Ultimately, the relationship between Halacha and societal law is the longest-running case study of a religious minority—one that is often persecuted and oppressed—struggling to maintain its identity while simultaneously trying to engage in and contribute to the broader society. Through it all, Halacha has acted as both the protector of the Jewish faith and the bridge between the Jewish community and the societies that it has encountered. While this story is far from over, I hope this paper can provide some insight into how Jewish law perceives secular law, the secular state, and its relationship to both.
Halacha—A Religious Legal System
Before we can understand how Halacha understands secular law, we must first examine the structure of Halacha itself and the role it plays in Jewish life. Halacha is as ancient as the Jewish people and has, by and large, maintained its structure since it was first developed. Originally, Halacha was divided into two parts; the written code, which is contained in the five books of Moses (the Pentateuch), and the oral accompaniment, which was to be passed down through the generations from teacher to student. However, following the destruction of the Second Temple, the rabbinical sages feared that the oral tradition would be forgotten and decided to redact it for future generations in the form of a codified text known as the Mishnah. Over the subsequent millennia, various rabbinical authorities expanded on the Mishnah in works such as the Talmud, Mishnah Torah, the Tur and Rabbi Yosef Cairo’s code of Jewish law known as the Shulchan Aruch to clarify the laws, eliminate textual obscurities, and preserve the integrity of the halachic tradition. This body of literature, along with numerous other works and commentaries, allows us to not only understand the individual practices required by Halacha but also the underlying perspectives that shape them.1
At its core, Halacha is a legal code that is intended to guide every aspect of Jewish life. From individual religious practices to complex business disputes, Halacha has thoroughly mapped the various situations in both personal and communal life where direction would be required and provided guidelines for how to navigate them. Halacha is far more than just a religious manual or a legal system; it is a comprehensive rendering of the Jewish perspective on the totality of life’s experiences.2
Halacha does not distinguish between church and state. On the contrary, the religious aspect of Judaism plays a dominant role in all areas of communal life, including political structures and civil proceedings. Examples of this include the necessity for witnesses and judges in a Jewish court to be free of sin,3 the requirement for Jewish kings to write and carry a Torah scroll (Deut. 17:18–20), and the civil status of “a person in good standing” (chezkas kashrus) being closely tied to their religious conduct.4 This fusion of religious practice and day-to-day life has resulted in a social dynamic where civil proceedings are religious in nature and the culture of religious observance has immense social significance. Thus Halacha cannot be limited to any specific area of practice—be it religious, legal, or social. Rather, it is the determiner of all areas of Jewish life, both communal and individual; and throughout the generations, Jewish communities have drawn deeply from this principle to both structure their internal workings and define their relationships with other communities.5
Halacha and the Jewish People Through Time
In biblical Israel, Halacha served as the state legal system for the two Jewish commonwealths. Since the destruction of the Second Temple and subsequent exile, it has become a code of religious law for practicing Jews and Jewish communities. During the temple era, when Halacha was the law of the land, Jewish courts, known as Botei Din, would rule on religious matters, civil disputes, and everything in between. The religious aspects of Halacha were prominent in public life, and the clerical element of the people—rabbinical judges and the priestly class—enjoyed a large degree of political power. With the backing of the state coupled with widespread buy-in from the nation, the observance of Halacha in the temple era was an entrenched social institution that was central to all state functions.6
With the destruction of the Second Temple and the transition into exile, the role of Halacha in Jewish life was forced to change from state law into religious law. Prior to the exile, participation in the halachic sphere was not voluntary insofar as it was mandated by the state. However, once the state was destroyed, the level of halachic observance was determined by each person’s individual commitment to the Jewish faith and practices.
Appreciating that the dynamics of Jewish life were about to change for the foreseeable future, the rabbis understood that Halacha would have to adapt to survive. Furthermore, they also recognized that the Jews would become subjects of foreign governments and legal systems that were not based in Halacha.7 This reality necessitated the rabbis to take a hard look at the future and consider two critical questions:
- How would the Jewish people maintain their loyalty to the Jewish faith and halachic lifestyles while living in foreign lands?
- What level of halachic obligation do Jewish people have to obey secular law—especially when residing in a polity that is unfriendly toward Jews?
The first question was addressed through the institution of a series of policies and practices that were designed to guarantee the survival of the Jewish religion and identity. Practices such as daily communal prayer,8 the establishment of a fixed lunar calendar,9 and designation of rabbinical courts for communal disputes10 ensured that the Jewish people would remain committed to the faith of their ancestors and maintain a sense of community through the coming centuries of exile.
Additionally, the rabbis altered the tone of halachic discourse to reflect the reality that the Jewish people were no longer in absolute control of their own communities. Regional politics, Jewish interactions with non-Jews, and the reliance on community leadership as opposed to national leadership became key considerations when determining important decisions in Halacha.11 Over time, the structure of Halacha changed from being geared toward a staterun legal system to a code of religious law that accounted for the changed circumstances of the Jewish people—a people with their own laws yet beholden to outside governance that affected their ability to maintain their own legal system.
Regarding the second question, the rabbis compiled a section of Halacha that addressed state law/ secular law, which is known as Dinah d’Malchusa. This collection of laws addressed the halachic conception of foreign states, the categories of laws they create, and the level of halachic obligation that Jewish people have to state legal systems. This category of Halacha would prove invaluable for
the exiled Jewish nation that was struggling to balance its responsibilities to its faith with its civic obligations to new places of residence.12
Dinah d’Malchusa—The Law of the Land
It is the opinion of most halachic authorities that the laws of Dinah d’Malchusa are sourced in biblical principles and are not a rabbinical mandate.13 However, as Dinah d’Malchusa only became a relevant halachic topic when the Jewish people were sent into exile and prolonged residency in foreign lands, its halachic treatment begins in the Talmud, which was compiled long after the destruction of the With the destruction of the Second Temple and the transition into exile, the role of Halacha in Jewish life was forced to change from state law into religious law. Second Temple. That said, despite its late introduction to the halachic canon, the sages made sure to demonstrably connect it to existing halachic practices and rulings to ensure its legitimacy and acceptance.14
The talmudic sages determined that foreign legal systems are halachically binding and that state law applies to all the inhabitants of the state—Jews included. This principle, known by its Hebrew title Dinah d’Malchusa Dinah (literally translated as “the law of the regime is law”) is attributed to the talmudic-era sage Shmuel and is quoted in multiple places in the Talmud. The significance of Dinah d’Malchusa is that it halachically obligates Jewish people residing or spending time in non-halachic polities to abide by the law of the land beyond the local legal obligation to do so. That said, Dinah d’Malchusa is not a given, and its scope is determined by the character of a state government and the kinds of laws it enacts.15
The Halachic View of Law and State
Halacha believes that law is a fundamental tenet of society and that an effective legal system is a critical requirement for any functioning civilization. The Torah instructs the Jewish people to establish judges and police officers in all of their “gates” to educate the people regarding the law and to enforce it (Deut. 16:18). Beyond the Jewish obligation to establish courts, one of the seven Noachide laws is dedicated to non-Jewish societies creating and maintaining functioning legal systems.16 This imperative for a law-abiding society is the cornerstone of the halachic perspective regarding Jewish legal obligation when residing in non-Jewish societies.
The Mishnah states that Jews should “pray for the security of the regime, for without it, man would swallow his fellow alive.”17 The Bartenura, one of the foremost commentators of the Mishnah, notes that this observation applies not only to Jewish states but to non-Jewish governments as well.18 He refers the student to a passage in the Talmud that relates an anarchistic society to that of the sea.19 In the sea, the bigger fish swallow the smaller fish without fear of repercussions. The same is true for a lawless society where people can do as they please.
It is interesting to note that the Bartenura does not draw a distinction between governments that are friendly to Jewish communities and those that are hostile. In fact, throughout history, many of the societies where Jews resided were discriminatory and oppressive. As a case in point, for much of his life, the Bartenura himself lived in Jerusalem, where Jews were required to pay a special Jewish tax to the local Islamic regime.20 Yet despite this legislative persecution, he quietly cautions that a regime of law and order—even one that discriminates against Jews—is preferable to anarchy.
That said, Halacha does not consider all state governments to be equal, and draws distinctions between regimes that hold the “will of the people” and tyrannical governments that do not. The Shulchan Aruch—the codification of Halacha by Rabbi Yosef Cairo—quotes Maimonides, who states that Dinah d’Malchusa only applies in a regime where the king’s image is minted on the coins, as this means that the governed consent to the ruler and thus are not a state of slaves. However, if the king’s image is not on the official currency, then it is clear the king does not have the consent of the governed and is akin to an armed bandit and considered to be a thief in all regards.21 Maimonides’s assertion that the government must have the consent of the governed is the dominant opinion of Halacha and is an integral requirement for the application of Dinah d’Malchusa.22
Historically, Halacha’s discussion of state governments typically examined monarchies.23 The aforementioned distinction between different kinds of monarchies reads very similarly to Louis Althusser’s interpretation of Montesquieu’s differentiation between consensual monarchies that rely on the goodwill of the people and noble classes, contrasted by despotic regimes held together artificially by the will of a despot.24 This relationship between the ruler and the people determines the application of Dinah d’Malchusa and the halachic obligation for Jews to obey the law of the land. However, the question of Dinah d’Malchusa applying to democracy is not discussed in the Shulchan Aruch and is a more contemporary issue that has arisen together with the emergence of democracy as a geopolitical mainstay.
Despite its lack of mention in the core halachic literature, the overwhelming consensus of contemporary rabbinic authorities is that Dinah d’Malchusa applies to democratic states as well as monarchies. The late Rabbi Ovadia Yosef, one of the leading halachic decisors of the twentieth century and former Sephardic Chief Rabbi of Israel, offers two halachic arguments to support the position that Dinah d’Malchusa includes democratically elected governments and legal systems.25
The first is a critical examination of a talmudic discussion in the Tractate Bava Kamah.26 The Mishnah in Bava Kamah states that a person cannot exchange coins from the boxes of customs collectors or the purses of tax collectors because the money they acquire is considered stolen. The narrator responds by quoting Shmuel’s assertion that the law of the land is law and that the money that the tax collectors levy should not be considered halachically stolen. The Talmud responds by qualifying the Mishnah, and explains that it refers to a tax collector who does not have a limit on the kinds of taxes they collect or that the tax collector is a strongman and is not empowered by a legitimate king. The Talmud continues and cites other similar cases where a Mishnah seems to indicate that assets collected by a tax collector are not legitimate acquisitions. Each time, the Talmud answers by qualifying the tax collector as an illegitimate collections officer that does not adhere to the rule of law.
Rabbi Yosef suggests that in this case the absence of evidence is indeed evidence of absence. He argues that had Dinah d’Malchusa not applied to democracies, the talmudic sages would have reconciled the apparent talmudic contradictions by asserting that the tax collector was operating on behalf of a democracy.27 Instead, the Talmud chose to disqualify the office of this particular tax collector as a way to explain the issue when a seemingly simpler option was available. Rabbi Yosef writes that this constitutes implicit proof that the talmudic sages believed that Dinah d’Malchusa applies to democracy.
His second proof, also from the tractate Bava Kamah, is drawn for an examination of the institution of Dina d’Malchusa itself.28 The Talmud quotes Shmuel’s assertion that the law of the land is the law. Rava offers a proof to this by arguing that if that were not the case, then the property seized for state infrastructure would be considered stolen goods and would be halachically forbidden for Jews to derive benefit from them. For example, if the government seized private lumber to build a bridge and Halacha considered that act to be theft, Jews would be forbidden from using that bridge as it was constructed from stolen materials. Rabbi Yosef argues that the same logic should apply to democratic states and, as we do not find a halachic designation of theft on state infrastructure constructed through taxation of the people (or eminent domain or other such seizure), it is safe to assume that they too are considered legally obtained.
Furthermore, there is a compelling case to argue that the criteria for Dinah d’Malchusa fit more naturally to democratic governments than to traditional monarchies. If we recall the halachic criteria for a king to have the people’s consent for Dinah d’Malchusa to apply, it should follow that if the people rule themselves through elected representation then the halachic obligation to obey the law should be even stronger. Regardless, whether the government is similar to the monarchies of old or the modern nation-states, as long as the government is a legitimate political power that holds the goodwill of the people, as far as Dinah d’Malchusa is concerned, its laws command a halachic obligation of respect and obedience.29
Scope and Breadth
Just as Dinah d’Malchusa differentiates between different kinds of governments, so too does it draw distinctions between various categories of laws.30 There are many differences of opinion among the halachic authorities regarding the extent to which state law is halachically enforceable, and to which kinds of law it applies. While a full treatment of Dinah d’Malchusa is beyond the scope of this paper, a general outline will provide insight into the character of Dinah d’Malchusa and how it informs the obligations of the Jewish community.
The generally accepted understanding of Dinah d’Malchusa is that it applies to laws that concern the state and state governance, as opposed to ad hoc discretionary decisions made by a regent. Laws that affect the physical land of the state, the criminal code, and currency are all included in the halachic umbrella that is Dinah d’Malchusa. Conversely, individual, one-time decisions made by a regent, such as punitive punishment for individual citizens, are not part of Dinah d’Malchusa and carry no halachic obligation for Jews to obey them.31
There is some dispute amongst the Poskim (rabbinic decisors) with regard to the application of this principle as it pertains to commerce and business. Some believe that all transfers of property—both land and movable—are subject to state laws and processes, while some hold that only processes involving land are part of the regime and are covered by Dinah d’Malchusa.32 There is a similar dispute regarding state seizure and whether a decree from the regent is enough to acquire property for the state or whether the state must make a legal act of acquisition in order to turn land into state property.33 Halacha also draws a distinction between the state government and the court systems. When it comes to the law, Halacha holds that decisions made by the courts are not considered Dinah d’Malchusa. While Jews are obligated to utilize the state-run court systems for dispute resolution between Jews and non-Jews, when it comes to the Jewish community, the Beth Din rabbinical court system is still the halachic method of conflict resolution.34
However, in Western societies where the court systems play an integral role in the interpretation of state law, there may be a strong argument to say that court decisions that affect the laws of the state should be considered part of state law and included in Dinah d’Malchusa. In places where the court decisions are limited to individual cases and not incorporated into the greater body of state law, as was the case in many places where Jews resided throughout history, the implementation of these decisions by Halacha would lead to the eventual nullification of the halachic code through ad hoc court decisions. Instead of using Halacha to adjudicate disputes, the Jewish community would have to consult state judges for every dispute, thus making Halacha irrelevant. Halacha obviously rejects this idea and does not actively contribute to its own demise.35 However, in countries where the judiciary is a mechanism of the state legislative process and functionally interprets laws of the state that are within the parameters of Dinah d’Malchusa, it is logical to assume that those decisions are considered equal to laws issued by a government and carry the same halachic obligation of obedience.
Taxation is another area of dispute among the Poskim. The generally accepted view is that taxes that have set limits, and methods of collection are included in Dinah d’Malchusa.36 However, taxes that are not fixed but rather determined by the whim of a regent or individual tax collectors are not considered legitimate state actions and are not covered by Dinah d’Malchusa.37 This determination of legitimacy extends to individual tax collectors—especially Jewish tax collectors—that collect taxes on behalf of the state. In the case of legitimate taxes, the tax collector is considered to be acting in the legal interests of the state, and the property he or she collects is not deemed to be stolen goods. Conversely, in a case of discretionary collection where the tax collector arbitrarily decides what to take and how much to take, the property collected is considered stolen and the tax collector a thief. If the tax collector is Jewish, then they would lose their Chezkas Kashrus (status of good standing) and would lose certain community privileges.38 In democracies where taxation is part of the social contract and understood to be for the common good, the halachic imperative to pay taxes is clear and not in question.
Conflicts Between Halacha and State Law
Both historically and contemporarily, conflicts between Halacha and state law have presented the Jewish community with a difficult set of challenges in navigating conflicting imperatives and obligations. The deep commitment to Halacha, balanced by civic and halachic commitments to state law, has resulted in a variety of challenging scenarios for the Jewish community. Over time, the halachic community has learned to recognize these situations and has developed policies for confronting them.