There is an old tradition, when Jews in their own communities inside the greater communities at large, judged themselves. It was considered Chilul ha Shem, (desecration of God's name) for a Jew to bring another Jew into a secular court for adjudication. And so batai din (Jewish courts) judged fellow Jews.
The Talmud in Tractate Gittin states: "Rabbi Tarfon used to say: In any place where you find non-Jewish courts, even though their law is the same as the Israelite law, you must not resort to them since it says, 'These are the judgments which thou shalt set before them.' (Ex. 21:1) this is to say, 'before them' and not before non-Jews."
The power of Charem (excommunication) was enormous. (Please revisit what our Portuguese Jewish ancestors did to Da Costa ,1623, and Spinoza ,1656, in Amsterdam ). Charem had the power to make one an outcast in the Jewish community. Since a Jew in those times could not find work or even shelter or food in the Gentile community, Charem was death.
In the Orthodox community today, Charem would cause a religious disconnection. One could find work, shelter, and community in the non-Jewish world, and the non-Orthodox world, but to an Orthodox observant person, this would mean spiritual death.
If a Beth Din was brought into session for every Jew who transgressed, there would be no Jews left for a minyon.
When Da Costa in Charem, he did public Teshuvah, (repentance) in 1640. He received 39 lashes on his shirtless back. He was forced to lie on the Portuguese Synagogue's steps. Every member stepped on, spitting on him, on the way into the Prayer Hall.
Only when he was covered in every Jew's saliva, could Da Costa, enter the sanctuary. Then he was re -admitted back into the community. He was so humiliated, he went home, a killed himself with a pistol.
Spinoza stayed in Charem.
Dina de malchuta dina, the law of the land is the law, as Rabbi Samuel stated in Talmud Bavli Tractate Nedarim 28a (and quoted in Talmud Bavli Gittin 106; Talmud Bavli Bava Kamma 113a; Talmud Bavli Bava Batra 54b). This applies to laws that do not, according to our sages, conflict with our Jewish laws and ethics.
" As long as we are living in non-Jewish nations, we have to abide by the laws therein, " is not 100% correct. The Talmud gives many examples of when we have an obligation to disobey a host nations laws if they are unjust. After all, if dina de malchuta dina , was truly followed, the Jews of Nazi Germany would have to concede to the Nuremberg laws. They would not be permitted by Jewish law to find ways around them to try to save themselves.
Further, while laws of the land were to be obeyed, if they were just, and did not conflict with Judaism, at no time was a Jew to inform or be a witness against another Jew in a secular court. (Talmud Bavli Bava Metzia 83b). There was a time when Rabbi Eliezer turned a fellow Jew into the pagan court. His fellow Rabbis scolded him saying: "How long will you hand over God's nation to be killed?"
In a recent case, an Orthodox Jew, was caught labeling non- Kosher food as Kosher. Rabbi Moshe Feinstein, the modern Halakah expert of the Orthodox, was asked if he should be turned over to the secular authorities for fraud. And Rabbi Feinstein said "no", let him be judged by a Beth Din, and receive monetary damages, because the prison system in the USA is unjust.
In the buying of properties in foreclosure, our Jewish laws in Talmud Bavli Tractate Bava Metzia 108a-b , specifically the law of bar metzra govern this. The over ruling mitzvah is that we are ''to do what is right and good in God's eyes''(Deut 6:18)...in all our affairs.
A capitalistic society allows one to use the Roman pagan law of caveat emptor. This got many home owners into sub- prime adjusted rate balloon mortgages . This caused them to not be able to make payments five years later. This allowed those with money, to buy their homes at deflated values. Jewish law, as discussed in my Talmudic discourse on business ethics, Talmudic Discourse (Jewish Business Ethics) , is based on lifnei iver, not putting a stumbling block before the blind.
When explaining loans, we must not do geneyvat da'at, which means, "stealing a person's mind." This is derived by the Sages from the laws of theft and the laws of honesty. The Talmud says: "There are seven kinds of thieves: the first is he who steals the mind of his neighbor."
The Talmud gives a number of examples of geneyvat da'at . Our Sages have taught: one should not sell a sandal made from the leather of an animal that died of disease as if it was made from the leather of an animal that was slaughtered, because he is misleading the customer." (Talmud Bavli Chullin 94a)
"One should not sift the beans at the top of the bushel because he is "deceiving the eye" by making the customer think that the entire bushel has been sifted. It is forbidden to paint animals or utensils in order to improve their appearance or cover up their defects." (Talmud Bavli Bava Metzia 60a-b).
Telling someone, ''do not worry, take the loan, in 5 years you'll be making more money at work and can afford the balloon payments, '' may be legal in the USA, but is not Jewish. It is geneyvat da'at.
When we do loan, and we use one's grinding wheel as collateral, we must return that wheel to the borrower each morning so he can earn his living. If we use his blanket for collateral, we must return it to him each nite so he can sleep. The Talmud says this. Extrapolating, if we loan and used a home for collateral, we never would be taking that home, as one needs the home both day and night. There would be no concept of foreclosing on a home Judaically if one stopped making payments. First, we wouldn't be lending with ribit, interest, in the first place. Secondly, we wouldn't be concerned, as we still own the deed to the house and eventually payments would begin again.
Just because the law of the land allows we Jews to do something, doesn't mean we Jews should do it.
This concept of Ona'at Mamon ,monetary deception, is based on a verse in Leviticus 25:14: "When you sell anything to your neighbor or buy anything from your neighbor, you shall not deceive one another." The rabbis of the Talmud used it as a basis for a series of specific laws on the subject (Talmud Bavli Bava Metzia 49b and 50b).
They ruled that if the price charged was more than one sixth above the accepted price, the sale is null and void and the seller must return the buyer's money. If it was exactly one sixth more, the transaction is valid, but the seller must return the amount overcharged. If it was less than a sixth, the transaction is valid and no money need be returned. It is permissible for a Jew to make a fair profit. It is not permissible to price gouge. Such behavior is ona'at mamon, or monetary deception. So a Jew, buying a house, that is in foreclosure, for less than one sixth of its actual value, is a thief.
A new immigrant living on New York's Lower East Side finds nowhere to erect a Sukkah (for the Holiday of Sukkoth) except for his fire escape. He is summoned to court. The judge berates him for flouting the law of the land, lecturing him about how he no longer lives in the shtetl and must accommodate to new norms. "I will take no excuses," declares the judge. "That booth of yours must go. I will give you 8 days* to remove it, or fine you. '' Jews had long lived with the Talmudic rule that "the law of the land is the law," except where the local law conflicted with Jewish law. (*The Holiday of Sukkoth is 8 days long).
Here are two examples, one simple, and one that is a major problem in many Jewish communities:
A) When there is a hazard warranting the attention of business owners or even homeowners, many states in the USA do not have the same strict laws that other states do in the USA, and certainly many nations do not. The premise is that if a danger is obvious, the individual should be smart enough to take his own precautions, and if he is a child , his parents should have that obligation.
Hence many governments do not have laws requiring codes enforcing protections for what might be considered obvious dangerous situations. One of these is requiring a fence around a swimming pool. But Judaism demands that we cover a hole in the ground and build a fence on our roofs.(Deut. 22:8). This the Talmud extrapolates into a long list of things we must do to save a potential life. So even if the law of the land says we do not need to place a safe guard around an obvious dangerous area, as Jews we must.
B) There is an attitude among our people, as well as others, that cheating on taxes is acceptable. Cheating on taxes violates Halacha, (Jewish law and ethics), violates secular law, and creates Chilul ha Shem. Those who do not cheat but make it possible for others to evade taxes, violate the prohibition of enabling another to sin.
The Halacha is clear: one is obligated to pay taxes imposed by the government. The obligation stems from Rabbi Samuel's "Dina de malchuta dina," the law of the land is the law. (Bava Kama 113a, Nedarim 28a, Bava Batra 54b-55a and Gittin 10b) .
This principle has limits. According to many Rishonim (medieval Rabbis), such as the Rambam, the rule of dina de malchuta dina applies only to matters in which the government has a financial interest, such as taxes and currency regulations. . Other Rishonim take the position that dina de malchuta dina applies more broadly. They say it includes any matter of civil law which is the subject of a specific governmental rule. The rabbis state this is true provided the rule applies to all citizens equally and the rule is enforced by the government.
Though different opinions exist regarding the precise scope of this principle, all Rishonim agree that dina de malchuta dina applies to laws of taxation.
The agreement regarding taxes derives from a discussion in Bava Kama 113a. The Gemara quotes a baraita (a part of the discussion left out of the Gemara), relating a dispute whether it is forbidden to evade a tax. This prompts the Gemara to ask: How can it be permitted to evade a tax? Did Samuel not state that dina de malchuta dina? The Gemara provides two answers: tax evasion is permitted where the tax collector is authorized to collect any sum he wishes or, according to a different opinion, where the tax collector is self-appointed and does not represent the king. SO IN THE PRESENCE OF ONE OR MORE OF THESE TWO FACTORS, DINA DE MALCHUTA DINA, TALMUDICALLY MAY BE IGNORED.
The Gemara establishes that evading a fixed tax collected by a government tax collector is prohibited by Halacha. But it does gives examples when one does not need to obey the law of the land.
Some Rabbis suggest that indirect tax evasion may be permitted for pagan tax collectors. This is based on (Bava Kama 113b) that it is forbidden to steal outright from a pagan, but indirect theft (for example, failing to repay a loan) is permitted. If such indirect theft could result in Chilul ha Shem, it is unanimously prohibited. One is forbidden from cheating a non-Jewish tax collector who is honest or is the agent of an honest king.
In contemporary times, rabbis have also taken a clear position on the issue. Rabbi Moshe Feinstein wrote to a person who engaged in USA tax evasion that it is "vadai (certain)" that he must repent for his actions, pay what is owed, and never do so again. In a democracy, we assume that our government and 'king' and his tax collectors are 'honest,' (even with news reports to the contrary), and hence tax cheating is not-Jewish.
The Torah demands absolute integrity in business matters. According to the Gemara (Talmud Bavli Tractate Shabbat 31a), when we face Divine judgement, we are asked a series of questions about how we lived our earthly lives. For example, we are asked: Kavata itim le-Torah? Did you establish time for Torah study? Tzipita le-yeshu'a? Did you anticipate the redemption? It seems fair to assume that the questions are ranked in order of importance. Yet, the first question is not about Torah study or awaiting the coming of the Messiah. The first question we are asked by the Divine Judge is: Nasata ve-natata be-emunah? Did you conduct business honestly?
Our sages wisely have given us a way to live with the laws of foreign lands and still be honest good Jews. We do not need Batai Din over us if we do a chesbon ha nefesh each night (an inventory of our soul, of our day's actions). If we find that we did wrong, to make teshuvah (amends). We ask God how we can correct our behaviors and to grow spiritually. Just because a secular law gives us latitude to not ''love our neighbor as our self"' , doesn't mean that we have to do it.
Shalom,
Rabbi Arthur Segal
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