Sunday, June 3, 2012

Dina demalchusa and halachic responsa

Interesting article on Daf Yomi web-site that shows that even if one simply goes through existing teshuvos, not everything is so simple with dina demalchusa dina.

What's important in these two examples is not so much the final psak but that the issue is being discussed at all. The poskim don't just accept DDD hands down, but discuss its applicability. In the second example, economic basis of a specific law and its effect on the community is discussed.
Since the early periods of our exile many Jewish communities have been subject to cruel governments that have treated them and their property arbitrarily and taxed them unfairly. The question arose as to when a Jew would be forbidden to take money from such a government whose funds are deemed to be stolen. In a certain Hungarian community a fire consumed some buildings owned by a wealthy Jew. The local regime exploited the situation, forbade him to rebuild and confiscated his land for public use. He demanded compensation. 
The government taxed the Jews to finance the compensation, claiming they would benefit from the public facilities though only a few Jews lived in the area. The government paid the landlord but the Jews in turn demanded their money from the wealthy Jew. Our sugya explains that if tax-collectors give a person something in return for what they took, he must return it to its owners. So, in this case, the government took the land and paid the owner funds collected from Jews. They, in turn, wanted to be compensated. However, the Erech Shay (162:61) decided that he is not obligated to do so as it is not certain the money he received was the very same coins collected from the Jews.
Note the specific reason he did not obligate the land owner to return the money. What interfered here was a detail, but not the spirit of the concept that taxation of the community was immoral.

Second example, with some introduction:
First of all, we must emphasize that illogical laws that a king arbitrarily imposes are excluded from the category of dina demalchusa dina, as mentioned in our sugya. Concerning ordinary laws imposed by a king, the Rishonim have a few opinions as to which must be obeyed (see Rema, Choshen Mishpat 369:8): 
1.We must only obey laws pertaining to taxes,
2. We must only obey laws intended for the king's benefit, and
3. We must obey all the laws, both those for the king's benefit and those for the public benefit.
Rabbi Moshe Feinstein, zt"l, (Igros Moshe, Choshen Mishpat 2:62) sums up the parameters of this Halachah and says that we must obey laws intended to maintain public order and prevent anarchy [and by "anarchy", Rav Moishe erroneously means chaos and lawlessness — CA]. As mentioned above, those who live under a government must accept its laws. Still, some laws are not included in dina demalchusa dina, such as inheritance laws, which cannot be defined as intended to prevent general civic disorder. Many people divide their assets as they see fit. Further, there are not many inheritance disputes over a given period arousing worry for civic order. Those laws do not necessarily stem from any wish to maintain the regime or protect the country. 
When the law for the protection of tenants was brought to the attention of poskim, they decided it was created only for the benefit of the public and not for the government. Hence, the obligation to obey it depends on the above difference of opinions as to whether we must obey laws intended for the king's benefit or those for the public benefit. As the Halachah has not been clearly decided, many opinions continue to be expressed (Imrei Yosher II:152:2, by Rabbi Mayer Arik, zt"l; Chavatzeles Hasharon, Choshen Moshe 8, and in its 2nd edition, 86; Dovev Meisharim, 76; Minchas Yitzchak, II, 86; Tzitz Eliezer, 10:52; etc.). 
The author of the responsa Chavatzeles Hasharon questions the fairness of the basis of the law. In his opinion, when the law was passed, it aided tenants in rented homes. Later, rental conditions worsened as prospective landlords were worried that the law would curb their rights. As a result, there is some doubt as to defining the law as benefiting the public. He further claims that the law's basic principle was dictated by communists or socialists who sought to re-distribute property equally among all people, thereby sometimes seizing properties from their owners, a viewpoint not condoned by the Torah.
The last paragraph is rather amazing, in my opinion. And once you open the door to permissibility to question the government's law as far as its effect on the community... well, the sky is the limit. And by "sky" I mean laissez-faire. Of course, most poskim probably wouldn't agree with this, but they would simply be injecting their socio-economic views into their halachic opinions. (I am not saying that that would invalidate the specific opinion. I am saying that they would not be definitive as to the principle of DDD.)

The above are just two examples of how the way things stand with DDD is not poshut at all.

Also, I believe the above introduction to the concept is rather simplistic. One has to look into the halachic basis for DDD and the scope of its applicability. Unfortunately, most people treat these two topics as separate: they discuss the spread of the opinions of why dina demalchusa is binding and then move on to discuss which kinds of laws are binding. From such a discussion, it seems that the two topics are separate. But in fact, it's quite the opposite: one must be able to see the existing shittos that link the basis for DDD and it scope.

I will cover that in the future posts...

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