the Bible. See Rashi on Genesis 6:2 and many others. To derive from this the foundation of idolatry in the prohibition of “before them” is not worthy even of the title pilpul.
2. The prohibition of secular courts is presented by the writer as part of the laws of idolatry, and from this comes his own innovation that there is no prohibition in appearing before gentiles who are not idolaters (incidentally, there are gentiles who are not idolaters but are not resident aliens either; the writer ignores this). First, even here I wonder what happened to the courts in Syria. These are laymen who are not idolaters, and nevertheless when there are proper judges it is forbidden to appoint them and make use of them. Second, there is a problem that the writer himself raises: after all, this prohibition does not appear in the laws of idolatry. His flimsy answer is that going to them is not direct admission of idolatry, and therefore it does not appear in the laws of idolatry. For some reason, this explanation—which is hardly even worthy of being called an answer—is presented in his words as proof for his position. I stand astonished at this tendentious way of thinking. It does not appear in the laws of idolatry simply because it has nothing to do with the laws of idolatry. That is all. Sometimes the plain, simple meaning is also an option, no? And according to your approach, is “Do not form factions” (about two courts in one city) a more direct admission of idolatry? So why does it appear there? With all due respect, these are truly nonsensical pilpulim.
3. In a nutshell, I would say that the foundation of the prohibition of recourse to secular courts is the centrality of halakhic law. It is no accident that the Torah devotes a substantial portion to describing halakhic law, and that is not so that we should turn to foreign systems. This is no less than the rest of halakha, which one is obligated to observe. Therefore recourse to a foreign system is forbidden because it is a denial of halakhic commitment (something like this: someone who would base his dietary prohibitions or the laws of his day of rest on a foreign system of prohibitions—for example Islam or Hinduism—with no connection to idolatry). The idolatry element in this matter is indeed mentioned by some commentators, but it is clear that it is secondary. It is probably connected to the fact that in the past law was tied to religion and to God, and then in addition to the legal dimension there was also a problem of gravitating toward idolatry and exalting what they feared. Today, when that no longer exists, we are left with the legal prohibition itself. Were all the laws about appointing judges written for nothing? Was all of Hoshen Mishpat and Seder Nezikin written for nothing? Have contemporary writers labored over this issue to the utmost for nothing, only for the whole thing to be dismissed with a few quotations taken out of context?
4. As a practical halakhic matter, it is quite clear to me that nowadays the situation is different. Even in my humble opinion there is no prohibition on resorting to the secular system. But not because there is no prohibition—rather because there is no choice. And all this has not the slightest connection to the laws of idolatry, of course. There would be more to elaborate, but this is not the place.
In the Shulchan Arukh, when it says that one may compel conduct beyond the letter of the law (such as returning a lost object after despair), it says this only regarding a rich person and not a poor person. That is, moral obligations are a function of the person involved and of the circumstances. There is room for discretion.
—On this I would like to ask: what about the divine will? “And he shall restore the lost object to its owner”—the Torah does not distinguish here between poor and rich in the divine will.
The whole beauty is that even the poor person should not benefit from something that is not his, even if the owners have despaired, because that is the Creator’s will. And if a rich or poor person returns a lost object, this brings peace! And gratuitous love, which everyone will agree is what is lacking today.
The wise man said, “The fear of the Lord is the beginning of knowledge; wisdom and discipline fools despise”—that is my judgment in any case, and I would be glad if the rabbi would say whatever is on his mind! For good or for ill.
“No one would permit violating a negative commandment in order to keep the law. Does that mean there is no halakhic obligation here? I leave that as an exercise for the reader…”
—Regarding the exercise, if you give a specific example I can think about it concretely, and if you want I will give one of my own—but then I would be stealing it from you for this purpose: Abraham and his son—is he allowed to murder his son? That violates the law! Even a simple example can be a good answer! And the answer is clear—everything depends on the particular case.
The rabbi asked in note 5
[5] Why does he assume that building laws are not for the public good?—my answer, in my opinion: because the building requirement applies to the contractor, which is implemented from the building design by the planning engineer. But if the contractor is also the public, then it really is a public enactment—but he was speaking generally, where the contractor builds.
In section 1 the rabbi said: “I argued there that exceeding the speed limit at a level customary among all normative citizens is halakhically permitted. Rabbi Z. N. Goldberg disagreed with this (though even here I am not sure), but in my opinion for a completely side reason and not an essential one (and I do not accept that either). It seems to me that he accepted the essential reasoning in what I wrote as well.”
—If people take bags from the supermarket (before the ten-agorot bag law), in the way the normative person takes them—is that halakhically okay? Why?
One transgression leads to another, so what if here there is no danger to life in contrast to speeding, but… hold on. It is bad and dangerous!
Honorable rabbi, what about the fine that the offender will receive in the normative way? Isn’t it a shame for the money to go for nothing?
I already said what was on my mind in the article.
I am not looking for busywork or riddles. If you have a question, clarify it briefly and present clearly what you are asking.
What is your opinion:
from a halakhic perspective, is there permission to steal from the state, to lie to the state, to extract money from the state,
for example,
to lie to National Insurance,
to falsify kollel registration records,
and other forms of theft that are common among Haredim,
and likewise to lie to the bank so that they approve a mortgage, when you know that you have the ability to repay,
and there was likewise a discussion in kollel whether one follows the intent of the donors (who clearly would not have agreed to donate in such a manner) or the intent of the fundraiser, and if he agrees then it is permitted for the avrekhim to act this way; and likewise, if it is known that a certain kollel collected money unlawfully, is it permitted to be an avrekh in such a kollel (especially where that avrekh himself certainly does fit the donors’ intent)?
Are you asking seriously? I did not understand.
I thought (and still think) that you are familiar with the Haredi halakhic discourse on this matter,
especially since I saw that in column 132 you wrote that “our state (and perhaps any state) is not a Jewish entity… in this case it is not even a corporation but a public body; there is no defined owner here,” which very much resembles the “reasons” used to permit stealing from the state, because there is no owner here.?
I am somewhat familiar with the Haredi nonsense on this matter. So?
There is a very well-defined owner here, namely the public. Whether it is Jewish or not really makes no difference. Beyond the stupidity of the question, better reading comprehension of my words would not hurt either.
What is misleading in your words is the phrasing “there is no defined owner here,” because that is what those who permit theft use—they say, from whom did you steal? There is no owner here at all. Of course that is nonsense, because the public is the owner, and that is even more severe.
Still, your wording reminded me of their formulation.
Look at the context and you will see that this has nothing to do with that.
1. You wrote that someone who violated the law but acted as is customary for a reasonable, normative citizen violated only the law but not halakha. The question is whether there is a moral value in obeying the law, even where the reasonable citizen is not careful about it?
2. Likewise, you wrote: “If this is an obligation of common decency, there is room for cutting corners, at least in ways that are accepted by a normative citizen.” Why is there room for cutting corners דווקא in meta-halakhic obligations? And in general, why is there no room for cutting corners in halakha?
3. Regarding the exercise for the reader at the end, I thought of an example of a law that forbids a father from circumcising his son on health grounds. Ostensibly this is a reasonable law that even a democratic government could legislate without losing its moral validity (that is, without entering the category of “a tax collector who acts on his own authority”). Suppose, for the sake of argument, that the reasonable citizen does obey this law and refrains from circumcision. It seems to me that in such a case there would be a clash between two halakhic obligations: the father’s obligation to respect his son’s right not to suffer bodily harm, and the father’s obligation toward the Holy One, blessed be He, to circumcise his son. Since an obligation that stems from a right overrides an obligation that does not stem from a right, it seems to me that in this case the halakha would be that the father is forbidden to circumcise his son, and only when the child grows up will he be able to circumcise himself (because then he is deciding about himself and not his father about him). What do you think of this line of reasoning?