A Survey of Civil versus Religious Authority in Jewish Law
Dina de-Malkhuta Dina
from the Mishna to the Shulchan Aruch
[Note: This was prepared to inform a discussion held on Leil Shavuot 5784]
Background
The issue of civil versus religious authority first arose when the Jewish people became subject to the laws of Babylonia after the fall of the First Temple. The prophet Jeremiah wrote at that time: “Seek the welfare of the city to which I have exiled you and pray to the Lord in its behalf; for in its prosperity, you shall prosper.” (Jer 29:7) There is a pragmatism in Jeremiah’s teaching that we will find throughout the history of the relationship between minority Jewish communities and the majority societies in which they live.
Their Temple had been destroyed and the people driven from their homes into a foreign land, but the prophet urged them to pray for the welfare of their conqueror’s city because as Babylonia prospered so would they. That set the tone for the relationship between Jewish minorities and the larger populations in which they came to live in the diaspora.
A century and a half later, after the Jews had been allowed by Cyrus of Persia to return to their land and rebuild their Temple, the prophet Nehemiah wrote, “On account of our sins it yields its abundant crops to kings You have set over us. They rule over our bodies and our beasts as they please, and we are in great distress.” (Neh 9:37)
That recognition of civil control was preface, though, to Neh Chapter 10, in which the leaders of the Jewish people committed to follow the religious laws found in the Torah. There was a clear understanding that they were under the civil control of the Persians and that their situation it was a result of their own prior misdeeds. But there was an equally clear commitment to follow the laws of the Torah in religious matters.
Jews remained under Persian rule until 336 BCE when Alexander conquered Persia. It was then under the rule of Macedonian Greeks, Ptolemaic Greeks, and the Seleucid Greeks until the Maccabean revolt in 167 BCE. Throughout that time, until the Seleucid king Antiochus IV became ruler over Judea in 175 BCE, the Persians and the Greeks allowed the Jews to practice their religion and to deal with religious matters in their own way. Only in civil matters, particularly in matters concerning money, property, and security, was Greek law imposed. The system worked well. The Jewish people enjoyed relative stability and prosperity under both Persian and Greek rule.
Antiochus IV ended that period of cooperation and stability when he published the anti-Judaic edicts of 167 BCE, which forbade the practice of the Jews’ religion and required them to engage in what was, to them, idolatrous behavior. Civil authority attempted to encroach on religious authority in a major way for the first time and the Jews revolted under the leadership of Mattathias and then Judas Maccabee. In the story commemorated at the festival of Hanukkah, the Jews regained control of the Temple in 164 BCE and cleansed and rededicated it. The Hasmoneans soon gained control over the entire territory.
For over a century, from about 151 BCE until 37 BCE, the Jews maintained both civil and religious control in Judah. The Hasmonean dynasty ended when the Romans installed Herod as king, making Judah a client state of Rome. Jews would not regain both civil and religious autonomy in any territory until the State of Israel was established in 1948. Jewish nationalism, though, would continue to be an important force, contributing to a continuing unrest and resistance to Roman rule. A strong strain of messianism, which looked to an eventual reestablishment of the Davidic line and rule contributed to and underlay the dissatisfaction of many Jews of the era.
The Period of Roman Rule
The first and second centuries CE saw the Jews rebel against Rome with disastrous consequences. In 6 CE Judas of Gamala led a popular uprising against Rome over the issue of a census that was to be taken to facilitate taxation. Judas was said to favor a strict theocratic form of government and had messianic pretensions, but the crisis in 6 CE was precipitated by disagreement over civil matters. That uprising was quelled and a tense quiet lasted until the pogrom of Alexandria in 38 CE.
There were disputes in Alexandria over cultural, social, political, and religious matters. Those were inflamed by a visit of Herod Agrippa, the last Jewish king of Judea who was favored by the emperor Caligula, and by an order to place statues of the emperor in the synagogues of Alexandria. The pogroms were devastating for the Jewish community of Alexandria. Historical accounts, such as those by Philo of Alexandria, describe widespread violence, looting, and destruction of property. Thousands of Jews were killed, injured, or displaced, and their synagogues were desecrated and destroyed.
The first Jewish Roman war broke out in 66 CE as a result of both religious and civil tensions. One version of the story finds a Roman sacrificing birds to Roman gods near the door of a Jewish synagogue. The clerk of the Jerusalem Temple, it is said, then retaliated by stopping the practice of offering prayers for the emperor and the empire during Temple services. An issue involving taxation, though, was a contributing cause of the rebellion that ensued. The Second Temple fell in 70 CE.
The Kitos War of 115-117 CE, also known as the Second Jewish Roman War or the War of the Diaspora, was largely fought in the diaspora lands of Cyrene, Cyprus, and Egypt. Its causes were also both religious and civil but the rebellion against Roman rule was general. Hundreds of thousands of Romans were killed but many Jewish communities were completely wiped out. In some cases, Jewish survivors were sent to Judea and formerly Jewish cities were re-populated by Roman subjects from other areas.
In the Judean territory, after the fall of the Second Temple, the Pharisees assumed rabbinic leadership. With no Temple or sacrificial service, the Sadducees became irrelevant. The Essenes of Qumran also disappeared. “The striking difference in Pharisaic attitudes reflected the long-standing dispute over the question of whether Judaism demanded national independence or simply freedom of religion.” (L. Schiffman, Text to Tradition, p168)
It was during the time between the fall of the Temple and the Bar Kochva revolt that Rabbi Haninah taught that Jews should, “Pray for the welfare of the government, for were it not for the fear of it, men would swallow each other alive.” (Pirke Avot 3:2)
“The Romans came to see the tannaim (the early Pharisaic scholars/leaders) as ideally suited to be the country’s internal leaders.” (Schiffman, 168) It was during this period between the fall of the Temple and the Bar Kochva revolt that Rabban Gamliel II effectively established the authority of the rabbinic patriarchate as the system of self-government for the Jews of Palestine.
The Bar Kochva rebellion, the Third Jewish Roman War began in 132 CE and ended in 136 CE. Tensions between the Jewish and Roman populations were high for a number of reasons but the spark for the revolt seems to have been created by the construction of a Roman colony (Aelia Capitolina) on the site of Jerusalem, and the erection of an altar to Jupiter on the site of the Second Temple. Some sources say that the Romans also outlawed the practice of circumcision.
The revolt was initially successful and Bar Kochva was installed as nasi, or prince, of the provisional state declared by the Jews. There was a strong messianic quality about his leadership, and many saw him as a messianic figure. The Roman Emperor, Hadrian, assembled a huge army under the command of Sextus Severus, which ultimately crushed the rebellion in 134 BCE. It is estimated that 500,000 to 600,000 Jews were killed and many more expelled or sold into slavery. Bar Kochva retreated to Betar, which fell to the Romans in 135. By early 136 the last remnants of the rebel forces were destroyed.
After the suppression of the revolt, Hadrian promulgated a series of religious edicts aimed at uprooting the Jewish nationalism in Judea. He prohibited Torah law and the Hebrew Calendar and executed Judaic scholars. Torah scrolls were burned at the temple of Jupiter which he built on the Temple Mount. At this temple, he installed two statues, one of Jupiter and another of himself. Hadrian’s anti-religious edicts were rescinded after his death in 138 CE.
The patriarchate and the Jewish courts were reestablished at Usha in the Gallilee, to which most of the remaining Jews moved. With the exception of a ban on proselytism and on Jews living in Jerusalem, Jewish life continued there with little impediment from Rome.
The Initial Codification of Jewish Law
It is not surprising in the atmosphere of the destruction of the Second Temple and the aftermath of the Bar Kochva revolt that the Pharisaic leaders determined to codify and preserve the history and traditions of Judaism in writing. The Mishnah was compiled in about 200 CE, the Jerusalem Talmud about a century later, and the Babylonian Talmud about a century after that, more or less. And it is in the Babylonian Talmud that we find the fundamental rabbinic teaching on the relationship between Jewish law and civil law.
In five Talmudic citations we find the teaching dina de-malchuta dina, i.e. “the law of the land is the law.” That teaching is attributed to Shmuel, probably Shmuel of Nehardea, a prominent Amora (Talmudic interpreter) of the 3rd century CE. Shmuel was known not only for his expertise in Jewish law but also for his knowledge of medicine, astronomy, and other sciences. He was a respected leader of the Jewish community in Babylonia and his teachings are widely cited in the Talmud.
The Talmud gives us no basis or rationale for Shmuel’s teaching. But the principle is first stated in the discussion of a Mishnah found in Tractate Nedarim 3:4. That Mishnah says that one may take an oath or make a vow that is untrue if one is dealing with a murderer, a robber, or a tax collector. It says that one may lie to protect one’s life or property. The implication in the case of the tax collector, of course, is that the tax is in some way inappropriate.
In Tractate Gittin (10b:12), which deals with the issue of divorce, a general principle is also stated. It cites the Mishnah in holding that “all documents written in Gentile courts are valid except bills of divorce and bills of manumission (release of slaves).” There we see a continuation of the idea of a separation between religious and civil laws. Jewish laws on divorce and manumission were different from the civil laws and the differences were important to the Jews. It was critical to the Jewish community that their own laws controlled.
In Tractate Bava Kamma, the principle is brought in a discussion about the use of bridges built using materials taken from a property owner without compensation. The Talmud says we can use those bridges if they are open to public use even if the owner of the materials was not properly paid, presumably because the king had the right to confiscate the materials for public use.
The issues raised in the Talmudic discussions were matters concerning taxation and property. We know that, in general terms, the Babylonian Jewish communities during the Talmudic times and later had substantial control over the conduct of their legal affairs. “Dina de-malkhuta dina remained limited in the scope of its application; it was invoked primarily in the realms of taxation, confiscation, and the execution of bills in non-Jewish courts.” (Gil Graff, Jewish Law, and the Law of the State, 2020 p86)
But, importantly for our purposes, the principle was also “interpreted to provide a legal basis for resistance to the arbitrary demands of the ruling power. Unjust decrees were pronounced gezelah de-malkhuta [robbery by the kingdom] and were deemed beyond the scope of the king’s authority.” (ibid) So, the principle of recognizing the authority of civil law also provided a basis for dissent.
Rashi suggested that Shmuel’s principle was based on the Noahide commandment to maintain social order. (Rashi to Gittin 10b) While the Noahide Laws include the requirement to establish courts of justice, that is interpreted more broadly in rabbinic teaching to include all institutions required to maintain social order. Graff finds that “Other scholars viewed the principle as a matter of implicit, contractual agreement between the king and his subjects.” (Graff, p 87) Maimonides in the Mishneh Torah says that the acceptance and use of a monarch’s currency is an implicit acceptance of his authority. Others based the right on the king’s ownership of the land, or the right of conquest.
In Context of the Majority Population
We can view the Jews’ relationship to secular authority in a few broad contexts: 1) under Parthian and Sassanian rule in Babylonia, 2) under Roman rule, 3) under Islam, and 4) under Christian rule.
The Jews under Parthian rule in Babylonia for hundreds of years (third century BCE to third century CE) had a high degree of religious freedom, were largely self-governing, and prosperous. The Mishna was redacted in Judea during this period, but the creation of the Babylonian Talmud, which gives us the principle dina de-malkhuta dina, began under Sassanian rule.
The Sassanians were Zoroastrians and were not as tolerant of other religions as the Parthians had been. They imposed discriminatory laws and social practices on minority religions, including the Jews, and Jewish autonomy was restricted. The Talmud’s emphasis on matters of fair and equal taxation probably reflects actual discriminatory Sassanian treatment. The Jews were able to maintain their religious and cultural identities, however, even if not as freely as under Parthian rule.
While the Jews in the East were under Sassanian rule, in the West Rome held power. At the time the Talmud was being redacted, the Jews under Rome were subject briefly to the sympathetic rule of the emperor Julian (361–363), who supported the reestablishment of a Jewish patriarchate in Jerusalem, but then to his much less sympathetic successors. Under Constantine the Great, Jews were forbidden to proselytize, Jewish men could not marry Christian women, and Jews could not trade in or keep slaves. Under Theodosius II (408–450) Jews were prohibited from holding state office and new synagogues could not be built. Under Justinian (527–565) Jews could not testify in court against Christians.
Broadly speaking, the situation in both the East and the West began to worsen for the Jews after the time of the Mishna and worsen still more after the time of the Talmud.
In the East, the advent of Islam changed the legal status of Jews for a millennium. Mohammed was born in 570 CE and died in 632. Islam spread rapidly in the decades after Mohammed’s death and Muslim rule was quickly established over the Sassanian empire and most of the Byzantine empire. Sometime during that initial expansion the Pact of Omar, establishing the relationship between Muslims and non-Muslims, was produced. It created a special status called dhimmitude (non-Moslems were called dhimmis) for Christians and Jews, which was subordinate to Islam and to Muslims.
The Pact placed restrictions on building new synagogues or repairing existing ones. Public display of religious symbols was prohibited. Jews were required to wear distinctive clothing, were prohibited from riding horses or carrying weapons. They had to show respect to Muslims in a number of ways including, for example, giving way on sidewalks. They could not marry Muslim women. In some times and places elements of the Pact were made more stringent, in others they were not fully enforced, but the difference in status of Jews versus Muslims was official policy in Muslim lands.
That said, there is a twelfth century account of the Jewish community in Babylon, brought back by a Jew who traveled there, Benjamin of Tudela. He wrote that there were about forty thousand Jews in that community who “dwell in security, prosperity, and honor under the great Caliph.” He reports that there were great sages and scholars there who traced their lineages back hundreds of years and that the head of the community, the exilarch, had authority over all the Jewish communities from the Mediterranean to India. In Bagdad, he reported there were 28 synagogues and “the Jews of the city are learned men and very rich.” (Jacob Marcus, The Jew in the Medieval World, p209)
Muslims conquered Spain in the early eighth century. The “golden age” of Islam in Spain extended into the twelfth century. During that time, Jews were generally able to practice their religion; were active in trade, commerce, and the professions; were relatively prosperous; and held prominent advisory positions in the government. They were still technically subject to the restrictions of the Pact of Omar, and to periodic persecution, but Jews fared much better under Muslim rule than they would under later Christian kings.
The Codes of Jewish Law
It is important to understand the position of the Jews under the Islamic rule of the first two centuries of the second millennium because the first code of Jewish law that we have after the Talmud (which is not actually a code) is that of Maimonides, who lived under Muslim rule in the twelfth century. He wrote his Mishneh Torah, a compendium of Jewish law, between 1170 and 1180 while living in Egypt. There were objections to it, but it soon won general recognition and acceptance. It is important to our subject because his own life situation probably had some influence on his interpretation of the law.
Maimonides’ view of the relationship between the Jewish person and community and a non-Jewish ruler is expressed in very narrow terms; not much more detailed than those found in the Talmud. The issue given most attention is the legality of taxation. In general, a ruler will not be considered to be acting unlawfully if taxes are imposed uniformly and in fixed measures and are collected by an appropriate representative of the ruler. Which tells us that unfair taxation and improper collection practices had probably been a concern.
The Law of Robbery and Lost Property 5:14 states: “The general principle is: Any law that a king decrees to be universally applicable, and not merely applying to one person, is not considered robbery. But whenever he takes from one person alone in a manner that does not conform to a known law, but rather seizes the property from the person arbitrarily, it is considered to be robbery.” Presumably, in such a case, an individual would be justified in taking action to prevent the unjust seizure. And it is important to keep in mind that the generality of Maimonides’ statement applies only to civil laws, not religious.
But Maimonides does not stray far from the findings of the Talmud that had been codified seven centuries, or so, before. He elaborates a bit on the issue of using a bridge created from confiscated private property. In Robbery and Lost Property 5:17 he writes: “When a king cuts down trees belonging to private people and uses them for a bridge, one is permitted to cross over it. Similarly, if he destroys homes in order to construct a road or a wall, it is permitted to benefit from it. The same principle applies in all analogous situations because the laws of a king are binding.”
He then elaborates on the question of kingship. In Robbery and Lost Property 5:18 he asks: “When does the above [the ruling on the use of a bridge] apply? When the coins issued by a king are the tender of the land. This indicates that the inhabitants of that land have accepted him and consider him to be their leader and themselves to be his subjects. If, however, the coins he issues are not the tender of the land, he is considered to be a robber who takes by the force of arms. He and his servants are like a band of armed thieves, whose laws are not binding. Such a king and his servants are considered to be robbers in all respects.”
The king and his servants can then presumably be resisted, although that implication goes unsaid and its character is not defined.
So, the first major law code, Maimonides’ Mishneh Torah, was written by a Jew living in a Muslim land, in the employ of a Muslim ruler, at a time of relative security for Jews. It did not break new ground on the subject of the relationship between a Jewish minority population and a non-Jewish ruling majority. It is interesting to note that Maimonides situates his comments in the laws of robbery and lost property. References can then be made to “robbers” rather than to kings or rulers, which might have been a more comfortable or a more judicious way to present his positions in the context of a majority Muslim land.
Some Context
At about the same time that Maimonides wrote, Rashi’s grandson, the Rashbam, who was living under Christian rule, wrote, “For all citizens accept the king’s statutes and laws of their own free will.” (to Bava Batra 54b) The Rashbam died in 1158, only 24 years before the 1182 Edict of Expulsion of the Jews from France was signed by Philip Augustus. Many Jews converted rather than leave. Those who did not convert were allowed to sell their personal goods and leave, but all their property was forfeit. Whether the Rashbam might have had a different view a quarter of the century later we cannot know. But attitudes towards the Jews in that period were not uniform.
In the Duchy of Austria, for example, in 1244 a document titled The Charter of the Jews in the Duchy of Austria was promulgated. (Marcus, p 31) It was very favorable toward the Jews and was intended to attract Jews to the territory and to specifically encourage their money lending. The Jews’ right to govern themselves in religious and communal matters was implicit and the charter included many protections including, for instance, the provision that no Christian would be admitted as a witness in court against a Jew unless a Jew was also called as witness. So, even in a Christian Europe that was largely anti-Judaic at the time, there were instances of pragmatism that moderated Christian actions, if not their views.
The Arba Turim
The next major code of Jewish law was the Arba Turim created by Jacob ben Asher in the early fourteenth century. Ben Asher was from Frankfurt, Germany, but he left there for Toledo in Spain in 1303 because of tensions between the Christian majority population in Frankfurt. Toledo was under the control of Castile at that time and highly restrictive laws against Jews had been passed in Castile in 1265 but they had not yet been made effective.
The Seven Part Code, which contained those restrictions, was created during the reign of King Alfonso X, who might have had strong anti-Judaic views but was pragmatic enough to enjoy the benefits the Jewish population of Castile provided. So, the Code was not made effective until 1348, eight years after Ben Asher’s death. Alfonso might have used the creation of the Code to placate Church leadership but held it in abeyance for the practical benefits the Jews provided to the community.
Jacob Ben Asher’s father, Asher Ben Yehiel, also known as the Rosh, was also a prominent scholar who created an influential commentary on the Talmud called “Piskei HaRosh,” (the Rosh’s decisions). His work had a significant influence on Ashkenazic Jewish law and was a major influence on his son’s work. While Ben Asher lived in Toldeo, Jews were afforded substantial rights and protections. They had the right to practice their religion and to maintain communal institutions. They could practice trades and professions and were known for economic expertise.
But they were, nevertheless, subject to social segregation and discrimination. They lived in separate neighborhoods and were prohibited from some professions. There were periodic outbreaks of anti-Jewish violence. It was only later in the 14th century, after Jacob ben Asher’s time, that anti-Jewish riots swept across Spain with devastating effect. In fact, Toledo had been a prominent seat of Jewish learning for many years, having produced such notables and Judah HaLevy (d. 1141) and Abraham Ibn Ezra (d. 1167).
Ben Asher does not explicitly cite the Mishneh Torah in the Arba Turim, but he certainly knew it. His approach to the law was different from that of Maimonides, though. The Arba Turim is a code of practical halachah, while the Mishneh Torah is more philosophical and theoretical. Ben Asher, like his father, the Rosh, looked primarily to the Talmud and to the voluminous legal writings of the Geonim, who were the major legal authorities in Babylonia during the five centuries or so after the completion of the Talmud.
The Arba Turim relies on the principle, dina de-malkhuta dina, in rulings on taxation, business transactions, court rulings, property rights, and criminal law. While Ben Asher maintains the precedence of Jewish law in religious matters, he is pragmatic where some flexibility is available in its interpretation. In business transactions, for instance, he recognizes that local customs and practices need to be honored when possible, and he recognizes that governments have authority in property matters even if the Jewish law might be contradicted. There he followed his father’s pragmatic approach.
So, Maimonides wrote in the context of a relatively tolerant Islamic environment of Egypt, while Ben Asher wrote in a relatively tolerant Christian one in Spain. But in Ben Asher’s case the highly restrictive Seven Part Code of Alfanso X had already been created. It was not yet in effect, but its existence and the threat it represented must have affected the Jewish communities of the time. The Jews of Christian Spain must have felt the pressure of the impending restrictions and Ben Asher’s pragmatism might have reflected that.
The Shulchan Aruch
The next great code of Jewish Law was written by Joseph Karo. Karo was actually born in Toledo a century and a half after the time of Jacob Ben Asher. Jewish culture was flourishing at the time, but the Jewish community was facing growing intolerance. Karo’s family moved to Safed, which is in modern-day Israel, after the 1492 expulsion of Jews from Spain. At the time Safed was part of Ottoman Syria. Many Spanish Jews made their way to Ottoman controlled territory after the expulsion, where they were generally welcomed. The Ottoman Sultan criticized the Spanish monarchs for expelling such a valuable group. The Jews under Ottoman rule at that time enjoyed freedom of religion and their communal institutions were allowed to operate. Spanish Jews who moved there had ample economic opportunity and they established thriving communities throughout the Ottoman Empire.
Karo completed the Shulchan Aruch in 1563. It is the most widely accepted compilation of Jewish law ever written. It remains the central source of halachic guidance in many Jewish communities today. Part of its success is attributable to its usefulness to both the Sephardic and Ashkenazi communities. Karo, like Maimonides, was a Sephardic Jew and both Karo’s work and Maimonides’ represented a generally Sephardic point of view. But Sephardic practices differed from those of the European, Ashkenazi Jews in some respects important to both communities.
While Karo was working on his code, a great Polish scholar, Moses Isserles from Krakow, had also begun a comprehensive code. Isserles became aware of Karo’s work and that Karo apparently had a substantial head start. Isserles recognized Karo as a great scholar. The two agreed that Isserles would analyze Karo’s work and identify areas where Ashkenazic practice differed from Sephardic. Isserles would then write a gloss, or interpretative addition, to Karo’s work explaining the Ashkenazic point of view. In that way, both communities could be served by the same code of law.
The Shulchan Aruch today is customarily printed including the glosses of Moses Isserles and so can serve both the Sephardic and Ashkenazic communities. Shulchan Aruch means “the set table” and the work of Isserles is known as the mappah, which means “tablecloth,” so the two work together to create a finished product.
The Shulchan Aruch is organized in four broad subject areas, following the pattern set by the Arba Turim. But Karo based his conclusions of law on three sources: Maimonides, Alfasi – also known as the Rif, which is an extraction of laws from the Talmud without elaboration – and the Rosh, who was Ben Asher’s father. If two sources agreed, he adopted that conclusion. So, while he adopted the structure of Ben Asher’s work, he did not use Ben Asher’s conclusions as one of his primary sources.
The civil laws are found in the Shulchan Aruch in the section called the Choshen Mishpat (Breastplate of Judgment). It is there that we find Joseph Karo’s conclusions on dina de-malkhuta dina. Karo’s elaboration on the principle focuses on the definition of a robber and of appropriate versus inappropriate taxes. Recall that the Mishnah in Nedarim found that one could take an invalid oath – essentially one could lie – in cases involving murderers, robbers, and tax collectors.
Comparison
When comparing the progression of legal findings from the time of the Talmud, through the Geonim (reflected in the Arba Turim), Maimonides, and Joseph Karo the overriding observations are of the similarity of their views and the narrowness of the range of their views. There are some differences among the positions of Maimonides, Ben Asher, and Karo but they are far less important than the similarities. Those codes span a period of about a thousand years and yet they are very much the same. The range of their subjects is little different from that found in the five Talmudic references. Why might that be?
First, it is fair to acknowledge that each of the Talmudic references can be understood as a generality from which additional specific cases can be inferred. The principle stated in Tractate Gittin, for example, provides both a broad understanding of the authority of civil courts and two specific limitations. The specific finding that Jewish law governs documents regarding marriage and slavery highlights the importance of those two issues. Both are important to the Torah itself and so it is understandable that they are treated as special cases.
The same is true for the laws of taxation. That topic lends itself to an important interpretation of the seat and source of authority in the community and of the relationship of the minority population to both the ruler and the majority. Where authority to levy and collect taxes is acknowledged, important aspects of relationships are established. On the other hand, situating the issue, as Maimonides did, in the laws of robbery, allows the subject to be discussed in a more indirect context than that of the ruler specifically, and that might have been seen as a more prudent approach.
We can see the responses to lived reality in the contrasting teaching on taxes between the 12th century Mishneh Torah and the 16th century Shulchan Aruch. Both were created by authors living under generally benign Islamic rule. But Maimonides’ view was that discriminatory taxation was unlawful while Joseph Karo’s view was that discrimination among groups could be tolerated. It was discrimination within groups, specifically within the Jewish population, which was unlawful. That might suggest something about the difference in the actual conditions of time and place.
The issues of the ownership of property, and the rights to take it, raise a different set of questions. But the example raised in the Talmud is a convenient one to make the point. That is, the monarch, or the civil authority however comprised, had the power to exercise control over the property under its domain. If an individual made use of property that did not belong to him, a Jew could not benefit from that improper use. The same action by a ruler, however, was treated differently. The monarch could take private property, with or without compensation, and convert it to public use, and Jews were free to use it without transgressing Jewish law.
The explanation for that right differed. Some argued that the monarch actually owned all of the property in the kingdom. That right might have arisen by conquest, or by popular agreement, or just under the theory that the king owned the kingdom. Others argued the issue as power rather than ownership. Regardless of the source, property matters were the province of the civil authority, except where the issues were between Jews, in which case Jewish law might be invoked.
In all cases, the authors of the codes lived in minority Jewish communities. The Sassanian Persians who ruled Babylonia during the Talmudic period were Zoroastrians. The Geonim of the post Talmudic period experienced the rise and initial spread of Islam. Maimonides and Joseph Karo lived under relatively tolerant Muslim rule. Jacob Ben Asher fled with his father to Christian Spain from Christian persecution in Frankfurt, and lived in the shadow of the not-yet-effective Seven Part Law that would greatly restrict religious freedom and Jewish civil rights. Moses Isserles lived in Krakow under Christian rule but the Krakow Jewish community in the 16th century was growing and prosperous. Jews were free to practice their religion and operate their schools, synagogues, religious courts, and other institutions.
Jewish law as we have it in the codes of law, was developed by Jews living in minority communities under varying levels of discrimination. Both their lived experience and their legal writings reflected that reality. According to Gil Graff, “All authorities agreed … that the principle dina de-malkhuta-dina extended only to monetary and civil matters, not to religious ritual prohibitions. And that the laws of the kingdom had to apply equally to all the kingdom’s inhabitants. (Graff, here and above) A rabbinic declaration that a law amounted to a gezelah de-malkhuta meant that it could be avoided (disobeyed.) As Graff says, “To this extent, the principle dina de-markhuta dina was not only one of accommodation but also one of resistance and dissent.” (Graff 88)
In Recent Times
Since the period of The Enlightenment (c. 1685–1815) and of the emancipation of Jews, which began in France in 1791, the relationship of Jews to the countries in which they live has changed in many respects. But no new major codes of law have been developed. The Shulchan Aruch remains the most relied upon source.
Many commentaries have been written on the Shulchan Aruch, of course, and much responsa literature has addressed issues that have arisen in the centuries since the time of Joseph Karo and Moses Isserles. (Responsa are legal opinions written in response to specific questions raised by communities or individuals. The responsa created in one Jewish community are not necessarily accepted by all.) The commentaries and responsa have provided guidance on the questions of Jewish Law that have arisen. Civil authority has been accepted in more and more instances, certainly within the more liberal Jewish communities. But issues still arise that require decisions between religious and civil law.
Issues of religious divorce continue to be relevant and Tractate Gittin remains a fundamental source of guidance. In 2018 a law was passed in New York that allowed civil courts to consider a spouse’s refusal to provide a religious divorce document in decisions concerning property division. In Israel in 2018 the Israeli Supreme Court held that a husband who refused to provide his wife a get (a religious divorce decree) could be jailed indefinitely.
Circumcision has become a political issue in some places. An initiative to ban circumcision made its way onto a ballot in San Francisco in 2011. It was defeated, but the arguments over parent’s rights and religious rights were heated. In 2018 a bill was proposed in Iceland that would ban non-medical circumcisions. It was ultimately withdrawn, but the debate was intense.
Animal rights activists have sought to ban certain practices of kosher slaughter. Those efforts have succeeded in Poland, Belgium, and Denmark. Similar efforts continue in other jurisdictions. The observant communities in those areas are forced to import kosher meat.
Jewish law generally opposes autopsies except in isolated cases, which has caused conflict with civil authorities. There have been many cases of conflict on that issue, most of which have been resolved by negotiation. The record of cases that actually went to court on the issue has been mixed.
Since 1948, for the first time since the Hasmonean Dynasty, Jews have had civil authority over a sovereign state. Israel is a state for the Jews, in some respects, and a Jewish state in others. That is, Israeli civil law is independent of, but influenced by, Jewish religious law. And the two do come into frequent conflict, particularly in cases involving the ultra-orthodox population, which holds to very stringent views of religious law. Issues have arisen in areas of conversion, marriage, Shabbat observance, kashrut, gender-segregation, and military service, among others.
Israel is a secular state with a religious identity and so it is a laboratory of sorts for religious/secular conflict. As the state has matured and become increasingly integrated into the global community, civil law has increasingly become the controlling law of Israel. Shlomo Abramowitz in a 2020 paper titled “Limiting the Authority of the Country: Disobedience in the IDF” (Authority and Dissent in Jewish Life, Purdue University Press) used the 2005 evacuation of the settlements in Gaza as a case study in civil/religious conflict. The evacuation was a highly controversial issue, undertaken by the civil government of Ariel Sharon over the strenuous objection of the settler community and religious Zionists more generally. “Prominent religious Zionist rabbis called on the soldiers to refuse to take part in the evacuation,” (Abramowitz, p 183) on the basis that it was contrary to Jewish law. Ultimately only 63 soldiers refused to participate in the evacuation. That was partially a result of good personnel management by the IDF.
Abramowitz writes “In this conflict between the rabbis and the army, the rabbis lost.” (p 186) He cites the work of Eliezer Don-Yehiya and Charles Liebman (Civil Religion in Israel, Univ of California Press, 1983) in finding that “Religion keeps its total authority in some areas of life, but other areas are beyond its limits of responsibility.” (Abramowitz, p 168) And that is probably as good a general statement as we will find of the situation in Israel in all but the ultra-Orthodox communities. Religious law remains critical in religious matters, but it is not equipped to provide the legal needs of a modern, economically and technologically advanced state.
The Codes of Jewish law lay down principles and provide examples of application. The commentaries expand on and clarify those. The responsa literature addresses detail and can react as changing realities demand. But life moves fast today and the relationship between civil and religious law is far more complex and multi-faceted than it was at the time of Maimonides or of Joesph Karo. The Codes of Law that we have contain crucial general principles that should certainly guide our decisions and our actions. But in most situations, they can only inform, they cannot specify.