B"H
Every student of the Talmud comes across, at one time or another, the famous dictum that says: "Dina de-Malchutha Dina" דינא דמלכותא דינא

Which, translated, means: "The law of a Government is the law of the land."(Meaning, it has been sanctioned in Heaven.)

This statement is found in Gittin 10b, as also in Baba Bathra 113b.

My question is: Where do we draw the lines between following the secular rules of a State and those of the Torah, and what do we do when those laws occasionally stand in direct contradiction to what we've been taught by the Rabbis? Whose rule do we follow?

David

Every answer has to reflect the question, no?

There may not be a blanket-statement answer to this question, because as important as the question is- the halacha probably isnt as black and white as one might presume.

Do you have an example of a SPECIFIC law that stands in contrast to a specific edict issued by our Chochamim? Also, are you referring to laws imposed m'deoraisa, m'drabbonim, or both?

As an intellectual question its great to speculate on what possible answers might be, but as for a halachic ruling on how to handle such things- specifics should be consulted with a rav.

I assume your posting David, was simply in intellectual curiousity?

There are three concepts to consider.
1. There are Torah laws and traditions
2. There are Noachide laws and traditions
3. There are Goyish laws laws and traditions

For a Jew, Torah is always prime. Only when the governing laws are in conflict with Torah and there are significant untoward consequences associated with that do we acquiesce to "Laws of the Land".

We know Torah and Noachide laws and traditions, but what about Goyish laws and traditions? Many of them may be steeped in avoda zara etc. Some societies will allow "justifiable homicide". I remember one time, when I was a kid, in Rhodesia (now Zimbabwe)during the late 1970s, a man found his wife in bed with another man and split this man's head with a hatchet ax. They left the hatchet in his head and buried his body that way. The murderer was never arrested, it never went to trial, because the community felt it was justified.

Then you have lynchings that happened in the US south during the 1960s, where communities condoned murder. Today, in Thailand some communities find it perfectly acceptable to send their girls for prostitution to Bangkok. They actually sell or lease their daughters.

So a Jew certainly does not have to accept the laws of the land. "Civilized" societies of today have all borrowed from Torah. All the republics and democracies of the world have borrowed from Torah. They may have perverted it but HaShem dispersed Jews into the galut so they would help the Goyim establish the rule of law after Torah principles. What's remarkable is that the world has achieved it in spite of the Jew. We've been persecuted so much we have cowered into our yeshivot, professional and real estate businesses. But we are supposed to be teaching the Goyim the Noachide system of law which is based on Torah.

All the sages of the Talmud wrote from a Jewish paradigm and a cohesive tradition for interacting with Goyim got lost. There was a time when Goyim could come to a Jewish rabbi for posek, a time when Goyim would bring corbanot to the Beit HaMikdash. There was the court for Goyim there. The newly created Beit Din HaGadol is trying to remedy that.

The Noachide system is only getting revived now, so when a Jew is having to choose between the "Laws of the Land" and Torah, he is dealing with Goyish law not Noachide law. In the US, Goyish laws reflect Noachide law for the most part. President Reagan declared the US a Noachide nation, but that meant very little halachially.
Nevertheless, conflicts between Torah and Goyish law in Western societies are relatively rare. Conflicts between Jews who want to take each other to a Goyish court are more common.

N.B. For those who care, I don't consider the word Goy to be perjorative and consider it to be descriptive in the same way Israel is a goy kadosh.

B"H
Bracha,

You are absolutely right that I should have been more specific in my question.

Just "off-hand," I can think of many examples where the law of the State infringes upon a law, or freedom, found in the most esteemed book of the Law of Moses (our Torah). For example: The Israeli Penal Code book states that a prison sentence not to exceed five years would be the punishment of a man who had given away his "under-aged" daughter in marriage, although this practice is permitted in the Torah (being the prerogative of the father), and was in fact common amongst Jews in Yemen; or a man who takes in Israel two wives (i.e. engages in polygamy), although the practice was common among some Sephardic communities who did not accept Rabbeinu Gershom's edict, and which practice has always had the full sanction of the Torah itself.

But what to me seems to be even more striking than this is what I have seen stated in the Israeli Penal Code book that a maximum prison sentence not to exceed one-year is to be the punishment of a man caught writing Mezuzoth ("doorpost scripts") without having them checked and approved by the local Council of the Rabbanate (Mo'etzet Rabbanuth). In all places, Jewish men have written "doorpost scripts" and have had them checked for errors by local Rabbis. Never once has it been required to go to a specific authority to have these scripts checked. Besides, even today, very few scribes follow this rule of etiquette, while the State willfully overlooks this "breach of faith."
The same can be said about a Mohel, who are forbidden by the State to engage in this practice until they have obtained a license from the Ministry of Health, showing that they are skilled and qualified in the procedures of circumcision. So, if a father in Israel who wants to circumcise his son, yet fails to obtain the required license and thereby infringes upon the law imposed by the State, has he done wrong from the standpoint of the Torah? Only a few depraved laws are needed to put the ordinary class of good citizens into the same category as those of thieves and brigands. For if you make a law outlawing the selling of Mezuzoth until they have been checked by a certain authority, it makes a scribe a deliquent for hanging a Mezuzah in his own house without the other's consent! Laws are then easily broken, and one becomes party to offenders.

Sincerely,
David Ben-Abraham

David,
"Laws of the Land" in a state of Israel which is not a halachic state are a different challenge altogether. Many gedolim have different opinions. I'm of the view that everything is basically in the air until the state of Israel is halachic. The examples you give are good ones. Usually, the laws infringed are not enforced until someone in the community reports the perpetrator. A father circumsizing his son even without license will get into trouble only if someone reports him.
Is your question whether the father who circumsizes his son, although his performance of this mitzvah contradicts the law of the land, infringes anything in the judgment of heaven?

without question it is accpeted practice from the Torah that one can marry of their under age daughter, have more then one with wife (though even the rabbis of the talmud didn't thinks to ideal).

however these matters are not matters of Mitzvot but rather custom and desire. for of the 613 mitzvot there is not a single one which requires us to marry off our under age daughter and so on. but what it does require of us is to put on Tefflin thus because this is a requirement we are to fulfill as we see in Tracate Berchot:

the bird rabbi refuse to accpet the edict that he couldn't don tefflin so he did so when he was reported as they approch he turn his tefflin into a bird.

as for the other two matters such certifcation within limits should be require least every person does what is right within their eyes. and not fulfill the Halkalahic requirements.
nevermind the safety issue dealing with other lives.

as much what sense does it make to marry an under age girl anyways if i recall correctly when she become of age she can refuse. and if she doesn't refuse then would it be nesscary to do it before she become of age.

Even in the US an underage daughter can be married off with parental consent. This is not allowed in Eretz Yisrael?

Quote "without question it is accepted practice from the Torah that one can marry of their under age daughter, have more then one with wife (though even the rabbis of the Talmud didn't thinks to ideal).

however these matters are not matters of Mitzvot but rather custom and desire"

Though it's true that someone shouldn't Mikadesh his under age daughter, as the Gemarah in Kiddushin says, until she grows up and says that she wants a certain person (unless, as the Poskim points out, that it's a point in Golus where times are hard, and if you don't marry her off now when you have the ability, maybe later she won't have the ability to get married, then it's permitted.) But it says that it's preferable to marry them off "close to their puberty." Whether this is practical nowadays to most people would be in question, yet if it would be practical, then I would say it's preferable still.

Quote "Tracate Berchot:

the bird rabbi refuse to accept the edict that he couldn't don tefflin so he did so when he was reported as they approach he turn his tefflin into a bird."
This is in Shabbos, 49a and 130a


Quote "as much what sense does it make to marry an under age girl anyway if i recall correctly when she become of age she can refuse."

This is only if she was an orphan from her father and her mother or brother married her off. Since it's only Midarabanan, she can refuse (Miyun.) But a fathers Kiddushin is Doraisah and can only be terminated with a Get.

The whole DIna Dimalchusa Dina would seem more as a monetary obligation. That it obligates you to pay taxes and transactions that are not binding from the Torah is binding from Dina D'malchusa. Furthermore, money that were confiscated by the Gov. according to their laws are not considered stolen property.

There's a Ran in Nedarim that implies that Dina D'malchusa doesn't apply to Israel, since it belongs to each Jew individual and not any Gov. Other lands belong to the Gov, so complying to their monetary laws is the "rent" to stay on their land.

quote:

Originally posted by Mack K:
"...as such, what sense does it make to marry an under-aged girl anyway? If I recall correctly, when she becomes of age she can refuse. And if she doesn't refuse, then would it be necessary to do it before she becomes of age."

Mack,

As Rav Chaim correctly pointed out, the only time an under-aged girl can refuse her marriage with a man is when her mother or brother gave her away in wedlock while she was under the age of twelve. But if her father had given her away in marrige, even while she was under-aged, this holds up as good, and she would require a divorce certificate (Heb. "get") before she could be released from him.

By the way, in Yemen where the practice was common, fathers would not force a marriage upon their daughters. Usually, a Jewish father would ask his daughter if she wanted to be married to such a person who has asked for her hand in marriage. If his daughter remained silent (a sign of bashfulness), it was generally understood by this that she agreed to be given over to him in marriage, and her father would accept of the dowry paid unto him. But if she cried (a sign of her not wanting to be married to the man), her father would not consummate the marriage - no matter how high the dowry. In short, the girl decides if she wants to be married or not to the young man who asks for her hand. (In this way, usually there were not "imperfect matches.")

Moreover, the act of wedding young Jewish girls at the age of ten, or slightly younger, was done almost exclusively in the case of their being orphans, and to therefore save them from the clutches of Islam, for Islamic law in Yemen ordered the mandatory conversion of all Jewish orphans who were then unwedded at the time of their parents' death. The elders and Rabbis of Yemen consulted together in order to save these children from such a fate so that they might retain their Jewish identity. Thus, it was a measure of expediency. Although in some cases, young girls were given over in marriage to older men, this was not the norm. Most Jewish girls were married to young men who were close to their own ages. Even so, a child who was married usually remained in the home of her parents (or relations) until she became of child-bearing age, and only then was she allowed to move-in with her husband.

Sincerely,
David Ben-Abraham

quote:

Originally posted by MosheYisraeli:
Even in the US an underage daughter can be married off with parental consent. This is not allowed in Eretz Yisrael?

Moshe,

Here, in Israel, parental consent is needed when the girl is aged seventeen and desires to be married. The law, indeed, accommodates for this. It also accommodates for exceptional cases where the girl is slightly younger, and has become pregnant. The State, in such cases, will allow her to marry the father of the child. But it will not tolerate the marriage of small children, such as which were common in Yemen.

Sincerely,
David

B"H

Rav Chaim has written: "Furthermore, money that were confiscated by the Gov. according to their laws are not considered stolen property."

Indeed, I recall reading somewhere (I think it was in Baba Metzia) where the Persian government of the time had made a law that all money found by a citizen of that State becomes the property of the Government. I certain Rabbi had found lost money where its owners had definitey despaired of ever retrieving it. The same Rabbi knew the teaching in the Torah that said that he who finds such money becomes the lawful owner. So, in total reliance on that teaching, he refused to relinquish the money he found, and did not give it to the Government.

This is a good example, in my estimation, where a law can be "side-swept" when it stands in direct contradiction to the Torah. But then again, one should do this when he knows he will not be caught by law enforcers.

Can we do the same when writing "doorpost scripts," or when circumcising a baby without a license? Or would it be best in these cases to comply with the law, under the rule דינא דמלכותא דינא

Rav Chaim reasoned that the "Law of the Land" applies primarily to government taxes, levies and imposts, etc. When one looks at the examples of "Law of the Land" brought down in the Talmud, we also find the phrase used in reference to deeds, records and invoices laid up in courts of law belongibg to the gentiles (Gittin 10b) - that such records can be relied upon as being authentic. We also find the phrase, "Law of the Land" used in reference to a Government pulling down trees from another's property in order to build bridges, &c.

In these matters, there is no real conflict between our law and theirs. But what do we do when there is a clear conflict?

Sincerely,
David

B"H
By the way:

Those interested in seeing the Israeli law concerning the writers of Tefillin and Mezuzoth, he may find the law written under the following:

החוק למניעת הונאה בתפילין ובמזוזות, שנת תשל"ה - 1974

החוק קובע שמי שמכר תפילין ומזוזות אשר לא אושרו ע"י הרבנות הראשית או רבנות מקומית צפוי לעונש של שנת מאסר אחת. לפי אותו חוק גם מזוזה כשרה לפי ההלכה, שנכתבה ביד סופר סת"ם ירא שמים ושומר מצות אינה כשרה לפי החוק הפלילי כל עוד שלא אושרה ע"י המועצה הדתית (אגב שכבר לא קיים) או הרבנות הראשית.

Sincerely,
David

David,

A couple of questions were implied but never asked. I would like to reiterate them in a different way.
1. When you say "Law of the Land" do you mean in the current medina Israel or do you mean in the galut, because it makes a difference. Out of lack of better terms, do you mean the conflict between "secular law" and Torah in Eretz Yisrael and the same in the galut?

2. When you say what are we supposed to do if there is a conflict, do you mean out of fear of heaven or out of fear of the government. Again this makes a difference. Are you concerned about the consequences to you and your community from the govt or are you concerned about your soul?

I'm sure you can appreciate the implications of the answers to these questions. And indeed the we have suffered untold progroms as a result of our response to these questions through the ages. In fact, all our wars, exiles and progroms have been the direct or indirect result of our response to this question.

quote:

Originally posted by MosheYisraeli:
1. When you say "Law of the Land" do you mean in the current medina Israel or do you mean in the galut, because it makes a difference. Out of lack of better terms, do you mean the conflict between "secular law" and Torah in Eretz Yisrael and the same in the galut?

2. When you say "what are we supposed to do if there is a conflict," do you mean out of fear of heaven or out of fear of the government. Again this makes a difference. Are you concerned about the consequences to you and your community from the govt. or are you concerned about your soul?

Moshe,

In answer to your first question, I meant both. That is, whether we find conflict between secular laws and the Torah here, in the State of Israel, or whether we find conflict between goyish laws in the diaspora and our Torah. What are we, as Jews, supposed to do?

In answer to your second question, I wasn't thinking so much about Government reprisals (imprisonment, fines, etc.) as I was about the act itself. How does G-d view the act when we purposely ignore a law of the magistrates? Have we done wrong in the eyes of heaven?

Sincerely,
David

Quote "Indeed, I recall reading somewhere (I think it was in Baba Metzia) where the Persian government of the time had made a law that all money found by a citizen of that State becomes the property of the Government. I certain Rabbi had found lost money where its owners had definitey despaired of ever retrieving it. The same Rabbi knew the teaching in the Torah that said that he who finds such money becomes the lawful owner. So, in total reliance on that teaching, he refused to relinquish the money he found, and did not give it to the Government."
That could be for other reasons. First, though now it would legally belong to the Gov, it would be Aviedas Akum or Hafkaos Halvaos where there is no obligation to return it.

1. The laws about writing mezuzah and what constitutes kosher food are consumer protection laws. Presumably if the person purchasing these items and had the wrong impression as to their validity, it would be a mekach taut (an invalid transaction). No one is stopping someone preparing food in his house and telling guests it is kosher.
2. The laws concerning Mohel is a health regulation. Every year we have unlicenced mohelim giving hepatitis to babies. They are not punished if they agree to stop.
3. The laws of the State of Israel have more impact than simple Dina dMalchut Dina since they are imposed by the community itself. The major exception to Dina Dmalchut Dina, that the taxes are being collected for the warlords personal gain or a device to destroy the Jewish community are not pertinant.

Aryeh Shore

quote:

Originally posted by MosheYisraeli:
David,

... 1. When you say "Law of the Land" do you mean in the current medina Israel or do you mean in the galut, because it makes a difference...

Even Israel is galus now.

quote:

Originally posted by laurence shore:
1. The laws about writing mezuzah...are consumer protection laws. Presumably if the person purchasing these items and had the wrong impression as to their validity, it would be a mekach taut (an invalid transaction).

I want to assure you, Aryeh, that the vast majority of scribes do not have their mezuzoth and tefillin checked by the Council of the Rabbinate. When I even asked a well-known religious personage about the standing law of the State regarding this, he said that it was nothing but "nonesense!"

Sincerely,
David Ben-Abraham

quote:

No one is stopping someone preparing food in his house and telling guests it is kosher.

I understand that our halachos may even requires us to believe such testimony in such a case even if the household is not known to be kosher witnesses to a Beis Din?

Speaking of which I believe that we have well established rules for when someone's testimony about kashrus in other than their own home can be relied upon -- that they must be believed to be a Shomer Shabbos person (whether they actually are or not does not seem to be the test!) by their community.

And I was taught this is derived from the rules for who is a trustworthy witness to Beis Din.

And one practical ramification of this is if served a prepackaged food with a hechsher that is not within one's community standard, that one can ask someone at the supervising organization about this particular item whether they believe it is suitable for a Jew's consumption.

Their testimony thus has weight which their kashrus certification symbol alone does not have.

[QUOTE]What's remarkable is that the world has achieved it in spite of the Jew. We've been persecuted so much we have cowered into our yeshivot, professional and real estate businesses. But we are supposed to be teaching the Goyim the Noachide system of law which is based on Torah. ---"

Which is why I am so often at odds (in a nice way) with some of my fellow congregationalists because I tend to speak out when someone makes an anti-semitic comment, or to TEACH them the truth when they insult my or my religion, because prejudiced comments and jokes are usually grown from false or confused beliefs about another group. Most of my fellow jews want me to be quiet, or to hide, or to get huffy and insulted. TEACH, TEACH, TEACH, TEACH, TEACH, TEACH, TEACH! GIVE A LAW UNTO THE 'HEATHEN'(used very loosely here, I know that all the others aren't heathens) AND YOU SHALL HAVE PEACE.

Kudos to you Moishe!!!! Thank you for voicing something that is a big subject with me right now. Todah Rabba!!!