Hefker Beis Din hefker and dina d'malchusa dina

(consent of the governed)


Some people use the principle of hefker Beis Din hefker ("that which the court declares ownerless is ownerless") to explain the concept of dina d'malchusa dina ("the law of the country/king is the law").

In other words, there is a principle in Judaism that the Beis Din is allowed to declare something as hefker. That is why the Beis Din is allowed to re-assert the existence of a debt beyond the Jubilee Year: although on the outset of the year, all debts must be forgiven, the Beis Din is allowed to declare the particular sum of money as hefker and then transfer it to someone else, thus effectively re-establishing the debt.

So, the argument goes, the same happens with dina d'malchusa: the government (acting as a court) transfers property from the individual to itself. As a result, the government can create an obligation to pay taxes (or exercise eminent domain for that matter). Interestingly, according to this argument, the government's laws regarding traffic are not binding morally (although the government's fines are).

There is a number of issues here that are not clear to me:


0. (I was going to put this last, but then I decided to put it ahead of all the other points for those with ADD.) It is clear from many rishoinim that dina d'malchusa may not supersede Halacha. If, according to Halacha, you owe me something, but according to dina d'malchusa you don't, you still owe me something. Rambam says that if a non-Jew and a Jew come to a Beis Din, if the Jew wins al pi Halacha, the Beis Din should say that the Jew wins al pi Halacha. If the Jew wins al pi dina d'malchusa, the Beis Din should pronounce the latter. Other rishoinim say that the Beis Din should decide according to dina d'malchusa, since that's what governs both the Jews and the non-Jews, and, therefore, we choose the lowest common denominator. But even these poskim would agree that in the case of two Jews, we should pasken al pi Halacha, not dina d'malchusa.

But if hefker Beis Din hefker applies to the secular governments, why should the latter (or Rambam's ruling) be the case? In Reuven v. Shimon, the secular government says that Reuven gets the money. It declares Shimon's money hefker and transfers it to Reuven. So, in all cases of monetary disputes (and nezikin in general), always rely on dina d'malchusa! Clearly, most (if not all) poskim would find this ridiculous.


1. From what I understand, Beis Din is allowed to declare something as hefker only with the agreement of the original owner. That is how the pruzbul works. But in the case of the government, the individual did not permit the government to make its property hefker (certainly not those who attempt to avoid taxation).

There is an issue here of the common practice creating a chazaka (assumption): one could argue that since the majority of people agree to the government taxing them, the assumption is that an individual permits the government to declare whatever amount of his property ownerless that the government wishes. But for a number of reasons I don't think this would work here; for the most part, because (as Lysander Spooner demonstrates), it's difficult to separate the consent and approval of the governed from the tolerance and fear of the government and choosing the lesser of two evils (just because some people vote for Mitt Romney doesn't mean they like him; it means they hate Obama).

Second, taxes are clearly not voluntary. It's not a "custom of the land" to pay taxes, like it's a custom of the land that if you sell a car, you sell it with whatever tires it has on. If people were given a choice, they would not pay the taxes (even though Warren Buffet laments about the fact that he pays less income tax than his secretary, he still doesn't donate any money to the Treasury).

2. It's not clear to me that a non-Jewish Beis Din has the same powers as the Jewish Beis Din. There is the concept of dinnim in Judaism: that Bnei Noach have to establish courts of law. Rambam rules that the courts of law must exist to enforce the first six Mitzvos Bnei Noach. Ramban rules that the courts of law must exist to protect people from aggression. But I haven't seen that the Noahide courts of law have the same power as Jewish courts of law in all matters.

Furthermore, it's not clear that non-Noahide (and non-Jewish) courts of law are seen as valid instruments of law at all. We trust them to establish the veracity of contracts, but that is only from the fact that they verify the truth of contracts and enforce them: i.e., from the reality that they are a reliable source of information regarding the veracity of what it says in a contract or a bill of sale. It doesn't mean that they have any sort of moral or legal validity. (In fact, in the countries like Russia where the courts are notoriously corrupt, we don't trust them.)

3. It's not clear that the non-Jewish king (or a government) has power of a court. The king clearly has a power to make a kinyan on other people's property, but this is not the same idea as hefker Beis Din hefker; what's at play here is dinei ha'melech (laws of the king), whose legal origin is still uncertain to me. Which brings me to another point:

4. From what I have seen, at least from Alter Rebbe, it doesn't look like dina d'malchusa dina is based on some concepts like social contract or support of the populace or hefker Beis Din hefker. It is based on a kinyan (and Ran rules likewise): the fact is that according to Judaism, the non-Jewish king owns the land, and the reason he owns the land is that he conquered it and thus made a kinyan. I still don't understand why that is the case. From what I have read, it seems like we don't have a reason: we just learn it out of the psukim about Moav and Amori.

I.e., the simple truth is that when a king comes with an army, he acquires stuff by force, and it's legitimately his because Torah says that it's so. It is not based on yeush, because he can even acquire tracks of ownerless land which otherwise would require actual homesteading to acquire by private individuals (i.e., a private individual cannot acquire trees in a forest by building a fence around the forest -- he needs to prune each individual tree; on the other hand, if a king conquers the land in which this forest is situated, he owns the forest).

As I said, I don't understand how and why this works. To me it sounds like some sort of reverse yeush: that people give up in advance on acquiring that which the king has means to protect. As Alter Rebbe says, "the king owns that which the strength of his arm reaches". I.e., as far as the kings are concerned, might makes right, literally. (And by "right", I mean legal right, not ethical one. I will expound upon this point in the future.)

(Note that we don't see this directly from the psukim. There, one nation acquired another's land by conquest. But it could be the case of yeush. So, we rely on Rambam's interpretation that this was not yeush but kinyan, but I don't know why he rules this way.)

I reject the argument that property makes sense to speak of only within the boundaries of the society (and the king is a representative of the society), because that would assume that if two goyim met each other in a true wilderness (outside of any society), they'd be allowed to rob each other, and that would be a valid kinyan. Maybe that's the case al pi Halacha, but I'd like to see the source first.

Also, like I wrote before, if we have the concept of dinnim, we need to know what to enforce. That means that the commandment not to steal precedes the concept of courts and the government. But to know what stealing means, we need to know what property is a priori.


As an addendum to the last point, if it's the case that dina d'malchusa dina is based on kibush milchama (the conquest of the war by a king) and the fact that the king made a kinyan on all the land, then dina d'malchusa dina would not apply to the USA: according to the way American society was created after it broke off from the UK, the government is not a sovereign. (Unlike in the UK, where it still is.) The people are sovereigns, and they appoint the government as their agent to secure their rights. (A guard in a condominium does not own the building; the people who live in it do.)

If you look at people's political, legal, and ethical arguments, it's clear that the majority of Americans believe that they own their property, not the organization called "US government". Even the liberals who argue for socialist policies do not argue so because they believe the government owns everything; they argue so because they believe socialism is better for everyone in the end. When Justice Alito said (see the oral argument's transcript) —

you think that all the money belongs to the government [...] except to the extent that it deigns to allow private people to keep some of it [when] it doesn't take it by taxes

— it was clear to everyone he was using the argument ad absurdum (and the lawyer vehemently denied that interpretation of his own words).

If you look at the concept of eminent domain, it requires compensation for taking of the land; furthermore, there is the takings clause. If all the land belonged to the government, the takings clause would be redundant. As someone put it, the federal government exercises the right of eminent domain because we let it. (And by "we", he meant the tzibbur. But there arises the ethical question of the majority allowing some organization to rob the minority.)

One may say that it doesn't matter what the people believe — but, their beliefs create the legal reality of property ownership: if at no point did the people believe that the government owned all the land, then how did the government (that arose as a result of the people's will) come to own it? If the government at some point believed that it owned it, but now it believes that the people own it (this is especially relevant to the remaining monarchies around the world), then it transferred the ownership from itself to the individuals.

Therefore, you don't have a kinyan of all the land by the government. Some of it is privately owned, and some of it is owned by the tzibbur. Therefore, we have to derive what the government may or may not do from the halachos of tzibbur (as they apply to non-Jews). There are definitely statements in Halacha like that the tzibbur may force individuals to pay for those things that everyone uses (for instance, for building a wall around the city), but it's not clear, for instance, that the tzibbur may prohibit smoking marijuana in one's private residence or that it may take someone's property to be used for the communal use. (Also, I don't know if those halachos apply to non-Jews.)

In general, we should remember that every chumra is a kula and vice versa. So, whenever we are machmir on ruling what the government may do, we are meikel on the ossur of gezeila between Bnei Noach.

[source for the image here]