Read an Excerpt
Separation of Church and State
Dina de-Malkhuta Dina in Jewish Law, 1750â"1848
By Gil Graff The University of Alabama Press
Copyright © 1985 The University of Alabama Press
All rights reserved.
ISBN: 978-0-8173-8684-9
CHAPTER 1
From Talmudic Times to the Eighteenth Century
There are but four references to the dictum dina de-malkhuta dina in the Talmud. The discussions in which the principle is mentioned affirm the ruler's authority to collect customs, appropriate palm trees for the construction of bridges, require written deeds of sale to effectuate land transfers, confiscate and sell land for failure to pay the land tax, and ordain that forty years' unchallenged occupancy of land will establish an impregnable claim of ownership. Samuel's statement is also brought in his name to afford legal recognition to bills executed by non-Jewish courts, with the specific exclusion of divorce and manumission.
The authority of the sovereign to collect taxes continued to be a major focus in the application of dina de-malkhuta dina when Persian rule gave way to Islamic control. As a result of the Arab conquests of the seventh century, 90 percent of the world Jewish population lived within a single empire. The exilarch, who functioned as the political head of the Jewish community, was recognized as an officer of the caliph. The responsa of the Gaonic period, which addressed the issue of dina de-malkhuta, generally dealt with the limits of the king's taxation authority, which sometimes reached extortionate proportions.
In Christian medieval Europe, the principle dina-de-malkhuta dina took on much greater significance. Here, enclaves of Jews living as tolerated corporations in a hostile environment developed a community organization equipped to meet internal needs and to negotiate with external powers for protection. The kehillah was governed by a council of annually elected parnassim, typically seven in number, and communal life was regulated by takkanot (ordinances). When the parnassim had adopted an ordinance, with the approval of a recognized rabbinic authority, the takkanah would be publicly proclaimed. Unless a formal protest was lodged immediately, the enactment was assumed to have been accepted by general agreement, and every individual became liable to the penalties stipulated for its infraction. Communal leadership was exercised by a hierarchy based upon wealth and scholarship. A measure of regional unity was fostered by the convocation of rabbinical synods, attended by representatives of many kehillot, which formulated takkanot commonly accepted by the participating communities.
From early in the ninth century, European Jewry lived under various charters modeled on that of Emperor Louis the Pious (son of Charlemagne), which granted them permission "to live according to their law." The charter issued by Emperor Henry IV in 1090, confirming the rights of the Jews of Speyer, typifies the scope of the Jews' medieval corporate privileges. It provides:
1. Henceforth, no one who is invested in our Kingdom with any dignity or power, neither small nor great, neither free man nor serf, shall presume to attack or assail them on any illicit ground;
2. Nor shall anyone dare to take from them any of their property which they possess by hereditary right....
3. They may have the free right to exchange their goods in just trading with all men and to travel freely in order to carry on their business and trade, to buy, and to sell. No one may exact from them tolls or demand any public or private levy....
6. No one shall presume to baptize their sons or daughters against their will.
13. If the Jews have a dispute or a case among themselves to be decided, they shall be judged and convicted by their peers and by none other.
The terms of this charter reflect the utilitarian nature of the relationship between the emperor and the Jews. The Jews' business activity was protected by the emperor because it represented an important source of revenue through royal taxation. The Jewish community sought the emperor's protection from the hostility of the church and for the exercise of judicial autonomy as necessities for carrying on business life. Although rabbinic authorities viewed their Jewish legal interpretations as the ultimate law of the Jews, the kings of Europe never relinquished their authority to act as the ultimate power in matters affecting their Jews. Thus, from the Jewish viewpoint, dina demal-khuta dina was a limited recognition of "foreign" law based upon the authority of Jewish law, whereas to the medieval king, the law of the land governed the Jews though it accorded them a significant measure of autonomy.
The Talmud is silent as to the legal foundation of the dictum dina demal-khuta dina, and this issue did not engage the attention of the geonim. During the medieval period, however, a number of bases for the principle were proposed. Rashi (1040–1105) predicated Samuel's statement on the commandment obligating non-Jews to enact laws to preserve social order. Although all mankind ("the sons of Noah") was obligated to maintain order in the world, the nations of the world were not expected to observe the strictures of Jewish marriage and divorce law. Hence the specific exclusion of writs of divorce from the jurisdiction of non-Jewish courts is readily understood. Other scholars viewed the principle as a matter of implicit, contractual agreement between the king and his subjects. Thus Maimonides (1135–1204), in codifying the law that the principle applies to the edicts of a king whose sovereignty is demonstrated by the circulation of his coins as common, local currency, avers that such usage serves to indicate that the inhabitants of that country have accepted him and take it for granted that he is their master and they are servants to him. Similarly, Rashi's grandson, R. Samuel b. Meir (1085–1174), commented: "For all the citizens accept the king's statutes and laws of their own free will." Rabbi Nissim of Gerondi (ca. 1310–75) explained the contractual basis of dina de-malkhuta dina more starkly: because the king owns the land, the Jews are obligated to obey the conditions he establishes for residence thereon. Yet another basis for the contract was the principle that a king acquires total sovereignty over his subjects through military conquest. A third rationale for dina de-malkhuta dina was first put forward by Rabbi Ya'akov Tam (ca. 1100–1171), younger brother of the Rashbam (Rabbi Samuel b. Meir). Rabbenu Tam based the rule on the right of the court to uproot a law of the Torah in matters of civil law, hefker bet din hefker. Under such a view, recognition of the statutes of the kingdom by the rabbis was a legitimate exercise of this well-established rabbinic authority. Another view analogized the authority of the ruler to the power of a king of Israel. A fifth view based the legal underpinning of the principle on the halakhic validity of customary law. It is no wonder that one of the later authorities observed: "There is great confusion among the legal authorities in this matter [dina de-malkhuta dina], and many contradictions ... I have not seen anyone of the authors who has said something clear and with solid foundation."
The principle, as it was applied, was by no means absolute. The definition of its scope was a matter of ongoing discussion among the rishonim and, later, among the aharonim. A fundamental principle, upon which all authorities agreed, was that dina de-malkhuta dina recognition was extended only in monetary matters and not to religious ritual prohibitions (issur ve-hetter). In matters with both monetary and religious aspects, the scope of dina de-malkhuta was limited to the commercial dimension. Thus, for example, although marriage was considered a religious act, a government ordinance regulating the amount of a ketubbah (marriage contract) payment would be sanctioned under the principle dina de-malkhuta dina. Another universally accepted axiom was that the law of the kingdom must apply equally to all the kingdom's inhabitants. But if a law fell equally upon all Jews, even though it was discriminatory against Jews as a class, it was, at times, upheld. This qualification reflected the feudal realities of European Jewish life; the principle was not so qualified by the rabbinic authorities living under Moslem rule.
In the spirit of medieval jurisprudence, most of the rishonim limited the application of dina de-malkhuta dina to ancient law, excluding new legislation enacted by the king. In his incisive article, "Law and Constitution in the Middle Ages," Fritz Kern demonstrates that, during the early Middle Ages, law was a transcendent entity. The power of the state was secondary to and derivative from customary law. Within this context, one rationale for the rabbis' exclusion of positive law from the scope of dina de-malkhuta was that the dictum referred to the law of the "kingdom," not to the law of the king. Kern points out that "the Middle Ages knew no genuine legislation by the State. The ordinances or laws of the state aim only at the restoration and execution of valid folk and customary law." Reflective of this attitude is the second basis for limiting the scope of dina de-malkhuta dina to ancient legal traditions: as the kings of Israel were restricted in their legislative authority, so were kings of the "nations of the world" bound by ancient law and prohibited from legislating beyond those bounds. Moreover, the very text which enunciated the principle dina de-malkhuta dina, BB 55a, seemed to limit the king's authority to alter existing practice through legislation. The Talmud had restricted the king's right to confiscate land to failure to pay the land tax; confiscation for failure to pay the poll tax was specifically excluded. Hence it could be inferred that even if the king desired to confiscate land for failure to pay the poll tax, such a decree would not be accorded recognition under the principle dina de-malkhuta dina.
With the developing trend toward the recognition of positive law in the later Middle Ages, changes in the halakhic (Jewish legal) position with regard to new legislation became evident. Although the great weight of early halakhic authority held that dina de-malkhuta dina applied only to ancient law, this view was not shared by Maimonides or by the Rosh (R. Asher ben Yeiel, ca. 1250–1327). Consequently, Joseph Caro (1488–1575), codifier of the Shulkhan Arukh, who decided the law in conformity with majority rulings between Maimonides, Asher ben Yeiel, and Isaac ben Jacob Alfasi (1013–1103), made no mention of the restriction of dina de-malkhuta dina to ancient law. Caro's decision to omit this restriction served as a basis for later authorities to extend the principle to the changed concept of legislation in modern times.
Another qualification of dina de-malkhuta dina was that the law at issue had been enacted by the bona fide sovereign of the land. Use of the ruler's coins in the territory would evidence the contractual relationship between the sovereign and his subjects.
The king's right to exact the payment of taxes was recognized in the Talmud, and post-Talmudic authorities held that tax evasion was robbery. The Talmud, however, had qualified the right of taxation to assessments bounded by a legally prescribed limit. This qualification served as the basis for the later distinction between legally warranted taxes (those within the scope of dina de-malkhuta dina) and taxes considered gezelah de-malkhuta (literally, "robbery by the kingdom") and, hence, avoidable. By the fifteenth century, however, a flexible approach was, of necessity, taken in demarcating the limits of legitimate taxation. Similarly, the specific restriction of land confiscation to cases of land tax deliquency, as distinct from failure to pay the poll tax, was swept aside.
To the extent that the concept gezelah de-malkhuta was invoked, it was, of course, no deterrent to the exercise of royal authority. As Salo Baron has observed: "Clearly, under the then existing power relationships, no king treated such rabbinic qualifications as serious obstacles in the enforcement of his decrees." A rabbinic declaration that an act was gezelah, however, had significant implications within the Jewish community. If property were stolen, one who later came into its possession would not be considered the rightful owner. A Jew could not benefit from the unlawful confiscation of another Jew's property. To this extent, the principle dina de-malkhuta dina was not only one of accommodation but also one of resistance.
It was an accepted axiom of early medieval law that the monarch could not arbitrarily interfere with the well-established rights of the governed; each individual was to be maintained in his existing legal position. This legal conception, rooted in the notion of fealty, recognized as a corollary the subject's right of resistance. Thus the author of the Sachsenspiegel asserted: "A man must resist his king and his judge, if he does wrong, and must hinder him in every way, even if he be his relative or feudal lord. And he does not thereby break his fealty." By designating "illegal" confiscations as gezelah rather than as dina de-malkhuta, Jewish law in effect exercised the right of resistance common to the early medieval period.
The fourteenth-century glossator of the Sachsenspiegel reflected the influence of Roman law when he emended Eike von Repgow's assertion with the observation that the king who might be resisted was only a provincial king, not the sovereign rex Romanorum. Under similar influence and as an outgrowth of the increasing dependence of the Jews upon the king in the later Middle Ages, the authority of hurmena de-malka, royal regulations, became exalted in Jewish law. A sharp distinction was drawn between the royal prerogative (hurmena de-malka) and the authority of Gentile judicial tribunals (arkha'ot shel goyim). Concomitantly, there was a diminution in the invocation of the principle gezelah de-malkhuta.
A similar pattern of development toward increasing recognition of the king's law under the principle dina de-malkhuta dina is discernible in the matter of mesirah, turning over an alleged Jewish criminal, subject to the death penalty, for prosecution by the king's agents. Following the opinion of Resh Lakish in the Palestine Talmud, Maimonides had codified: "If the Gentiles said 'give us one of you and we will kill him and, if not, we will kill all of you,' let them all be killed, but do not turn over one Israelite. But if they specify [a particular individual] and say 'give us so-and-so or we will kill all of you' if he warranted death as did Sheva ben Bichri, he is turned over to them." Opinions differed as to which law must establish the guilt of the accused for purposes of applying this ruling. According to Rabbi Menahem ha-Mei'iri, the teaching of Resh Lakish applied only to cases in which the criminal was liable to the death penalty by Jewish law. Similarly, the Rosh permitted false testimony under oath to protect a Jew subject to death by foreign law but not under Jewish law. By the seventeenth century, however, Rabbi David ha-Levi maintained that the accused was to be turned over to the king even if he were liable to death by royal law but not by Jewish law. He derived this conclusion from the phrase "guilty as Sheva ben Bichri." Inasmuch as Sheva ben Bichri was declared guilty by royal order, not by Jewish legal process, it followed that a criminal demanded by the king was to be turned over for prosecution. During the emancipatory era, this position was to be reaffirmed by Rabbi Ishmael ha-Cohen.
The issue of the validity of bills executed in non-Jewish courts was a matter of substantial rabbinic discussion during the Middle Ages. In addition to the mishnah in Gittin providing for recourse to non-Jewish courts for the limited purpose of executing certain bills, a further tannaitic passage absolutely forbade seeking judgment before a non-Jewish tribunal: "It has been taught: R. Tarfon used to say: In any place where you find heathen law courts, even though their law is the same as the Israelite law, you must not resort to them since it says, 'These are the judgments which thou shalt set before them,' that is to say, 'before them' and not before heathens." The Ashkenazic rishonim insisted upon the exclusive jurisdiction of rabbinic courts for Jewish litigants, and this provision was successfully solicited from the secular powers in the Jews' corporate charters.
At a synod at Troyes, about 1150, Rabbenu Tam and other authorities, with the assent of a large group of northern French and possibly western German rabbis, decreed:
1. We have voted, decreed, ordained and declared under the herem (ban) that no man or woman may bring a fellow-Jew before Gentile courts or exert compulsion on him through Gentiles, whether by a prince or a common man, a ruler or an inferior official, except by mutual agreement made in the presence of proper witnesses.
2. If the matter accidentally reaches the government or other Gentiles, and in that manner pressure is exerted on a Jew, we have decreed that the man who is aided by the Gentiles shall have saved his fellow from their hands, and shall secure him against the Gentiles ... and he shall make satisfaction to him and secure him in such manner as the seven elders of the city will ordain....
3. He shall not intimidate the "seven elders" through the power of Gentile. And because the masters of wicked tongue and informers do their deeds in darkness, we have decreed also excommunication for indirect action unless he satisfy him in accordance with the decision of the "elders" of the city.
(Continues...)
Excerpted from Separation of Church and State by Gil Graff. Copyright © 1985 The University of Alabama Press. Excerpted by permission of The University of Alabama Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
