Sunday, April 29, 2012

Dina d'malchusa dina and legitimacy of a government

The crux of the post is question 5 below. Those with ADD may skip to there.

Scenario: Bob did not pay his taxes. (Alternatively: Bob did not pay for speeding tickets.) The state of Louisiana came in and confiscated Bob's car to pay for his supposed debt. (Or, perhaps, it seized Bob's car under the right of eminent domain.) It is now selling the car to pay for Bob's debt.

Question: Should a Jew be allowed buy Bob's car on a state auction?

Normally, it would be objectionable to buy property that you know to be stolen. In the case of governmental confiscation, however, things are different. There is a concept of dina d'malchusa dina (DDD), "the law of the land is the law", which means that if the government imposes a tax on an individual, the individual has to pay that tax, since the law of the land is the law. Therefore, if he did not pay the tax and the government seized a car as a way of exacting the payment, we may buy that car.

A few questions may be asked.

1. If Bob owes Joe some money, can Joe just seize a random piece of Bob's property to get back his money? Can he sell the property at a below-market rate to attract a buyer, as opposed to selling it at a market rate and then, perhaps, giving Bob back the difference, if any?

2. What laws fall under DDD? There is a discussion among the rishoinim as to what the scope of DDD is. Some argue (specifically, Ba'alei Tosfos) that it only refers to taxes. Others (e.g., Ramban) that it refers to all laws beneficial to the society. (The last position can be looked at as begging the question. How do we know that a law is beneficial to the society? What if we disagree on its supposed benefit? What if we consider the law to be immoral?)

3. Can a government disqualify itself? I don't know how many rabbis would argue that Nazi Germany was a legitimate government whose laws one had to obey halachically (and I am not talking about the laws that went explicitly against Torah; I mean all the remaining laws). If the state of California makes bris milah illegal, do its citizens have to obey its laws?

4. What is the point of DDD? I.e., why is dina d'malchusa dina? Is it because the government is necessary to create peace in the society? Besides the fact that this is an arguable assertion (in reality, today, the government creates more discord and is actually much worse at maintaining peace and fighting crime than private competing agencies would be, especially if their customers were peace-loving people), does this mean that the government may only tax for the purposes of defense, but not, say, road maintenance? Is it because the government owns the land? While that was true back in the day, nowadays (especially in the USA) it's not anymore.

5. What is a legitimate government? How do we know that some agency that imposes a tax on individuals is a government and not a mafia?

Rambam writes on this:
When a king cuts down trees belonging to private people and uses them for a bridge, one is permitted to cross over it. Similarly, if he destroys homes in order to construct a road or a wall, it is permitted to benefit from it. The same principle applies in all analogous situations, because the laws of a king are binding. 
When does the above apply? When the coins issued by a king are the tender of the land. This indicates that the inhabitants of that land have accepted him and consider him to be their leader and themselves to be his subjects.
If, however, the coins he issues are not the tender of the land, he is considered to be a robber who takes by the force of arms. He and his servants are like a band of armed thieves, whose laws are not binding. Such a king and his servants are considered to be robbers in all respects.
So... The individual 50 States of the USA have no right to issue coin (under United States Constitution). They may not exercise it without amending the Constitution or seceding from the Union (both being unlikely). On the other hand, the States are not administrative entities (like counties, for example), owing their existence and legitimacy to the existence and legitimacy of the Federal government. In reality, it's the opposite: the States are considered by the Constitution to be sovereign entities.

Does this mean that the state laws (including payment of state sales taxes) are not covered under DDD?

Some may argue that seemingly they are. It's clear (an argument may go) that people consider the States to be legitimate governments. The coinage clause was merely a way to differentiate between a legitimate king and a robber in the ancient times. This halacha was written in the time when the concept of federalism did not exist. Furthermore, the concept of private coinage also did not exist (or was not widespread): surely, the Bank of Holland or private mints in England in the 19th century (whose coin was used as tender in retail) were not governments.

Well, first, one has to find a source for such reasoning among the Rishoinim. (Certainly, sticking to Rambam's definition would be in spirit of legalistic practices found in many instances in Halacha.)

Second, if we expand the definition of malchus this way, we might as well expand the concept of DDD.

Is the law of the king equivalent to the law of the land because there is something special about the law of the king? Or is their congruence merely an empirical observation? Are we supposed to follow the law of the king or the law of the land? Even though, historically, they have often been equivalent (just like the king's monopoly on coinage has been the fact), that does not have to be the case: the king's (or a democratic government's) law may contradict local custom, for instance. It may contradict common law. It may contradict natural rights and natural law, which may constitute a better definition of the "law of the land" in modern times.

If you read Rambam's section on DDD, in many cases he states "because such is a practice of the kings to...". Was he making merely an empirical observation? I.e., if such is a custom of the society, then such is the law of the land, that the king may do X. But what if the customs have shifted? Certainly, in our times, the rights of the kings (and governments in general) have been greatly diminished. So, if the specific royal practices are no longer the law of the land, why not the whole concept of royal (or democratic) authority as representatives of the people?

Perhaps, if we "modernize" the criterion for the legitimate government beyond minting money, we should "modernize" the criteria for the law of the land? Or, to focus on the government itself, maybe a modern legitimate government is such whose role and main activity is to defend natural rights of its citizens. Perhaps a government that does not do so (or, in fact, violates its citizens' natural rights) is not a legitimate government at all?

Finally: how do we know that a government has support of its people? As Lysander Spooner has eloquently argued in his book No Treason, it is notoriously difficult to prove that the populace considers its government (state or federal) to be legitimate. For instance, if a person votes in elections, it does not mean that he considers the government for which he votes to be legitimate. Maybe he votes because he is afraid what the alternative government may do to him and his family. (Rebbe Rashab urged his Chassidim to vote for Mensheviks in Russia. It does not mean he necessarily believed them to be a legitimate government. Maybe he believed the tzarist government to be a legitimate government, but he feared Bolsheviks coming to power more than Mensheviks doing so.)

Or, the way Spooner himself puts it, this is similar to a man who finds himself on a battlefield. Behind him are his country's special forces who will shoot him if he does not advance with his gun towards the enemy. Ahead of him are the "enemy" soldiers in a condition similar to his. If he does not shoot at them, they will shoot and kill him. The fact that he advances and shoots does not mean he supports this particular war, or his country, or the cause: he is merely trying to survive.

There is no difference between such a soldier using a bullet and a voter using a ballot to survive. Neither of the two men's actions are evidence of the legitimacy of their government.

Not to mention that at any given moment, hardly more than half of the country or a state votes for a particular government (since 100% never participate in elections). For instance, last I checked, the last governor of Massachusetts was elected by something like a third of the population.

A final point: if Bob acquired Joe's land, and there is a question as to the legitimacy of the transaction (i.e., it is not clear if he really acquired it or if he stole it), should we not take a more stringent approach and err on the side of caution, assuming that we may not buy the land from Bob? If Bob is currently in possession of the same parcel of land, should we not err on the side of caution and assume that he still owns it?

No comments: