[Avodah] Copyright and Dina deMalkhuta

[Micha Berger]

Back in v23n29 (15-Feb-2007
<http://www.aishdas.org/avodah/vol23/v23n020.shtml#14>) RAFolger added to our perreniel
discussion of dina demalkhusa ("DDD") the following categories:

> DDD means different things to different people. Halakhically, what people mean 
> nowadays under DDD is the conflation of two concepts:
> * the power of taxation by the sovereign, a.k.a. the classical notion of DDD. 
>   This minimally applies to real estate transactinos and poll taxes. Maximally 
>   it can apply to a lot more.
> * the power of a governing body to institute new rules and decrees necessary 
>   for society to function.

> Actually, there is a third category: laws that derive their power from minhag 
> hasokharim. If the government enforces model contracts, we can generally 
> assume these to be minhag hasokharim and automatically binding.

I found an article by RMJBroyde, in "Sh'ma: A Journal of Jewish
Responsibility" <http://www.shmadigital.com/shma/200912?pg=3#pg2> where
he outlines 5 different theories of DDD and what they imply as to the
scope of the rule. I'm going to list them in order of broadest to narrowest
scope.

The relevent gemara is BB 54b "veha'amar Shemu'el 'DDD'."

1- Rashi (Gittin 9b "kesherin", "chutz"): Society's laws are a fulfillment
    of the 7 mitzvos benei Noach, and the 7MBN in general apply to Jews
    as well, with very specific excaptions.

   This would give authority to any law that doesn't contradict halakhah.

2- Maharshal: "If it were not [for secular law], the nation could not
    stand and would be destroyed." Simply, the law has authority because
    we need law.

3- Rashbam: The ruler has power with the consent of the governed, and
    therefore his laws are binding even if you don't agree with the
    particular law.

    (This predates the whole "social contract" view of law that was
    brought to the field of western philosophy by Hobbes, Locke, Rousseau
    etc... in the 17th and 18th cent.)

    Implied in the Rashbam is that DDD wouldn't apply to dictators who
    rule despite the will of the people. It may also exclude laws that
    aren't commonly observed. (Although RMJB says it does, I see the
    Rashbam as explicitly including one-off exceptions. That we're
    talking about the source of the legislator's authority, not the
    particular law's.)

4- Ran (Nedarim 28a): The king is our host, as we can only live where
    we do by their consent. DDD is simply obeying the host in his home.

    Kayadua (from previous iterations here, if nowhere else), many take
    the Ran as implying that DDD wouldn't apply to EY. It just hit me
    that it might be relevent that DDD is a statement by Shemuel, of
    the first generation of amora'im, and who lived in Neharda'a. IOW,
    one of the earliest voices in chu"l among Chazal.

    The Rashbam's and the Ran's sevaros would give no reason to consider
    international law binding.

5- R' Tam: The gov't has power through hefqer BD hefqer.

    Which limits DDD to fiscal law.

The SA appears to be even more limited than R' Tam, saying that DDD only
applies to laws that aid the governments finances. Not all of fiscal law,
mostly taxation and the like.

However, Ashkenazim can't use this heter, because the Rama adds all laws
that aid society. (Which sounds like the Maharshal, to my ear.) The Shakh
agrees with the Rama, only adding that DDD doesn't violate halakhah. (RMJB
suggests the example that if secular law allowed rooftop railings of
only 9 tefachim, we would still be obligated to put up a full maaqah.)

Tir'u baTov!
-Micha

-- 
Micha Berger             When we are no longer able to change a situation
micha at aishdas.org        -- just think of an incurable disease such as
http://www.aishdas.org   inoperable cancer -- we are challenged to change
Fax: (270) 514-1507      ourselves.      - Victor Frankl (MSfM)