Thursday, May 31, 2012

Modern states and dina d'malchusa dina

(who da boss?)

Dina de'malkhuta dina in our times, when there is no king but rather what is called democracy, needs further clarification. As I already explained the position cited in the name of Rivash quoting Rashba, one does not accept dina de'malkhuta dina except where the law originates with the king. But in a case where the law originates in courts, and the judges have discretion to rule as they think proper, or to invent new laws as they see proper, there is no dina d'malkhuta dina, as there is no law of the king. [...]
This is even more true since we have here [in the United States] an institution called a "jury" where the government takes drunks from the market who have never studied law and who establish the law based on a majority vote. Indeed, even the government sometimes creates law, and the Supreme Court contradicts it. Certainly in such a system there is no dina de'malkhuta dina according to Rivash and Rashba. 
— R. Menashe Klein, Mishnah Halakhot 6:277
I wanted to re-iterate the final point of the previous post.

Halacha was decided in the times when the kings held absolute power. The kings owned all the land under their control and could acquire their subjects (and those of others) as slaves if they so wished. I still don't know why, but Halacha grants them such power — the act of kibush milchama (conquest by war) creates a kinyan on the conquered property.

Over time, the kings' subjects demanded to be freed from slavery and that kings should be governed by the rule of law themselves. Signing of Magna Carta is a famous example of such transition. Note that if you look at the signing from libertarian point of view, it is the kings recognizing their subjects' rights. But from strictly Halachic point of view, it's the landlords sharing their property with the tenants (and/or freeing the slaves).

In some countries, the kings were eventually deposed. That act by itself may have been an act of robbery according to Halacha. Of course, if you read into Alter Rebbe's wording, the way that each king acquired his land and his kingship was also robbery, a simple example of kinyan gezeila (source):
וכן אם נכרי בעל הקרקע שנותן רשות לישראל לקצוץ הוא מחזיק קרקע זו מיד המלך שנתנה לו אע"פ שהמלך עצמו כבש קרקע זו במלחמה מיד אחר אין זה גזל שהקרקע נקנית להגזלן בכיבוש מלחמה קנין גמור כמו שלמדו חכמים ממדרש הפסוקים 
[...] וכל זה בחוץ לארץ
Note, besides the language characterizing the king, the source: "as the Chazal learned from the psukim". We don't have really clear explanation here how the kinyan works and why it works the way it does. But the simple idea is that the king's law is the law because he owns all the land, and we must listen to him. Again, I have found no indication that Alter Rebbe believes that the king has these powers because he represents the society. Alter Rebbe simply states that the king acquires whatever "the strength of his arm reaches".

Anyway, as I was saying, with time the kings were either deposed or forced to share their property with everyone else. It's interesting to note that Russian Tzar until the end resisted this move, insisting on his right to autocracy:
Despite a visit to Great Britain before his accession, where he observed the House of Commons in debate and seemed impressed by the machinery of democracy, Nicholas turned his back on any notion of giving away any power to elected representatives in Russia. Shortly after he came to the throne, a deputation of peasants and workers from various towns' local assemblies (zemstvos) came to the Winter Palace proposing court reforms, such as the adoption of a constitutional monarchy, and reform that would improve the political and social life of the peasantry. 
Although the addresses they had sent in beforehand were couched in mild and loyal terms, Nicholas was angry and ignored advice from an Imperial Family Council by saying to them: 
"... it has come to my knowledge that during the last months there have been heard in some assemblies of the zemstvos the voices of those who have indulged in a senseless dream that the zemstvos be called upon to participate in the government of the country. I want everyone to know that I will devote all my strength to maintain, for the good of the whole nation, the principle of absolute autocracy, as firmly and as strongly as did my late lamented father."
 According to the way Judaism views the monarchy and its relationship with the land and the people, the Tzar was merely defending his rights to manage his property without his slaves' advice or participation. We all know how it ended.

Whether or not deposing the Tzar was against Halacha (murdering him and his family seemingly was, although I feel no sympathy to the person who has personally ordered numerous pogroms against Jews of his country), whether or not rebelling against George III, signing of Magna Carta, deposing James II and severely limiting the powers of William III after the Glorious Revolution (and further reduction of the power of the Crown), recent secession of Canada from the Commonwealth, and other acts cancelling monarchy's power were against Halacha, the fact is that in all modern Western societies, the government does not have absolute power. It does not own the land, and the people are not the government's slaves. The Queen of England is a symbol; the "might of her arm" extends perhaps as far as her corgis, but not much farther.

After millenia of being conquered by the kings, the people finally conquered their masters and thus became sovereigns themselves, making kinyan each on his own property. In the American Constitution and framework of society, the people's sovereignty is very clear and explicit. In most other countries of the West (not in Russia, however), it is at least implicit.

Therefore, I think that whenever people quote opinions of Rambam and other poskim verbatim, without trying to figure out to what extent they apply, they are assuming that we still live in the Middle Ages. I think we need to come to terms with the fact that "nature changed" not only in medicine, but in the society as well, and re-examine which halachos apply and how.

Despite the lamentable fact that Rabbi Menashe Klein was clearly disdainful of the common law, as evidenced from the quote above, his halachic analysis seems to agree with my argument above. Also, while he unfortunately doesn't understand fully how the trial by peers works, he is right about one thing: the government is not the sovereign! Its law is not final. Supreme Court can nullify the laws; the juries consisting of "market drunks" can nullify the laws; the states can nullify the laws, and even local towns can nullify laws.

But we don't even need to go that far. In the British Empire, dina demalchusa has ended in 1689 with signing of the Bill of Rights (just read the provisions to see that the "drunk from the market" presiding in the jury is nothing comparing to the new limitations set on the British monarch).

This is not just a game of words: the Queen literally has no political power. She sits on her throne only at the grace of the Parliament which is controlled by the taxpayers. So, even though it's called "monarchy" and the Queen is called a sovereign, it's really not that different from USA, where "the government sometimes creates law, and the Supreme Court contradicts it". In UK, the Queen may not create any laws at all.

In other words, dina demalchusa is dead in the Western world.


mor said...

Assuming that dmd comes from kinyan/kibbush milchama/everything belongs to the king, it would seem that R Menashe Klein is right.

But aren't there other opinions about where the concept of dmd comes from? If you really wanted to show that dmd is dead you would need to go through each possible approach to the origin of dmd and prove that each one is no longer shayach.

Even then, it isn't so clear to me that you would have a good case. Since the fact that there is dmd is just sort of an axiom that Shmuel says. So a lot of Rishonim and Achronim give different explanations of it. But just because there have been, say, 12 different explanations of Shmuel's statement since the time that he said it, that doesn't mean that all of the possibilities have been exhausted. In other words, just by disproving a reason that was given ex post facto, you are not necessarily disproving the principle itself. Maybe you are, and maybe you aren't.

mor said...

Sorry, disproving is the wrong word. I mean "showing that it is no longer relevant."

Certified Ashkenazi said...

Yes, I have to show that other arguments do not apply either. I have read about them in a few papers, and in my opinion, they are all bogus. Especially the one about popular consent.

Or I can just say that I hold like Alter Rebbe and Rabbi Klein.

> just by disproving a reason that was given ex post facto, you are not necessarily disproving the principle itself. Maybe you are, and maybe you aren't.

But we only know what the Rishoinim came up with and other principles in Halacha. What do you want to do: make something up?

Maybe if you don't listen to what the government says, you're killing malachim in Atzilus. There you go: even if it's a Nazi government, you still have to listen to it.

The way we see if some law is binding is examine what the reason for the law is and what its scope is. It's done all the time. Is celebrating Thanksgiving violating prohibition of following chukas goyim? There are statements in Gemara that tying your shoelaces the same as goyim is ossur. There are statements that going to a secular court to resolve a conflict is not a problem from the point of view of nezikin, but is a problem due to following chukas goyim.

But poskim like Rab Moshe bend over backwards to show that chukas goyim refers only to religious customs. They pick the specific Rishoinim they like and look selectively at what they say. Apparently, I am not the only one with a political agenda.

I could say, for instance, that the reason why DDD existed is that we should respect the laws and the customs of other societies, and that the societies should be lawful, not "might makes right". Before, there was no social theory of what "lawful society" is except "that which has a king who makes rules that everyone obeys". Sort of like "educating children" back in the day was "creating rules for the children and beating them up if they disobey". So, we still used "might makes right", but we chose between two evils.

Nowadays, we have a better idea of what justice is. It's not the rule of the prince; it's the rule of the law, and one doesn't need a prince to establish the laws. (Actually, Germanic tribes on the Continent and in England and Iceland have always known it. Irish have known it. And we, the Jews, have also known it.) Furthermore, the point of laws is to resolve conflicts, not to establish the prince's will.

Now, even today there are conflict resolution rules established by the government that still apply. Traffic lights are the way that the government imposes conflict resolution of traffic. So, if I run a red light and crash into you, I owe you damages. But if there is a red light in the middle of a street with no intersection, that that's just an arbitrary rule created by a prince.

As far as taxes are concerned, there are taxes paid for the upkeep of the lawful society, and there are taxes for payment of Medicare and invasions of foreign countries. Some are just, and others are not.

But if you want to go back to the legal text and show that "Rambam says that all laws of the king are binding", two can play that game. All laws of the KING are binding, but not of a democratic government. Why the first and not the other? Because the king owns the land. Once you start guessing what Rambam meant, I can also start guessing what he meant.

mor said...

Sure you can. I still feel like you are beating around the bush. This is why taamei hamitzvos can be dangerous. I mean, people can definitely say that since the reason no longer applies, the halacha no longer applies in certain situations (like the Rebbe on women learning -- although one can argue that since that is "tzivu chachamim," it is more flexible) but not everyone has the power to make a decision like that. You have to be a great posek and understand all of the variables floating around. I am not saying that you are wrong. I am saying that you may be wrong.

CA said...

And how do you decide which posek to follow?

Maybe the same can be said about mesira: there is a reason not to turn in the child molesters to the authorities that we don't know of. Ta'amei hamitzvos work only up to a point.

Obviously, that's ridiculous. You have a real danger which we need to balance with the problem of mesira. If we don't act, we make a decision just as we would if we acted.

The same goes for DDD. I am not against the government just for the heck of it. There are real moral and ethical problems connected to the governments and their conduct throughout history. Furthermore, there is an issue of gezeila, which is a real prohibition. As in "chamsanusa demalchusa (demedina)".

Alter Rebbe writes in Hilchos Talmud Torah that the reason we need to learn Gemara, in addition to uniting our mind with Chochmah Ila'ah, is to know how to apply the halachos. So, we have to look at the sources carefully.

I think the problem with relying on poskim blindly in our times is yeridas hadoros. And part of that problem is that the chareidi community shielded itself from the outside world, not realizing that when Torah says that one has to stay healthy, it means "listen to the modern medical opinion and follow it the best you can", and the same principle may apply to many other areas.

If a posek thinks that Pythagorean theorem only applies to squares but not rectangles, what good is his psak on this issue? I will tell you: since he is a posek, and Shechina speaks through him, his psak is good for the particular sha'aleh he received. But we can't draw general principles from his psak, because the psak was not based on the physical matters of the case but on the spiritual circumstances. That's my humble opinion.

mor said...

It is funny that you should mention child molesters, since R. Klein is actually famous for coming out and saying that you can never turn them in.

Your parallel between DDD and mesira is not a good parallel, and I am not going to even bother explaining why not. You can figure it out yourself.

There isn't really a nafka mina anyhow, since there is the issue of darkei shalom/chillul Hashem. Again, I think that you might be right, but you also might be wrong. Just because the heads are unworthy, that does not make the feet suddenly worthy. They are still feet.