Dina d'malkhuta dina

Origins of this idea come from Jeremiah's letter to the Babylonian exiles: "Seek the peace of the city to which I have exiled you and pray to the Lord on its behalf; for in the peace thereof you shall have peace" (Jeremiah 29:7). In the opinion of some, for the exiled Jews their submission to gentile rulers was viewed more as a "pragmatic recognition of brute force" than anything else.[5] Yet it is surely a mark of something extraordinary in the message of Jeremiah that his advice goes beyond mere submission to necessity and requests prayer for the "peace (שָׁלוֹם)" of those among whom the exiles find themselves.

The first to cite a teaching under the authority of Dina d'malkhuta dina, and who applied it to Jews who live under the laws of foreign lands, was Mar Samuel (ca. 177–257), a Talmudic sage from Babylonia.[6]

Rabbi Hanina, who had been the Deputy High Priest before the Roman conquest of Jerusalem and the destruction of the Second Temple is cited in tractate Avot (Talmud, b. Avot 3:2) as saying: "Pray for the welfare of the government, for were it not for fear of it, people would swallow one another alive."[7]

The dina etc. (= "law of the land") was the only extraneous element that was incorporated into the halakhic law structure, the foundation of jurisdictional autonomy of Jewish communities,[8] and applies to raising taxes, duties and imposts, on the condition that the exacter is fully authorized and does not exact more than what he is entitled to exact,[9][10] as also to a government's right to determine ways of commerce.[11] In cases of abuse, it was permitted to evade customs (import tax). By definition, the term would also apply to the king's ability to expropriate lands under the laws of eminent domain for the building of new roads for his army during war.[12][13] Not only is he permitted to build a road for his army, but according to Shemuel, in virtue of the powers vested in the government or in the king, he has the authority to cut down another's date-palm trees and to make from them bridges, while persons making use of the bridge need not suspect that the original owners have not despaired of retrieving their lost property and are still in possession of the timbers, seeing that, in fact, they have despaired of retrieving what was formerly theirs.[14] Included in the general scope of the term's definition are the legal deeds (conveyances) and documents held in non-Jewish courts of law and registries, which are viewed as valid.[15] The statement dina de-malkhuta dina, appears 4 times in the Babylonian Talmud and is a nod to Jewish acquiescence to Gentile authority, as also to Jewish secular authority.[16][17]

The term dina etc. (= "law of the land") not only applies to an Israelite or Jewish government, but also to non-Jewish governments where Jews are concerned and where the law of the government must be respected as the law of the Torah. The Talmud (Baba Batra 55a) notes that, in the case of the Persian government and its laws, title to land can be acquired by usucaption (occupancy) after forty years of occupancy by a farmer, during which years the farmer had not met up with any counter-claim or protest, although in Jewish law one gains title to property by usucaption after working it for only three years from date to date.[18] In this case, Jews living in Persia were obligated to honor the law of the land. The novelty of the Persian law allows for the Persian farmer who gained possession of the property to sell the property to others, and even if it should later be learned that the property was stolen from its original owner (who had not protested his right to the property all these years), the person who buys the property - if confronted by its rightful owner who now lays claim to the property and demands that restitution be made - is not required to relinquish the property under Persian law,[18] something which stands contrary to Jewish law (when the rightful owner has not despaired of retrieving his lost property), although valid by virtue of Dina d'malkhuta dina. Only in such places where Jewish law prevails would the original owner, in such cases, regain access to his stolen property, seeing that stolen property cannot be acquired by way of usucaption. Land purchased by a Jew from a non-Jew, the non-Jew must authenticate its purchase by showing a legal deed of title to the property.[19][18]

While the majority of rabbis hold that Dina d'malkhuta dina applies to, both, Jewish and non-Jewish governments,[20][21] Rabbi Nissim, who cites the Tosafists, dissented, saying that with respect to land-tax levied by a government on its subjects, such as in the case of the Persian king who was entitled to levy a land-tax upon his subjects, and those who defaulted in payment could have their property confiscated, or either mortgaged by mortgagers until payment has been made on the property (Baba Bathra 55a, Rashi s.v. טסקא‎), the rule of Dina d'malkhuta dina applies in their case, that is, only to non-Jewish kingdoms (forms of government) outside of the Land of Israel, but does not apply to Jewish kings and governors within the Land of Israel.[22] According to Maimonides, the government of any country has the authority to levy a land-tax upon its subjects, and those who default in its payment could have their property confiscated from them, or either mortgaged by mortgagers until payment has been made.[23]

The rabbis required "minimal justice" from non-Jewish rulers, as such for the dina to be accepted there were two stipulations. These stipulations were that laws had to be both explicit and universal, to safeguard Jews from gentile laws that could potentially be used against them.[5]

The Rabbis created terms that could be easily used and identified for highlighting the jurisdiction of the dina (= "law of the land"), these mamona (civil and economic matters) were places where the dina could legitimately supersede even Torah law, and the isura (forbidden or religious matters) that the gentile laws could not be heeded against the Torah.[5]

The Talmud (Baba Metzia 28b) relates a story about a point in time when the Persian government made it a law that any money found by one of its citizens automatically becomes property of the state. Rabbi Ammi and a colleague of his found lost money which its owners had, ostensibly, despaired of ever retrieving. The same rabbi knew the oral teaching which taught that he that finds lost money, where there is no indication or sign showing to whom it originally belonged and where its owner had despaired of retrieving the lost money, its finder becomes its new and lawful owner. Therefore, in total reliance on this oral teaching, he gave instruction not to relinquish the money they had found, nor give it to the Government. Since the Persian law contravened that of common Jewish law, the rabbi was able to ignore it, so long as he did not get caught in the act.

Medieval halakhists developed two approaches to the dina rule. First was the "contractual" theory where the laws of the ruling king are binding upon the subjects of the realm because they had agreed in advance to accept the king's laws. Maimonides and the Shulchan Arukh, the leading halakhic decisors (poskim), are the main proponents for this theory.[16] Second is the "ownership" theory, where the Jews recognize the king's law as the land is his personal possession; this theory is supported by the Talmudic commentators (Ran and Tosafos)

In regards to modern Israel, there are those who allege that the Talmud cites the dina as applying only upon the laws of a Gentile government, while the sovereignty of a Jewish king, as applicable to the dina, is never cited in the Talmud. In the argument supporting the dina's applicability to the modern Jewish state, Tenbitsky, a commentator on this subject, presents the principle of niḥa lehū (Hebrew: ניחא להו), the Jewish community's acquiescence to governmental power for the sake of public order. Using this logic, the niḥa lehū can be applied to any legitimate governmental purposes such as taxes for national defense, and, therefore, the dina can be applied to a Jewish sovereign, as the necessary power cannot be denied as per niḥa lehū. However, under the "ownership theory" the dina cannot be applied to a Jewish sovereign in the land of Israel as all Jews own the land together, therefore a Jewish king or government, an equal landowner, would not be able to expel others from their domain.[16]

• Hefker beth-din hefker
• Law of the land
• Lex loci rei sitae
• Lex loci delicti commissi
• Right of Eminent Domain
• Yiush

• Schachter, Herschel (1984). "`Dina De'malchusa Dina`: Secular Laws as a Religious Obligation". In Cohen, Alfred S. (ed.). Halacha and Contemporary Society. KTAV Publishing House, Inc. pp. 85–114. ISBN 9780881250428.

• Jewish Virtual Library
• Encyclopedia of Judaism
• Jewish Law: Commentary
• Rabbi David Shor DINA DEMALCHUTA (in Hebrew)