Our last post discussed the troubling fact that the leading Orthodox poskim (halakhic authorities) define the law and legal system of the State of Israel as “foreign” or “Gentile law” (ערכאותיהם של גויים). To say that halakhah does not recognize the legitimacy of Israel’s law  is to signal to observant Jewish citizens of the state that they may be entitled to violate that law.  It is also to suggest that the state itself, which expresses its national identity and conducts its public life by means of its law, is a “Gentile” creation, neither truly “Jewish” nor totally legitimate in the eyes of the Torah. It is an embarrassment to the Zionist idea, an insult to all who would like to believe that there is no essential contradiction between the establishment of a modern, democratic Jewish state and the precepts of traditional Jewish religion.

It is also wrong. We argue that the halakhah does recognize the law of the State of Israel as valid and binding upon Jewish citizens of the state. Our view is based upon the principle dina d’malkhuta dina, “the law of the state is valid law.”[1] Many people are familiar with this principle as the halakhic basis for the requirement that Jews who reside in a particular state must abide by that country’s laws. But dina d’malkhuta dina goes farther than that: it also means that halakhah recognizes those laws as legitimate, as real law (dina); as such, they are as valid and binding upon Jews as are the  provisions of the halakhah itself.[2] There’s a wide-ranging discussion among the medieval authorities (ראשונים, rishonim) as to the origin of this principle.[3] Some of their theories (e.g., the king has a God-given right to legislate in his realm; the land is the personal property of the king, and we dwell there on condition that we accept his laws) are simply non-starters for us. But one view, that of Rashbam,[4] holds that the law of the state is valid because “all those who dwell in the state willingly accept the king’s laws and statutes.” Rashbam’s theory, which is similar to that of Maimonides (Rambam),[5] evokes the medieval idea that the power of the ruler emanates from the people.[6] It also coheres with our own democratic theory of government: we, the citizens of the state, have willingly contracted together to form a government (malkhuta) and to abide by its laws. This theory of dina d’malkhuta dina is persuasive to us, in other words, because it corresponds to the way that we experience political life in our democratic societies today.

More than that: according to this understanding of dina d’malkhuta dina, there is no such thing as “foreign law” (to say nothing of Gentile law) In a democracy. Since we as citizens elect the legislature, the law it enacts is our law and not the imposition of an alien power. This is plainly true in the Diaspora, where the law of the state is binding upon us – even according to halakhah – precisely because those of us who are citizens of democratic regimes create the government which, in enacting and enforcing the law, acts as our agent. But it is also true in the land[7] and state of Israel, where the citizens elect the Knesset and, through the Knesset, empower the courts. The laws made and interpreted by these governmental entities (i.e., the malkhuta) are the people’s law and, by virtue of the doctrine dina d’malkhuta dina, they are binding upon the citizens according to the halakhah itself.

Bottom line: whatever is meant by the term “Gentile courts” or “foreign legal system” (ערכאותיהם של גויים), that designation simply does not fit a modern democratic political situation such as that which prevails in the State of Israel. The law of the Jewish state may not be identical with the halakhah, but in the eyes of the halakhah itself that law is our law – Jewish law – and in no way “foreign” or “Gentile.” The question, of course, is why the poskim don’t seem to recognize this rather obvious fact? But that’s a subject for our next post.

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[1] דינא דמלכותא דינא, B. Nedarim 28a, B. Gitin 10b, and parallels.

[2] These laws correspond primarily to what our tradition calls dinei mamonot, “monetary,” civil or criminal law: the laws of torts, obligations, property, taxation, the establishment of courts, and so forth. It is for this reason that the principle dina d’malkhuta dina does not apply to the realm of “ritual” law (isura). Thus, Jewish law accepts the government’s power to levy taxes, to confiscate property by way of eminent domain, to regulate matters of child custody and the like. But Jewish law does not recognize as legitimate any attempt by the government to intervene into the ritual life of Jews.

[3] You can find a more extensive discussion of the different theories in CCAR responsum no. 5757.1 (here, behind the CCAR membership wall, here or here if you want to buy the book.) So buy the book already. You’ll be glad you did!

[4] R. Shmuel ben Meir, 12th-century France, a grandson of Rashi and one of the early Tosafists, in his commentary to Bava Batra 54b, s.v. והאמר שמואל דינא דמלכותא דינא.

[5]  See Mishneh Torah, G’zeilah 5:17-18.

[6] The political theorist Walter Ullman traced two contrasting theories of government in the Middle Ages: the “ascending” theory (power flows from the people to the rulers) and the “descending” theory (all power originates with the rulers); A History of Political Thought (Baltimore: Penguin, 1965), pp. 12-13.

[7] There is, to be sure, an old debate as to whether the principle dina d’malkhuta dina applies in Eretz Yisrael.  But that’s because those who say it does not apply believe that the principle is based upon the king’s personal ownership of the land and his right to expel those who do not accept his authority, powers that the king of Israel does not enjoy. If, however, we take the view that dina d’malkhuta dina is based upon the people’s acceptance of the state – a view essential to any democratic regime – then the principle applies just as well in the land of Israel as it does anywhere else.  For an extended argument (in Hebrew), see R. Yaakov Ariel