Q&A: If the law of the land is the law, but the state does not actually enforce the law
If the law of the land is the law, but the state does not actually enforce the law
Question
Hello Honorable Rabbi,
I would like to ask your opinion regarding the halakhic aspects of the concept of “the law of the land is the law” in situations where the state does not actually enforce the law. I am interested in studying the issue in depth through examples, and I would appreciate your insights.
Here are a few examples:
- Paying a babysitter without reporting it – As I understand it, this is permitted, because my impression is that the state does not view this as a tax matter worth pursuing.
- Buying the Four Species without a receipt – I have never encountered merchants in this field who ask whether you want a receipt, and if this is forbidden, it would seem that a significant portion of the market would become problematic in terms of “a commandment that comes through a transgression.”
- A flower stand on the side of the road – Here I am more uncertain. This is an illegal business, but where I live there are many such stands, and I am not aware of the police enforcing the prohibition.
- Copyright – If someone sent photos on WhatsApp from the reserve battalion group, pictures from the last deployment, it seems that whoever sent the pictures has no problem with them being passed on, because otherwise why did he send them?
It is clear to me that commercial use of the pictures would be forbidden, but my feeling is, and this is also the common practice among us, that of course one can pass them on to family members and friends.
But in my opinion, from the standpoint of the letter of the law, there is a problem with forwarding the pictures to others, because the photographer owns the rights.
I understand that the issue is not clear-cut, but I would be glad to hear your opinion and your interpretation of the halakhic boundary in such cases.
Answer
One could discuss each of these examples legally on its own terms (especially the fourth; in my opinion there is no legal problem at all with forwarding the pictures). But that is not the issue.
I have written more than once that in my opinion, “the law of the land is the law” is determined not by the written statute but by the way a normative citizen behaves (see, for example, my article “Jewish Law and Reality – What Is Halakhic Expertise”). The fanatics who treat “the law of the land is the law” as though this were a formal halakhah that must be expounded and adhered to down to the tiniest detail are thinking childishly. The intention is to behave as a normative citizen behaves. So too regarding insulting public officials and elected representatives, who do not have the status of a king as in Jewish law, since this is a democratic government and not a monarchy. The same applies to driving speed on the road and the like.
Discussion on Answer
You are mixing up morality and Jewish law. One should not do something immoral regardless of “the law of the land is the law.”
As for the law, I am not a jurist (though one should distinguish between a moral right and a property right, but this is not the place). I just saw there that there is a fair-use claim if it is not for commercial purposes.
But I already answered the question. I did not understand what else you are asking.
The Rabbi’s answer is not so clear to me.
The Rabbi argued that there is such a thing as a normative person; in the previous paragraph I showed that “normative” is a relative thing, and so too morality.
One person thinks paying a repairman under the table is moral, another thinks paying a babysitter under the table is moral,
a third thinks all three are immoral.
The law says that both are illegal; Jewish law gives force to the law through “the law of the land is the law,”
and there is also the standard of what a reasonable person would do.
So I wanted a fuller explanation of how these fit together properly.
As for the pictures, to the best of my understanding, most legal experts I have read online say that the rights to the pictures belong to the photographer, and putting them on your Facebook is not fair use; see the link I attached in the previous comment.
The fact that there are concepts that are subject to interpretation and different assessments is known and obvious. So do you expect me to settle them? And if I tell you what I think, what difference would that make? After all, other people’s opinions differ from mine. I can state the basic claim that it depends on the reasonable person (the legal system also uses this vague concept), and that is all. Has any judge or jurist ever given criteria for what, in his opinion, counts as a reasonable person?
In general, I would put it this way: if as a reasonable secular citizen you would do it, then “the law of the land is the law” is not supposed to prevent you from doing it.
But at the end of the day, you decide what you think is reasonable and what is not. By the way, this is not about morality but about obeying the law. In morality proper there is no criterion of a reasonable person.
I find the definition of a normative person difficult.
Most upright people I know have no problem watching movies via streaming,
but the Rabbi argues that this is forbidden.
https://mikyab.net/%D7%A9%D7%95%D7%AA/%D7%94%D7%95%D7%A8%D7%93%D7%AA-%D7%A9%D7%99%D7%A8%D7%99%D7%9D-%D7%9E%D7%98%D7%9C%D7%92%D7%A8%D7%9D/
The issue of off-the-books payment raises many questions. I know of entire sectors in which completely normative people ask for a discount in exchange for paying under the table, and in my opinion that counts as theft. At the same time, there are exceptional cases, like paying a babysitter, paying children for building a sukkah, and perhaps also buying the Four Species, where it seems that the state does not enforce it, and therefore in my opinion they would be halakhically permitted.
“Normative” is a very broad concept, but on the other hand I agree with the Rabbi that if we start focusing on every tiny detail, there is no end to it, and one has to act with common sense.
So this unclear concept is difficult for me.
As for pictures, from what I know this would be forbidden, and the lawyer in the following article explains that the person who took the pictures has full copyright over them.
https://www.asf-law.com/copyrightfacebook.html
But forwarding pictures among friends in WhatsApp groups is such a widespread phenomenon that if a case like this ever reached court, in my non-legal understanding, there is a good chance the judge would dismiss the claim, because otherwise almost all of us would find ourselves guilty. On the other hand, it is certainly possible that such a case would not end that way, and there is no way to know for sure until a similar case is tested in court.
According to the letter of the law, this is an offense. So I am interested in knowing how Jewish law deals with such a question: can one permit forwarding the pictures under certain circumstances, or must one be especially cautious here too?