Haholchim B'Torat HaShem
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The Law of the Land Part 2
Haholchim B'Torat HaShem
Wednesday December 20 2017, 12:17 PM

We must ask a question as to where the authority of the secular authorities comes from in the first place. If you and I perform a business transaction, how does the government become a party to that? Many of the medieval authorities suggest that it is an outgrowth of the principle of "Hefker Beit Din Hefker" (the Court may legally declare any property as ownerless). Although this is referring to a standing (as opposed to ad hoc ) Beit Din of rabbis, the medieval scholars saw it as referring to any recognized authority. Another approach was suggested by RASHBA (1235-1310) who formulated the principle of "Social Contract" some four hundred years before Rousseau, who is usually credited with the idea. He sates that when men formed societies, they voluntarily ceded some rights to governments, for the benefit of all citizens. (We must contrast this with the view that individuals exist for the betterment of the regime. That is Fascism, but is nevertheless a feature of the ideology of certain groups in Israel). This would exclude a government which is imposed from the outside. Indeed, there are many quotes in Talmud that Roman tax collectors can, and should, be ignored. (I consider attempts by some commentators to "explain away" those statements as an attempt aimed at not arousing governemnt anger). Another issue is if a law is discriminatory. A tax, levied on one segment of society, but not on another, is invalid. The Talmud already makes clear "the law of the Kingdom is the law, but not royal robbery". Another suggestion is that in every monarchy, the King, at least on paper, owns all of the real and movable property in his Kingdom. All property is his. Any misappropriation of property is robbing from the King. This begs two questions, which rabbis tend to avoid, at least publicly.. First, does the principle of "Dina D'Malchuta" apply in a society without a King? Second, does the principle apply only to financial matters. If the government makes a law against underage drinking, for example, should a synagogue not serve wine at a Shabbat event? The general view I have seen among poskim is that we must obey the laws of a democratic society as well (some differ; to be discussed next time), but we need not follow legislated morality; although not blatantly flaunt it, so as to appear rebellious. These, and related issues, will be discussed more next time.

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