Sources:
Dina de-Malchuta Dina in a Democratic State
In Yechaveh Da’at, vol. V, no. 64, Maran, the Light of Israel, Rabbi Ovadia Yosef, zt”l, ruled that even in a “democratic” country—that is, a land not governed by a king, but by rulers elected by its citizens—we properly say dina de-malachuta dina. An actual king is not required; Jewish governmental authority suffices, as is found in the responsa of the Rashba, vol. I, no. 637. Accordingly, he ruled there in Yechaveh Da’at that one is obligated to pay taxes, municipal taxes, and the like to the government of the State of Israel. However, Torah scholars have a different ruling in this regard, as explained there in Yechaveh Da’at and in the responsa Yabia Omer. See there near the end of the cited responsum.
It is true that there is room to question the proof from the Rashba’s words for several reasons. Although Yechaveh Da’at does not explicitly discuss this matter, it cites the words of Maran the Chida, zt”l, in Knesset HaGedolah, Choshen Mishpat 369, Hagahot Beit Yosef, no. 10. There, the Knesset HaGedolah explains that the Rashba refers even to a ruler not appointed by another king. What the Rashba wrote, “appointed,” means appointed over the people, not appointed by a king; alternatively, it applies even when appointed by a king. The Rashba teaches that an actual king is unnecessary; any ruler suffices, even a Jewish one. He further maintained that the Rashba’s novelty is stated according to all opinions, not only according to the French Rabbis cited by the Rashba at the end of his discussion. The Knesset HaGedolah concludes that Rabbi Binyamin Ze’ev and Shiltei HaGibborim likewise agree with this understanding of the Rashba, contrary to the apparent simple reading of their words. See there. This is also how the Rivash, responsum 271, understood the Rashba’s view.
There is further basis for this understanding. If the Rashba had referred to a royal agent, the Gemara in Bava Kamma 113b explicitly states that a royal agent is like the king regarding dina de-malachuta dina. Likewise, if the Rashba’s words followed only the approaches that base dina de-malachuta dina on the king’s ownership of the land, then even private individuals would have binding law, as the Rosh writes, and there would have been no need to introduce the novelty that dina de-malachuta dina applies to a government that is not a monarchy. Moreover, in the responsa of the Rashba, vol. I, no. 612, he needed to define that if the government has authority to enact laws, dina de-malachuta dina applies. Had he referred to a royal agent, or to one who owned the land, such definitions would have been unnecessary.
In any event, it is reasonable that Maran Rabbi Ovadia Yosef also relied upon his conclusion that we rule like the Rambam regarding the definition of dina de-malachuta dina. As explained, with Hashem’s help, in our article concerning the views of the Rishonim on the reason and root of the law of dina de-malachuta dina, according to us, who rule like the Rambam and Maran the Shulchan Aruch, there is no need to rely primarily on the Rashba’s words. Based upon the very foundation of the reason we rule that dina de-malachuta dina, it is clear that an actual king is unnecessary. Indeed, according to the Rambam and Shulchan Aruch, even a ruler whose authority derives from a popular vote, and who is merely an agent of the citizens, is subject to dina de-malachuta dina. The Rashba’s responsum was cited in Yechaveh Da’at only because it is more explicit. Even if one were to reject proof from that Rashba responsum, the true law remains firmly established. See our discussion there, with Hashem’s help.
Dina de-Malchuta Dina in Eretz Yisrael Today
As is widely known, this matter contains an additional issue, addressed in the aforementioned Yechaveh Da’at. Even after establishing that dina de-malachuta dina applies to a democratic government, one must still investigate whether the same applies to the government currently ruling here in Eretz Yisrael, the State of Israel. Yechaveh Da’at cites Mishpat Kohen, no. 144, paragraph 14; Yaskil Avdi, vol. VI, Choshen Mishpat no. 28, section 2; and Amud HaYemini, vol. I, no. 7, which write that dina de-malachuta dina indeed applies in the State of Israel.
This is likewise the view of Rabbi Yosef Shalom Elyashiv, zt”l, as appears from Kovetz Teshuvot, vol. I, no. 206, and vol. IV, Choshen Mishpat no. 202. Rabbi Yitzchak Efrati, shlit”a, wrote this in his name in Yisa Yosef, Choshen Mishpat no. 40, based on several piskei din. Nevertheless, he later wrote that Rabbi Elyashiv preferred to avoid issuing a definitive ruling on the matter. Similarly, Rabbi Yitzchak Zilberstein, shlit”a, is quoted as saying that his father-in-law, Rabbi Elyashiv, had reservations about it. Still, from Rabbi Elyashiv’s own writings cited above, his view appears more inclined to say that dina de-malachuta dina does apply in the State of Israel, though he did not wish to publicize this ruling as an absolute certainty.
This was also written in Tzitz Eliezer, vol. V, no. 30, paragraph 4, at greater length in his work Hilchot Medinah, vol. I, gate 3. Beit Avi, Choshen Mishpat no. 143, cites Rabbi Yosef Eliyahu Henkin, zt”l, that dina de-malachuta dina applies in the State of Israel. Rabbi Shlomo Zalman Auerbach, zt”l, likewise ruled this way in Ma’adanei Eretz, no. 18, and also in Minchat Shlomo, vol. I, no. 35, paragraph 3. Although one might say that the latter source is only stringent, Ma’adanei Eretz clearly shows that his opinion was that dina de-malachuta dina applies in the State of Israel, without presenting another possibility even as a supporting factor.
Similarly, in the “Kuntres Shelosh Teshuvot,” p. 83, the holy Satmar Rebbe, Rabbi Yoel, zt”l, simply states that the State of Israel has the halachic status of a malchut, albeit a wicked kingdom, and that the lands are subject to it. Rabbi Chaim David HaLevi, zt”l, likewise ruled in Devar HaMishpat, Hilchot Sanhedrin ch. 24, that dina de-malachuta dina applies in the State of Israel. So too, Ma’amar Mordechai of Rabbi Mordechai Eliyahu, vol. I, no. 15, writes: “In principle, the laws of the State are valid.” Rabbi Chaim Pinchas Scheinberg, zt”l, was also of this view, as cited by his eminent disciple Rabbi Avraham Peretz, shlit”a, in HaChukei HaKesef, Sha’ar HaGezelah ch. 5, note 9. Rabbi Shlomo Daichovsky, shlit”a, former head of the Jerusalem Beit Din, likewise wrote this in a responsum printed in Techumin, vol. XVIII, p. 19.
Rabbi Yaakov Mutzafi, zt”l, likewise ruled this way, as cited in Siach Yitzchak, by Rabbi Yitzchak Batzri, shlit”a, on Gittin 10b. This is also stated in Be’er Sarim, vol. VI, no. 90, paragraphs 4 and 8; Baruch Omer Shem, Choshen Mishpat no. 122; Makor Ne’eman, vol. I, no. 829; Nezer Kohen, vol. II, Choshen Mishpat no. 42; Divrei Binyahu, vol. XVI, no. 59, paragraph 7; Mishpetei Avraham, vol. I, no. 38; and Amudei Mishpat, vol. II, no. 7. Our dear colleague, a graduate of our “Birkat Avraham” Beit Midrash, Rabbi Chaim Aflalo, shlit”a, also ruled this way in She’elot U’Teshuvot Asher Chanan, vol. V, Choshen Mishpat no. 22, and again in vol. VIII, Choshen Mishpat no. 218, as well as in She’elot U’Teshuvot Elkabetz, vol. I, Choshen Mishpat no. 2.
Rabbi David Bar Osher, shlit”a, a precious member of our institutions, likewise writes in the fourth volume of Vayizkor Yosef, p. 514, drawing from the Torah of Maran Rabbi Ovadia Yosef, zt”l. See also what Rabbi Avraham Maimon, shlit”a, another graduate of our Beit Midrash, writes in Mishnat Avraham on Even HaEzer no. 85, p. 461, and what he cites from Netzach Yisrael, no. 33.
The view of Rabbi Moshe Feinstein, zt”l, cited in Mesorat Moshe, vol. IV, p. 439, is that the State of Israel has at least the status of the seven communal leaders, whose enactments the residents of the country are obligated to heed. Whether dina de-malachuta dina applies is not so consequential, because it is otherwise needed only for laws enacted for the king’s own benefit. In general, Rabbi Moshe Feinstein ruled in Igrot Moshe, Choshen Mishpat vol. II, nos. 29–30, that dina de-malachuta dina applies in the democratic United States.
Rabbi Moshe Sternbuch, shlit”a, similarly writes in Teshuvot VeHanhagot, vol. III, no. 338, that when the laws of the State of Israel are “for the benefit of the public and consistent with Torah law, even though they are coercive, they are no less valid than a non-Jewish ruler, whose authority is valid even in monetary law; authority is entrusted to every community where this is for our benefit.” In vol. VI, no. 291, regarding payment of taxes in the State of Israel, he ultimately writes to divide the amount between the percentage used for beneficial purposes and the percentage designated for prohibited purposes. Rabbi Avraham Shapira, zt”l, likewise wrote in Techumin, vol. III, p. 238, that the laws of the State have force under the laws of communal enactments.
See also Rabbi Moshe Halberstam, zt”l, author of Divrei Moshe, in a responsum printed in Mishnat Zechuyot Yotzrim, p. 122: “We rule that every enactment benefiting craftsmen that does not contradict Torah law, and that by force of dina de-malachuta is an established law—we are, according to all views, obligated to uphold dina de-malachuta, even in Eretz Yisrael.”
In Minchat Yitzchak, vol. VII, no. 126, however, Rabbi Yitzchak Yaakov Weiss, zt”l, was uncertain, writing that “there is room to discuss the very principle of dina de-malachuta in this state, whose laws are taken from non-Jewish law, to our great sorrow.” He wrote similarly at the end of no. 138, but did not explain the grounds of his uncertainty. This claim is difficult to understand, for all agree that even in non-Jewish kingdoms, laws contrary to Torah law are not binding through dina de-malachuta dina. Moreover, regarding laws between one person and another, Maran the Shulchan Aruch—and arguably the Rema as well—holds that dina de-malachuta dina does not apply even under a non-Jewish king. The primary discussion concerns taxes and the like, collected for technical public arrangements benefiting citizens. Why should their validity be undermined because those arrangements were copied from non-Jewish systems?
Rabbi Ben-Zion Abba Shaul, zt”l, writes in Or LeTzion on Ketubot, vol. I, addenda at the end of no. 4, that one may combine the view that dina de-malachuta dina applies; the discussion there concerns Eretz Yisrael because it concerns shekels. See also Or LeTzion, vol. IV, ch. 36, paragraph 4. However, Mishpat Tzedek אילן, no. 5, note 36, states: “I heard in the name of Rabbi Ben-Zion Abba Shaul that dina de-malachuta in the Land remains a dispute and uncertainty, and the burden of proof rests upon one who seeks to extract from another.” This was likewise heard from Rabbi Elchanan Peretz, shlit”a, in the name of Rabbi Aharon Abba Shaul, zt”l, in the name of his father, Rabbi Ben-Zion Abba Shaul, zt”l.
Regarding the Claim That Government Officials Do Not Observe Torah and Mitzvot
The aforementioned Yechaveh Da’at cites Pe’at Sadeh, vol. I, no. 91, which suggested that regarding the Knesset, among whose elected members are people who breach the bounds of our nation and opponents of religion, one cannot say that their laws are subject to dina de-malachuta dina. Later, he partially retracted and gave validity to State laws based on the principle that “the heart of the Beit Din stipulates,” but not based on dina de-malachuta. Maran Rabbi Ovadia Yosef responded: “However, his words are not correct halachically, for even regarding a wicked king and an idolater, the rule of dina de-malachuta dina applies, as explained in Tosafot, Sanhedrin 20b, and in the holy Zohar, Parashat Vayeshev 192b.” Rabbi Shlomo Daichovsky, zt”l, in Techumin, vol. XVIII, p. 20, likewise accepted Maran’s rejection of the Pe’at Sadeh position.
In Divrei Yosef Avitbol on Nedarim, p. 40, the author attempted to reject, according to his understanding, the rejection of the author of Yechaveh Da’at: “One should not challenge this from Tosafot in Sanhedrin and from the holy Zohar in Parashat Vayeshev, which state that even regarding a king who worships idols, his law is the law of the kingdom, for idolaters are different.” This is entirely unclear: in what way is an idolater preferable to other wicked persons? Perhaps he intended to refer to a non-Jew, mistakenly assuming that Tosafot in Sanhedrin discuss a non-Jewish king. This is not so, since Tosafot there discuss King Achav, as is evident.
In Amudei Shesh on Bava Kamma 113b, Rabbi Yitzchak Tofik, shlit”a, challenged Yechaveh Da’at, arguing that Tosafot’s words regarding King Achav concern the passage of the king, not dina de-malachuta dina. Yet this overlooks the heart of the discussion: we rule like the Rambam and Maran the Shulchan Aruch, who hold that the passage of the king is itself dina de-malachuta dina. As explained at length, with Hashem’s help, in our article concerning the root of the authority of dina de-malachuta, take it from there and apply it here.
[Although according to Tosafot, dina de-malachuta dina is not based on the passage of the king, their words provide proof for us nonetheless. We see from Tosafot that everything Shmuel HaNavi, peace be upon him, stated in the passage of the king applies even to a wicked king. Therefore, according to the Rambam, when Chazal use the expression dina de-malachuta dina, they refer to what Shmuel HaNavi stated in the passage of the king; and that passage was said even regarding a wicked person. Furthermore, Yechaveh Da’at also cited proof from the holy Zohar, which is among the words of Chazal. The Rambam and Maran the Shulchan Aruch must hold that the Zohar also agrees that the passage of the king is dina de-malachuta, for they do not dispute Chazal. The Zohar says there that Achav was punished not for taking Navot’s vineyard, because the Torah law established by Shmuel permitted the king to take fields, vineyards, and the best olive groves; rather, he was punished because he killed Navot unlawfully and took his vineyard. Thus, the holy Zohar plainly holds that the passage of the king in Sefer Shmuel applies to Achav as well.]
In Birkat Aharon Wolberstein, chapter Eizehu Neshech, Kuntres Dina de-Malchuta, paragraph 7, the author cites the aforementioned Yechaveh Da’at and, in order to reject its rejection and uphold the position of Pe’at Sadeh, innovates that nowadays there is a king regarding dina de-malachuta dina but no king regarding the passage of the king. Only the passage of the king applies even to a wicked Jewish king, he claims, but not dina de-malachuta. Yet, as will be explained below, the author of Yechaveh Da’at rules like the Rambam and Maran the Shulchan Aruch, that dina de-malachuta dina is the passage of the king. Rabbi Birkat Aharon himself recognized this in the Rambam’s view. Therefore, for us there is no room for these distinctions, and the pleasant words of Yechaveh Da’at remain in force.
In Darkei Mishpat Nidam, Hilchot Shecheinim ch. 13, note 6, another challenge was raised: Tosafot and the Zohar speak of King Achav, who became king by inheritance, and therefore all the laws of kingship applied to him; but dina de-malachuta dina, based upon the reasons mentioned by the Rishonim, depends upon the Sages’ assessment, and if in their assessment royal authority should not be granted, it was not granted. Thus, what is the authority of the State of Israel’s government? This challenge assumes that dina de-malachuta dina follows the rationales presented in our aforementioned article, namely that the Sages gave a kingdom authority for its laws to be binding. But this is not the Rambam’s or Shulchan Aruch’s view. They maintain that dina de-malachuta dina derives from the passage of the king. According to the Rambam in Hilchot Gezelah, that passage applies to every ruler accepted by the people. There is no distinction between an inherited king and another ruler, since even an inherited king has the status of king for this purpose because of the people’s acceptance, not because of inheritance. Certainly, one elected by the people has this status. If the claim is that acceptance of a wicked ruler is ineffective, Yechaveh Da’at proved from Achav that it is effective.
Moreover, according to what we demonstrated regarding the Rambam, the “king” mentioned regarding the passage of the king—and thus dina de-malachuta—is not necessarily a fixed personal concept. It is possible that the Prime Minister or individual ministers need not be regarded as the king; rather, the institution called the parliament, the Knesset, may itself be included in the category of king, since this is what the people accepted. This can apply even though it is not one particular human being. The term is the law of the kingdom, for the kingdom is the juridically meaningful concept, not the physical person of the king. Thus, the claim of wickedness or casting off the yoke does not apply to the institution itself, which is not a human being. In any case, Yechaveh Da’at already rejected the claim of wickedness broadly and did not need these definitions.
Regarding Those Who Maintain That Dina de-Malchuta Does Not Apply in the State of Israel
Know that those who definitively maintain that dina de-malachuta dina—and even the law of the seven communal leaders—does not apply in the State of Israel are, almost entirely, based on reports or on books that ruled so in reliance on such reports. Foremost among them is the oft-repeated report in the name of the Chazon Ish, zt”l, cited in Pe’er HaDor, vol. III, p. 296, that dina de-malachuta dina does not apply in Eretz Yisrael because the State is like a tax collector who arose on his own—that is, it lacks the people’s acceptance and is therefore not a kingdom but coercion.
Pe’at Sadeh, vol. I, no. 91, likewise reports this in the name of the Chazon Ish, but rejects the claim: “A tax collector who arose on his own is different, for presumably there is a king in his place and the collector is acting unlawfully. But for us, where there is no king at all and our own power is not strong, should we allow each man to swallow his fellow alive?” For some reason, authors cite Pe’at Sadeh only for the report in the name of the Chazon Ish, without mentioning that he rejected the claim with sound reasoning. Particularly since, as already explained, the Rambam and Shulchan Aruch expressly state that the criterion distinguishing an independent tax collector from a king accepted by the people is whether his currency circulates. The currency of the Israeli government certainly circulates.
In Emunat Itecha, Shevat 5778, p. 150, it was suggested that the Chazon Ish’s statement that the State was like a tax collector who arose on his own was said shortly after the State’s establishment. After decades during which this government has existed and the public has accepted the reality, even the Chazon Ish would agree that dina de-malachuta dina applies. This is difficult, since a tax collector remains a robber even after many years. Perhaps the intent is that the people not only despaired of changing the situation, but ultimately desired the reality of a government; thus, what began under compulsion ended with willing acceptance.
In Nezer Kohen, vol. II, Choshen Mishpat no. 42, paragraph 12, Rabbi Zion Kohen, shlit”a, explains this more clearly. At the State’s founding, the Jewish underground groups were contending with one another, there was armed conflict and instability, the country was at war with the Arab inhabitants and surrounding states after the British departure, the government and its small citizenry faced grave danger, its currency was highly unstable, and disorder prevailed. Therefore, the Chazon Ish could reasonably have regarded that government as akin to an unauthorized tax collector. The Chazon Ish passed away on 15 Cheshvan 5714, only about five and a half years after the State’s establishment. Today, however, the government is institutionalized, its currency is established, and the affairs of the inhabitants are conducted through it. Since the Rambam and Shulchan Aruch state that this determines public acceptance of a government, it is reasonable that even according to the Chazon Ish, dina de-malachuta dina now applies.
Yet this reasoning applies only to the rationale of an unauthorized tax collector. In an unpublished manuscript, Din Torah, by Rabbi Ariel Meir, shlit”a, a precious member of our “Birkat Avraham” Beit Midrash, the author cites Rabbi Moshe Weber, shlit”a, in his approbation to Hilchot Chag BeChag, Yom Tov vol. II. Rabbi Weber relates that the Chazon Ish was asked whether reporting someone to the police for smuggling merchandise without paying customs was considered handing over money not rightfully due to the government. The Chazon Ish answered that it indeed was handing over a fellow Jew’s money that the government was not rightfully entitled to receive. When asked whether this was based on the Ran in Nedarim 28a, who writes that dina de-malachuta dina does not apply in Eretz Yisrael, he replied that this was indeed his intent. If so, the Chazon Ish would rule this way even nowadays, because the Ran’s view in the name of Tosafot remains relevant.
However, if the Chazon Ish’s rationale is the Ran’s view rather than an unauthorized tax collector, this applies only to Ashkenazic Jews. For us, who follow Maran the Shulchan Aruch, who rules like the Rambam and not like the Ran, there is no place for the Chazon Ish’s ruling. See also Halichot VeHanhagot Imrei Sofer, gate 3, miscellaneous matters, note 9, which relates that Rabbi Zalman Sofer, zt”l, asked the Chazon Ish whether one could refrain from paying taxes in Eretz Yisrael in order to use the money for tzedakah, or whether dina de-malachuta dina applied. The Chazon Ish answered that the Ran in Nedarim 28a writes that dina de-malachuta dina is not said in Eretz Yisrael. He added that this permits only refraining from payment, not taking money from them unlawfully.
Mamlechet Kohanim VeGoy Kadosh, p. 397, states that the principal reports attributed to the Chazon Ish on this matter are inaccurate, and that the listener heard but did not understand the depth of the matter. Rabbi Dov Yaffe, zt”l, who frequented the Chazon Ish’s home, reportedly witnessed a case in which the Chazon Ish ruled that the halachah follows Tosafot cited by the Ran in Nedarim: Jewish kings are not entitled to impose customs duties and the like. Rabbi Chaim Greineman, zt”l, similarly reportedly stated that the law depends upon this dispute among the Rishonim. Rabbi Yitzchak Efrati, shlit”a, writes in Yisa Yosef, Choshen Mishpat no. 40, that it is reported in the name of the Chazon Ish that governmental authority in Eretz Yisrael lacks the force of dina de-malachuta, and that he considered it an unauthorized tax collector. Rabbi Efrati notes that it requires investigation whether this refers to the Ran’s view that dina de-malachuta does not apply in Eretz Yisrael, with the phrase “unauthorized tax collector” used figuratively, or whether he literally viewed it as a tax collector rather than a government.
Nevertheless, it is somewhat difficult, because in Chazon Ish, Choshen Mishpat, Likkutim no. 16, the Chazon Ish writes, at least under British rule, that dina de-malachuta dina applies in Eretz Yisrael, seemingly contrary to the Ran’s view in the name of Tosafot. Perhaps he held that the Ran agrees that under a non-Jewish king in Eretz Yisrael, dina de-malachuta dina applies.
There are additional reports in the name of great Torah authorities. Rabbi Yitzchak Ze’ev HaLevi Soloveitchik of Brisk, zt”l, is cited as maintaining that the laws of the State of Israel have no halachic significance. Rabbi Nissan Karelitz, zt”l, is also reported to have held that dina de-malachuta dina does not apply in the State of Israel, as cited in Chut Shani, Darkei Mishpat Nidam, and Dibrot Yaakov. Rabbi Yaakov Yosef, zt”l, was likewise of this view. Vayomer Shmuel, no. 63, note 9, writes: “We have received from our teachers that the State of Israel does not have the law of dina de-malachuta dina.”
Yet if it is difficult to rely on reports generally, it is all the more difficult in this subject. Maran Rabbi Ovadia Yosef, zt”l, wrote in Yabia Omer, vol. VI, Orach Chaim no. 11, paragraph 6: “One should not believe everything reported in the name of the Chazon Ish.” Rabbi Chaim Kanievsky, zt”l, likewise said that one should not rely on everything said in the Chazon Ish’s name. Furthermore, even those who hold that dina de-malachuta dina applies in the State of Israel recognize many exceptions: matters between one person and another, secular courts, interpretations of law, every law inconsistent with Torah law, taxation of Torah scholars—including kollel students—and seizure of a debtor’s assets, among other matters. Therefore, people who heard particular rulings from those great authorities may assume that they generally denied dina de-malachuta in the State of Israel, when in fact they may have referred only to the particular areas about which they were asked.
Indeed, Divrei Siach BeMishnatam Shel HaChazon Ish, p. 16, records that Rabbi Chaim Kanievsky, zt”l, was asked whether dina de-malachuta dina applies in Eretz Yisrael. He answered in the name of the Chazon Ish: “If they enact something that even a proper Beit Din would have enacted, it is possible that dina de-malachuta dina applies.” Accordingly, even with regard to taxes, the Chazon Ish may have agreed that evasion can be prohibited, in line with the ruling of Yechaveh Da’at. Rabbi Shlomo Zalman Auerbach wrote in Minchat Shlomo on Nedarim 28a: “Why should it be permitted to evade customs duties and the like? After all, it is a rational matter, and it is possible that even had they consulted the seven communal leaders, they would have enacted it.” Rabbi Menachem Mendel Shafran, shlit”a, also notes that even under a government without dina de-malachuta dina, concealing taxes and customs is forbidden, because the money is not considered the government’s personal property but the property of the country’s citizens; the government is merely a guardian distributing it, and it is like a partnership fund. Theft from Jews is forbidden according to all opinions.
Regarding Rabbi Menachem Mendel Shafran’s own view, see his responsum in HaYashar VeHaTov, vol. XIV, p. 22, where he defines the matter as uncertain, because Rabbi Yehudah Silman, shlit”a, wrote in Darkei Choshen that dina de-malachuta dina does not apply in the State of Israel. Many contemporary writers followed Darkei Choshen in this matter because of the author’s great stature. However, as mentioned, his words are based on an important and novel understanding of the Rambam, which does not accord with the understanding of many earlier and later authorities.
Finally, concerning the report in the name of the Chazon Ish, some who challenge it may have personal interests, as stated in an unpublished manuscript of Din Torah: their dealings with the authorities are based upon implementing State laws. Yet many who cling to the report in the Chazon Ish’s name do so because they seek to permit themselves or their institutions to deal with government funding in ways not always compliant with the stated criteria. They cite this report as if it were Torah from Sinai, applying it universally and without qualification. Others believe that a pure Torah outlook requires dismissing the State entirely, and therefore accept reports uncritically. They do not realize that the halachic issue here has nothing to do with outlook. Even the Satmar Rebbe, Rabbi Yoel, zt”l, held that dina de-malachuta dina applies in the State of Israel, for even if it is a wicked kingdom, it remains a kingdom.
Mishneh Halachot, vol. V, no. 112, writes that dina de-malachuta does not apply to “secular rulers” in Eretz Yisrael. Yet close examination of his illuminating words together with his sources shows that he ruled this, as a practical ruling, only regarding matters not included in the passage of the king. According to what has been explained, dina de-malachuta dina applies only to matters included in the passage of the king. Thus, according to the Rambam and Maran the Shulchan Aruch, it applies only to matters benefiting the king, such as taxes, municipal taxes, and the like. According to those who broaden the definition of the king’s benefit, that broader category is likewise included in the passage of the king.
Poskim Who Refrain From Revealing Their View
In Shevet HaLevi, vol. V, no. 172, although he was asked about this issue, Rabbi Shmuel HaLevi Wosner, zt”l, sought to avoid a ruling and found a way to validate the State’s actions in the particular case without relying on the category of dina de-malachuta dina. He merely added that stealing from the State is forbidden according to all opinions. He responded similarly in several responsa, vol. V, no. 194, and vol. X, no. 291. However, in vol. VI, no. 243, in a responsum by his son published in the work with his approval, he simply states that dina de-malachuta applies even regarding ownership of an apartment. The question there mentions payment of two hundred thousand shekels, one-fifth of the house price, suggesting that it concerns Eretz Yisrael.
In truth, many avoided ruling explicitly on dina de-malachuta in the State of Israel, or at least avoided explicitly recording their view, for clear reasons. On one hand, ruling that dina de-malachuta dina applies may appear as Zionism and may mistakenly become a double-edged sword for those seeking to create an aura of “holiness” around the State. On the other hand, ruling that it does not apply may appear to be incitement against the authorities, and some fear publicizing such a ruling. Third, whichever way one rules, there are many exceptions on both sides, so every matter must be examined individually and no ruling can be sweeping. Fourth, the parameters of this subject in Shas and the Poskim are very unclear. As Hashiv Moshe of Satmar, no. 90, writes: “There is great confusion among the Poskim in this matter and many contradictions. Sometimes they raised the banner of monarchy to the heights, and sometimes lowered it to the dust. I have not seen any author who states a clear matter and firm foundation, like one who understands the meaning of a matter, to reconcile all the places that discussed it without any twisting, difficulty, question, or refutation.” Therefore, many Gedolei Yisrael, in their humility, felt that they had not fully clarified the issue, and many halachic decisors have indeed not reached that level.
Additional Considerations Regarding Dina de-Malchuta in the State of Israel, Including the View of Maran Rabbi Ovadia Yosef
See further Teshuvot VeHanhagot, vol. III. Although, as noted, no. 338 gives force to laws of the State of Israel when they benefit its citizens, no. 476 raises a further question regarding payment of taxes: “But in Eretz Yisrael, as I have heard, much depends on connections and officials, and it is like a tax collector without a fixed assessment, where each person arranges matters according to his ability. In such a case, we do not say dina de-malachuta dina even under non-Jewish rule. Therefore, local rabbis must decide according to the circumstances; I have come only to raise the matter.” Similar considerations are written in Ma’amar Mordechai, vol. I, beginning of no. 15; Nishmat Avraham, Choshen Mishpat no. 359, note 1, in the name of Rabbi Shlomo Zalman Auerbach; and Rabbi Yitzchak Zilberstein in Avnei Derech, vol. XVII, no. 195, note 5.
It is appropriate to say that Maran, author of Yechaveh Da’at, agrees with this to some extent. His ruling that dina de-malachuta dina applies in the State of Israel is the general rule. Yet in areas in which the State operates unequally, the Rosh in Nedarim in the name of Rabbeinu Tam, the Mordechai, the Hagahot Maimoniyot, and other Rishonim state that dina de-malachuta applies only when the king applies equal standards. Otherwise, it is not the law of the kingdom but the law of coercion. Maran Rabbi Ovadia Yosef likewise cited this principle in Ma’or Yisrael Derashot, p. 87. [We emphasize: this does not mean that one may violate State law or evade taxes. Rather, it means that one who violates State law in such cases, or evades taxes and the like, violates the State’s secular law, but does not thereby additionally violate the holy Torah, whose laws are Divine laws.]
Although Teshuvot VeHanhagot discusses discrimination in tax collection, discrimination in distributing budgets is likewise included in the words of those Rishonim. This includes education budgets, in which the State acts with clear discrimination in favor of the general public and, regrettably, fights against funding for the Torah world—in the size of the amounts, in the eligibility criteria, in obstacles to transferring funds, and in inspections after funds are transferred, both through formal law and through the human conduct of those administering the funds. Rabbi Yitzchak Yosef, shlit”a, the Rishon LeTzion, writes in Hilchot Kibbud Av Va’Em, p. 493, and in Shulchan HaMa’arechet, vol. II, section dalet no. 116, that one may rely on those who hold that where the authorities act with unequal standards, dina de-malachuta dina does not apply, where there is no chillul Hashem and so forth. This is also written in Beit Yosef, vol. XIII, no. 19; Ashrei HaIsh Pinchasi, p. 249; and Divrei Shmuel on Bava Metzia 73b by Rabbi Shmuel Kohen, shlit”a, one of the outstanding members of our “Birkat Avraham” Beit Midrash. Rabbi Asi HaLevi Even Yuli, shlit”a, author of Nachalat Levi and other works, likewise discusses this in a responsum printed in Or Torah, Adar I 5779, p. 497.
We further heard from Rabbi Shmuel Kohen, author of Divrei Shmuel, in the name of one of the distinguished sons of Maran Rabbi Ovadia Yosef, zt”l, that what Maran wrote in Yechaveh Da’at—that dina de-malachuta dina applies in the State of Israel—was before he heard that there was inequality. But after this matter became known to him in detail, as Rabbi Shlomo Benizri, shlit”a, documented in a special investigation describing the many extensive inequalities between the general public and the chareidi public, the law changed. Nevertheless, this does not appear to mean that dina de-malachuta categorically does not apply, but rather in those areas and sums where discrimination is common. Every area requires its own examination.
Even according to the Maharik, shoresh 194, as ruled by the Rema in Choshen Mishpat 369:6, a king who distinguishes between Jews and non-Jews may be considered as applying equal standards because there is a fixed assessment for non-Jews and a fixed assessment for Jewish descendants. Nevertheless, in reality there are also differences in human conduct regarding the degree of scrutiny, inspections, release of funding, and the like. Therefore, reason inclines to say that this is considered a tax collector without a fixed assessment according to all views. Moreover, the Vilna Gaon questioned an apparent contradiction in the Maharik: in shoresh 66 he writes that a king who imposes a decree upon one profession and not another is not subject to dina de-malachuta dina, because it is not a law equal for all, and the Rema likewise rules this way in the same siman, section 8. One may explain simply that the Maharik and Rema relaxed the requirement of equality only regarding two nations, which in the period of the Rishonim were politically like two separate worlds; within one nation, however, they agree that no distinction may be drawn even between one profession and another—certainly not between chareidim and secular Jews.
It is possible that this was actually the Chazon Ish’s intent: in those areas about which he spoke, the State was like a tax collector without a fixed assessment, while listeners thought that he meant a tax collector who arose on his own. Thus, his ruling was transformed into a general principle. If so, there is no dispute between the Chazon Ish and Maran Rabbi Ovadia Yosef. Although Pe’er HaDor indicates that the case concerned redemption of a firstborn, one must examine whether the rationale of a tax collector without a fixed assessment applies there.
Once we say that Maran Rabbi Ovadia Yosef’s ruling is a general ruling with occasional unusual exceptions, it is fitting to cite Odeh LiShmo, Parashat Shemot, which writes based on Yechaveh Da’at, vol. VII that if there is corruption among politicians who embezzle public money, dina de-malachuta ceases to apply even regarding payment of taxes. Similar words are found in She’erit Yosef of Rabbi Yosef Yedid HaLevi, zt”l, vol. III, Choshen Mishpat no. 1, p. 177, though a distinction may be made. Accordingly, what Yechaveh Da’at writes in vol. IV—that it is forbidden to evade taxes, municipal taxes, customs duties, and the like in a democratic government—refers to the general case. But in particular countries or periods where there is clear and unquestionable significant corruption, such as Brazil, where enormous sums of public money are frequently stolen by politicians, it is possible that Maran Rabbi Ovadia Yosef agrees that tax evasion is not forbidden on this basis. In the Diaspora, moreover, there is greater room for the principle of recovering one’s loan from a non-Jew, where there is no concern of chillul Hashem.
This explains the practice attested to by Rabbi Rafael Berdugo, zt”l, in Torot Emet, Choshen Mishpat 369:6, concerning the Diaspora: “Go and see what the people do: the universal practice is to evade as much customs duty as possible. It is enough for Jews to be stringent in the stringencies of Chazal—would that they observe them—without adding stringencies that are not at all required by the basic law.” He further writes: “The world has already adopted a clear practice of leniency to evade customs under the kings of our times, and no one protests.” He repeated this in Mishpatim Yesharim, vol. I, no. 113, and Rabbi Rafael Ankawa, zt”l, followed him in Pa’amonei Zahav, Choshen Mishpat 369:6. It appears that Maran Rabbi Ovadia Yosef likewise agrees in circumstances where these rationales apply.
Accordingly, public notice is hereby given: everything written here, and elsewhere, concerning certain circumstances in which dina de-malachuta does not apply and there is no Torah obligation to pay taxes and the like, must not be viewed as incitement to violate State laws. The issue under discussion is only whether the Torah requires observance of State law as a Divine obligation. We have not addressed the laws in their secular sense, for the government’s laws claim that one must observe governmental laws and pay taxes as a secular obligation. Such matters are not the subject of this discussion.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
