Question: I’ve been told that I should follow all the directives of the government during the current pandemic even though these directives seem to impinge upon our religious lifestyle. I’ve heard that dina d’malchuta dina is the overriding factor here. Is that so?
Zelig Aronson
Answer: Our sages (Avot 3:2) tell us: “One should pray for the welfare of the government, for if not for fear of it, each man would swallow his fellow alive.” In other words, without a government, society descends into lawlessness.
And today, we are actually seeing mass acts of lawlessness as part of what will surely go down in history as one of the largest insurrections in this country. There have even been calls in some localities to defund their police departments, and, sadly, these calls have been partially heeded in several places.
It would therefore be foolhardy to side with those who attack those entrusted by society to protect us. Indeed, “dina d’malchuta dina – the law of the land is the law” (a ruling of Shmuel – Gittin 10b) means that a person must be very scrupulous to follow all the laws set in place by the governing authorities for the entire populous under their jurisdiction.
However, this rule is limited to civil, monetary matters, such as laws relating to currency and taxes, and obviously criminal matters as well.
The Shach (Choshen Mishpat, 73:39) writes, “Dina d’malchuta dina applies in matters that benefit the king or the state in instances where there is no clear halacha. It does not mean we rule according to the law of the land if it contradicts the laws of the Torah….
“And the law of the land only applies in matters relating to commercial transactions [e.g., taxes, customs and duties, levies, etc.]…but as for other matters [i.e., religious restrictions] that affect the Jewish people, the law of the land does not apply, for if it did, we would bear witness to the nullification of the Torah and mitzvot.”
As for matters that benefit the king, the Rashbam (Bava Batra 54b, sv “Mi amar Shmuel hochi”) writes: “The reason that Shmuel’s ruling stands is because the people have accepted upon themselves the usual laws and judgments a king imposes. The law of the land is the law precisely because the people have accepted it.” Obviously, if an autocratic leader or regime usurps the rights of the populace, we aren’t bound by the rule of dina d’malchuta dina.
The Ran (Nedarim 28a, “B’moches ha’omed me’eilav”) explains dina d’malchuta dina a bit differently. Indeed, he writes that it applies only to the laws of gentile kings because they own the land they govern (see also Rosh, Nedarim, chap 3:11). It does not apply to a Jewish king in the land of Israel where every Jew is a partner in the land.
The Rashba (Novella, Nedarim 28a, sv “B’moches”) goes even further: “A Jewish king in the land of Israel is no different than any other person under his reign as all are partners in the land.”
Today, we live in democracies where the government doesn’t own the land we live on. The citizens even own the streets as well as the public infrastructure with the government managing all these spaces on our behalf. Thus, the overarching law of dina d’malchuta dina has limited application according to these Rishonim.
In Sefer Otzar Dinim U’Minhagim (p.84), Rabbi Yehuda Dovid Eisenstein notes that our sages say “halacha k’Shmuel b’dini – the halacha follows Shmuel in din,” which clearly indicates that dina d’malchuta dina only applies in monetary matters. He also notes that it doesn’t apply if a king changes age-old rules or imposes different rules for some localities.
But isn’t that exactly what we’re seeing now? Aren’t government officials designating certain areas “red zones” even though the rate of infection is sometimes higher in non-red zones?
Rabbi Eisenstein adds that a gentile king (or modern-day civil authority) also obviously may not nullify the laws of the Torah – laws for which Jews were ready to die and indeed suffered torture and endured death over the course of our long history.
Citing the Rivash (Responsum 171), he adds that civil authorities have no right to place a rabbi as a religious functionary over the community who will issue halachic directives if the majority of the community objects. And an individual who accepts such a position contrary to the community’s desire is guilty of causing distress to the community and will be held to account in the future by Heaven for his actions.
It’s important to note that despite dina d’malchuta dina, a Jew must always make a claim against another Jew before a beit din, not a secular court. (And in most instances where two parties agree to beit din arbitration, the beit din’s rulings are recognized and supported by secular courts.)
The framers of the United States Constitution were G-d-fearing men and wanted the newly sovereign nation to provide religious freedom for all. Thus, 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 in it, that it has not only benefited our citizens but has served as a model for many of the democracies that arose throughout the world in the modern period.
Individual American states must follow the laws of the Constitution. Thus, according to our sages, later halachic authorities, and the Constitution, the government – whether it is federal, state, or local – has no right to restrict our religious practices. Notwithstanding this fact, however, we must adhere to safety procedures in every facet of our daily lives.
Of course, there is even greater need to place our full faith in our Heavenly Father, from whom we seek guidance. We pray for the welfare of the government of the United States of America and pray to G-d that he deliver all of humanity from this very difficult pandemic. May it be His will that we merit the arrival of Moshiach, speedily in our days.