Question: I’ve been told that we are to follow all the directives of the government in the current pandemic, even though these very directives seem to be contrary to our religious lifestyle. The argument I’ve heard from some is Dina D’Malchuta. Is this so?
Answer: Our sages (R. Chanina Sgan Hakohanim, Avot 3:2) tell us: “One is to pray for the welfare of the government, for if not for fear of it each man might swallow his fellow.” What the sages refer to is the fear of a society that descends into lawlessness.
Now in truth, what we are seeing in our time is just that mass acts of lawlessness; subsequent to the death of one individual, who openly challenged the police in a confrontation, that will surely go down in history as the root of one of the largest national [and even international] insurrections.
There have even been calls in some localities to defund their police departments, and sadly some jurisdictions have actually followed suit doing just that.
We would be foolhardy to side with those who flaunt their attacks on those entrusted by society to protect us. Indeed, Dina D’Malchuta Dina – the law of the Land is the law, the ruling of the Amora Shmuel (Gitin 10b) directs that one must be very scrupulous to follow all the laws set in place by the governing authorities for the entire populous under their jurisdiction. This, therefore, is the directive of our sages to the Jewish people for all times, irrespective of national borders.
However, that law is limited to civil, monetary matters such as currency and imposition of taxes and obviously criminal matters as well.
The Shach (Choshen Mishpat, siman 73:sk39) “That we say Dina D’Malchuta Dina – the law of the Land is the law, this applies in matters that benefit the king [here he is not referring to our modern day democracies] or that are for the benefit of the state in instances where there is no clear Halacha found by us, but it does not mean that we will rule according to the law of the land where it contradicts the laws of the Torah [both written and oral as set down by the Shulchan Aruch]… and the law of the land only applies in matters of commercial transactions [this includes taxes, customs and duties, levies etc] and… but as for any other matters [of religious practice restrictions] that affect the Jewish people the law of the land does not apply, for if such not be the case then we will bear witness to the nullification of the Torah and Mitzvot.
As to matters that benefit the king, Rashbam (Bava Batra 54b, sv “Mi amar Shmuel hochi”) states: [in terms that we can relate to in our modern day democracies] the reason that Shmuel’s ruling Dina D’Malchuta Dina stands is because the people have accepted upon themselves the usual laws and judgments that a king imposes. The law of the land is the law precisely because the people have accepted it. Obviously in the face of an autocratic leader or regime that usurps the rights of the populace, we will not bound by the rule of Dina D’Malchuta Dina.
However, according to Ran (Nedarim 28a, “B’moches ha’omed me’eilav”) This law that Dina D’Malchuta Dina applies only to gentile kings because they own the land, (see also Rosh, Nedarim, chap 3:11 for the same conclusion.) however a Jewish king – of the land of Israel, where every Jew is a partner in the land the law does not apply.
Rashba (Novella, Nedarim 28a, sv “B’moches”) though saying much the same goes even further as he states, ‘that not only does the law of Dina D’Malchuta Dina not apply to a king of the land of Israel but also the king is no different than any other person under his reign as all are partners in the land.’
These Rishonim – early authorities, from their own words tell a different story for us today, who live in democracies, where the government does not own the land – all those areas not owned by individuals are the property of the citizenry as well, such as the streets of our cities, as well as the public infrastructure, where the government manages all of these public spaces and infrastructure on behalf of its residents, thus the overarching law of Dina D’Malchuta has only limited application.
In Sefer Otzar Dinim U’Minhagim (Rabbi Yehuda Dovid Eisenstein, p.84) the author notes that our sages say Halacha k’Shmuel b’Dini – Halacha follows Shmuel in Din – which clearly indicates that Dina D’Malchuta only applies insofar monetary matters [but not matters of Issur v’Hetter – decisions regarding Torah prohibitions, which follow Rav]. He notes as well that where the king changes the rules [laws] that were age old or where he imposes different rules for some localities, there too Dina D’Malchuta will not apply.
I must add. Are we not seeing just that, with our government officials arbitrarily deciding on various color restricted zones, where positivity numbers are somewhat lower than numbers in other areas where no restrictions have been placed [this was factually reported on these pages a few short weeks ago].
Rabbi Eisenstein also adds: “Also simple understanding demands that it be impossible to allow that a gentile king [for us today translate as civil authorities] may nullify the laws of the Jewish religion. Laws for which Jews were ready to die for and indeed suffered torture and endured death in the face of forced conversions over the course of our long difficult history.
Citing Rivash (Responsum 171) he adds that the civil authorities have no right to place a Rabbi as a government religious functionary over the community, who will issue Halachic directives, if the majority of the community objects. And such an individual, who accepts such a position contrary to the community’s desire, is guilty of causing distress to the community, cosequently in the future he will be held [by Heaven] to account for his action.
It is important to note that even in light of Dina D’Malchuta Dina, as a first option a Jew making a claim against another Jew is duty bound to first make his claim in Beit Din – the Jewish ecclesiastical court. In fact in most instances, where the parties to the dispute have agreed to the Beit Din arbitration, the Beit Din rulings are recognized and even supported by state courts,
Interesting to note is that the framers of the United States constitution were not only religious G-d fearing men but they wanted the newly sovereign nation to provide religious freedom for all. In that vein they enshrined that right in the very first amendment to the constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech. Or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”
So admired is America’s constitution and the freedoms enshrined therein that they have not only benefited our citizens but have served as a model for many of the true democracies that have arisen with the dissolution of the vast far flung European colonial empires (England, France and Spain) throughout the world.
Now as to the inviolability of the laws and amendments set forth in the constitution, the individual American states must follow those laws specifically found therein, leaving to them the right to enact laws specific to their state only such as do not contradict those laws. Thus for example a resident of one state might pay a lower state excise tax at the gas pump than one from another state, or perhaps pay none at all [as in New Jersey until last year].
Now, it is obvious that according to our sages and the later authorities and especially where we have a constitutionally enshrined right, the government; whether it be federal, state or local has no right to restrict our religious practices. Notwithstanding it is up to us to practice safe health procedures in the course of our Synagogue attendance and to take care in every facet of our daily lives as well.
As I write these words there is even greater need to place our full faith in our Heavenly Father, from whom we seek Divine guidance as we pray to Him for the welfare of the government of these United States of America.
Finally, we pray to G-d that he deliver the entirety of humanity from this very difficult pandemic. May it be His will that we merit the arrival of Moshiach, speedily in our days.
Rabbi Yaakov Klass is chairman of the Presidium of the Rabbinical Alliance of America; rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn; and Torah Editor of The Jewish Press. He can be contacted at firstname.lastname@example.org and Rabbi@igud.us.