A Case Study in Contemporary Halakhic Rhetoric

A Case Study in Contemporary Halakhic Rhetoric—Rav Asher Weiss on Dina DeMalkhuta

Guest post by Prof. Chaim Saiman

Last week’s dispatch from Rav Asher Weiss (Parshat Chukat, 5770: June 18, 2010 - link), disagrees with nearly all the rishonim, most achronim, and significantly challenges the haredi consensus concerning the relationship between halakha and the State of Israel.
Yet, rather than incur the wrath of the community he is addressing, this shiur will likely burnish Rav Asher’s (RA) reputation as a significant halakhic authority and a true Gadol B’Yisrael. For these and several reasons pursued below, this brief shiur is worthy of a close reading.

I. RA’s Overview of DMD

The shiur opens with a presentation of the six leading account of Dina Demalkhuta Dina (DMD) found in the halakhic literature.

1. Rashbam to Bava Batra 54 who bases the government’s taxing authority on the assumed consent of the populace.
2. Rashba and Ran to Nedarim 28 who argue that since the king owns the land, he can demand fidelity to his laws in exchange for allowing the Jews to live within his borders.
3. R. Yonah to Bava Batra 54 who understands DMD in terms of a court’s authority to declare property ownerless and transfer it to another party, הפקר בי"ד הפקר. (RA rejects this view since הפקר בי"ד הפקר only applies to a Jewish court).
4. The Dvar Avraham’s [R. Avraham DovBear Shapira, Poland, 1871-1943] claim in the name of Rashba and Ritva that a king acquires rights via “din kibbush”— rights by conquest. (This is rejected since conquest by force is an untenable political rationale and governance must be predicated on consent).
5. Rashi to Gittin 9b who writes that DMD is based on the fact that both Jews and Gentiles are subject to the Noahide law of “dinnim” which includes fidelity to secular law. (This is rejected since post- Sinai Jews are bound to Torah rather than Noahide law).
6. Hatam Sofer who understands the Gemara Shevuot 35 to grant a king the inherent right to tax. (This is rejected since the Gemara only deals with king’s right to tax for his own purposes but not to erect a government for the betterment of society).

Of the six rationales presented RA sees only two as viable. Yet, using little more than an Enlightenment conception of individual autonomy RA finds fault even with views 1 & 2. (ובמה יתחייב היחיד בדין המלכות מכח הסכמת חבריו, או מכח הסכמת עצמו ולמה לא יוכל לחזור בו בכל עת שירצה.)

In other words, the rishonim’s accounts are based on fictional rather than actual consent. And while this may have been sufficient in the fourteenth century, RA reasons that in the twenty-first century, actual consent is required.

Instead, RA claims that the true basis of DMD is the fact that the Torah implies and the reality of political life demands assuming a foundational concept of political authority for both Jews and Gentiles. Citing Mishna Avot 3:2 אלמלא מוראה איש את רעהו חיים בלעו, RA suggests a social-contractarian grounding of politics. Moreover, RA argues that this is what Chazal mean by DMD—simply the power of the government to rule. As for what the rishonim were talking about—and why they failed to mention this point ולא נחלקו הראשונים אלא במהות הדין שרשו וטעמו האם סמכות המלך משום קבלת העם היא או שמא אין זה משום הסכמת העם כלל אלא משום שהארץ שלו, ואכמ"ל , which to the best of my understanding means: “The rishonim argued only as to the essence of the rule [of DMD] and its source and reasoning: whether the king’s authority is predicated on the consent of the governed or on account of the king’s ownership of the land. But here is not the place to delve into this matter further.” I suspect however, that this statement was never intended to convey much substantive content. Its goal is to assure the reader that due respect has been paid to the rishonim— and then proceed to the next point.

It is important to consider how this opening section operates. First, RA demonstrates his obvious mastery and respect for the arguments and personalities presented in the classical sources. Second, it rejects four of the accounts through a combination of lomdushe (analytical-legal) and substantive arguments. Finally even the two views that are “accepted” are reworked such that the real basis of political authority are the raw facts of social life recognized by Tanakh and the Mishna, but apparently ignored by the leading rishonim.

Why is this significant? Because each rishon’s view presents a significant limitation as to the domain of secular authority. By offering a reworked theory of DMD however, RA legitimates nearly every method of governance employed by the modern administrative state. Thus, RA rejects most limitations suggested by the achronim, including: (i) DMD applies only when the financial interest of the government are at stake but does not apply to social, economic and public safety regulation; (ii) since DMD is predicated on the “lease agreement” between the king and the community for the land the Jews will occupy, DMD applies only outside Israel. In Israel however, where Jews reside as a matter of Hashem’s gift, DMD cannot legitimate secular law or government; (iii) DMD applies only to relationships between Jews and Gentiles, however intra-Jewish relationships are governed exclusively by din torah; and finally (iv), DMD applies only to the executive/legislative branches (malchut) but not to secular courts (arkaot). Through a combination of bold arguments and soft phrasing, RA presents a maximalist vision of DMD, where state law controls in most areas where secular law and din torah conflict.

II. RA’s Specific Applications

In Parts II and III of the shiur, RA applies his understanding of DMD to a number of concrete cases, all while deftly navigating the contrary views of leading achronim.

For example, RA points to a tension between Rema’s holding that DMD applies to all forms of civil law (HM § 369:8) and his statement limiting DMD to laws promulgated “for the benefit of the king or the social welfare.” (369:11). S”ma understands Rema as distinguishing between actions of the executive/legislator on the one hand and the judiciary on the other. (S”ma HM 369:28). While S”ma claims this position is universally accepted, RA dismisses this reading since אך פירוש זה אינו מתיישב בלשון הרמ"א כלל.

Following other achronim, RA understands Rema to distinguish between laws regulating public conduct (which concern the government and are subject to DMD), and laws regulating private conduct which lies outside the government’s interest. However, even this limitation is subtly undermined as RA demonstrates the pliability of the public/private distinction. For example, in HM 154:18, Rema suggests that DMD applies to neighborly disputes regarding a property owner’s rights to maintain a consistent level of access to sunlight. Similarly, in HM 356:7 Rema rules that, despite the Gemara’s holding to the contrary, one must return lost items even after the initial owner has given up hope of recovery. Finally, in HM 73:14 Rema argues that while din torah permits lenders to sell pawns (mashkon) 30 days after the debtor’s default, lenders must comply with secular law and wait an entire year.

Pulling these cases together, RA finds that in an interconnected economy, virtually any law can be described as regulating a matter of public concern. And while RA never rejects the public/private distinction ascribed to Rema, his conclusion דבענינים אלו יש מיסוד וסידור ענפי המסחר ויש בהם תקנת המדינה, וצריך בזה עיון makes it pretty clear where his commitments lie.

Second, the Shach (HM 73:39) explains that DMD applies only to cases where secular law does not contradict din torah. Thus DMD can supplement Torah law, but never supplant it. Citing the Hazon Ish, RA explains that this position is difficult, since by definition, DMD is relevant only in cases of direct conflict between secular and Torah law. While RA closes this section deferentially,וא"כ באמת צ"ע בהבנת דברי אדונינו הש"ך רבן של כל ישראל , there is little doubt that his understanding runs contrary to the Shach.

While RA relied on the Hazon Ish as against the Shach, in the very next paragraph, the Hazon Ish’s views on a related matter are summarily rejected. The Hazon Ish understands that DMD recognizes secular law only to as between Gentiles and Jews. In an intra-Jewish context however, the covenantal commitment to din Torah means that secular law never trumps. Citing several of Rema’s applications of DMD, RA dismisses the Hazon Ish, leaving off with a simple “tzareich iyun gadol”.

The most radical claims are left for last. In a paragraph that frankly recognizes that virtually all achronim exclude decisions of secular courts (arkaot) from DMD, והנה על אף שהסכימו האחרונים דרק חוקי המלכות הוי דין ולא משפטי הערכאות, RA argues to the contrary. Because contemporary democracies conceptualize the judiciary as one of three co-equal branches of government, RA understands that the traditional distinction between “kings” (malchut) and “courts” (arkaot) is no longer relevant. Despite this bold claim, the paragraph concludes with a tentative, ולכאורה מסתבר לפי"ז דגם באלה נוהגת זו דדמ"ד, וצ"ע בזה.

A similar approach is taken towards an even more explosive issue— the status of DMD in contemporary Israel. Though the position of Ran/Rashba (predicated on monarchical ownership of the land) has long been used to argue against applying DMD in Israel, RA reasons that since contemporary political theory grounds legitimacy in representative democracy rather than the king’s ownership of land, the laws enacted by the popularly elected government in Israel are entitled to DMD recognition. This highly contested claim is then followed, וצע"ג בכל זה, ולא נתחוורו לי הדברים, and with this RA concludes the shiur.

III. Contemporary Halakhic Rhetoric

In this brief shiur, RA argued with virtually all the rishonim, most of the achronim, and built a theory of DMD that shares more with Enlightenment and democratic values rather than ideas culled from the standard halakhic texts. Nevertheless, I doubt RA will be placed in cherem or lose influence as a result of this shiur. While much has to do with matters that lie outside the text of any specific given shiur (RA’s manner of dress, speech, bearing, peer group etc.), it is worth focusing on what this tells us about the practices of contemporary halakhic discourse.

Form and Substance

The first point, while obvious, bears repeating. RA is a first rate talmid chacham and who displays a level of mastery in substantive literature of the rishonim, achronim, poskim and ba’alei machshava that has few equals in today’s olam hatorah. Of equal importance is his mastery of the achronic form. The tone, texture and structure of the shiur (up to and including the typeface and graphical presentation) display deep affiliation with yeshivish traditions. Despite the “radical” content, the presentation is more comforting than confrontational, demonstrating not only that RA “knows how to learn” but that he conceptualizes Torah in a way that his audience recognizes and identifies with.

Yet, RA is working to expand the boundary lines of the discourse itself. He displays a keen sense for the contours of contemporary political and legal theory and hints at the ideas of social contract, separation of powers and democratic governance. However, because these concepts are enveloped in a thoroughly conventional halakhic frame, the presentation feels organic to the classical materials. Few halakhic writers have demonstrated this level of literary and conceptual dexterity while adhering to the broad conventions of achronic writing.

Discretion and Patience:

Given the political turmoil surrounding the issues covered, the shiur is remarkably discreet. While my own presentation highlights the radical departures both from specific piskei halakha and overall conventions of halakhic argument, RA works to minimize this gap, constantly emphasizing the tentative and hesitant nature of his conclusive non-conclusions. This comes across not only in the self-effacing comments interspersed throughout the text, but in the presentation of this material as “thoughts on the parsha” rather than a programmatic essay setting forth the halakhic and political basis of secular law.

RA also understands that his readers approach these questions halakhically rather than theoretically. While the shiur is obviously predicated on a conception of both halakha and the modern state, these ideas are implied rather than expressed, and are never subjected to systematic exposition. While from a Western/academic perspective this is an undeniable flaw (the constitutional boundaries of the state assumed in the shiur are not well-developed), RA’s audience is far more concerned with his knowledge of achronim than his ability to talk legal or political theory. Moreover, RA uses these predilections to his advantage. While each paragraph and p’sak gently nudges the reader towards accepting RA’s views, he is able to defer the overarching philosophical questions to another day—a day one assumes will be long in coming.

RA is also patient. He has no illusions that this shiur will be the final word, not even his own final word on the topic. He is happy to work interstitially, bit by bit, and return to and reinforce similar themes down the road. RA thus proceeds sugya- by-sugya, confident that increased and non-confrontational exposure to his views will solidify his status as a halakhist and posek.

Method and Message

This shiur was published for Parshat Chukat. If the connection between DMD and Chukat is tenuous, the relationship between DMD and current events is anything but. The Israeli public is currently aflame over questions of halakha and the legitimacy of the State’s legislative and judicial decisions. There is no doubt that DMD was the parsha of this past week, even if it had little to do with this past week’s parsha. Though I have no special insights into RA’s thinking, I find it hard to believe that a shiur concluding with a discussion of the halakhic validity of the courts and government of Israel, is in any way coincidental.

There are many approaches to Torah leadership. Some involve cherems, riots and bromides. Others sense that a shiur on parshat hashavua can serve as a lesson in civic education. RA shows that an approach that is not afraid of a reverentially stating that, באמת צ"ע בהבנת דברי אדונינו can be far more effective than a wall full of pashkevilim. והמבין יבין, ואכמ"ל.


Chaim Saiman teaches Jewish law at Villanova University Law School.