[Avodah] dina demalchuta

[Chana Luntz]

RMB wrote:

> >> DDD is the Jewish obligation to follow their dinim

RZS replied:
 
> > No, it is *not*.  Where do you see any reference to an obligation?

And RMB further replied:

> DDD is not an obligation? You want to say it's an issur against
> violating
> their dinim? No problem. But also, a distinction without a difference -
> -
> you can't tell from Shemu'el's words whether it's an asei or a lav.
> 
> Personally, given RHS's tying this all to uvi'arta hara miqirbekha, I
> would go with asei.

Just to slightly butt in here, I don't think you are understanding RZS's
argument.  He doesn't believe that DDD is an aseh or a lav, he believes it
is just a kind of recognition of a fact, ie a shtar is valid, or a seizing
of property by the king make the property legitimately the king's.  He
doesn't believe that this imposes on anybody any obligation to do anything.

And part of the reason you are finding this so frustrating is the same
reason why it used to be intensely frustrating on the old soc.culture.jewish
debating with these modern day karaites, who do not accept Chazal, and keep
insisting that the words in the Torah meant what they say they mean, and not
what Chazal said they mean.  And the reason it is frustrating is that they
have a point, the words in the Torah could, in the absence of Chazal, be
understood to mean what they say they mean.  It is just that we are not
karaite Jews. For us if Chazal tell us that the Torah means X, then it means
X and not interpretation Y, which might also fit the words, but do not fit
Chazal.

Similarly, RZS's explanation could fit the cases of DDD in the gemora, were
it not for all of the rishonic and achronic explanation which is predicated
on DDD being an obligation, and not merely a recognition of validity. 

RZS is partly basing his position on, as he says later:

> All I'm doing is translating the words, and not going
> beyond them.   DDD is a huge chidush, an enormous chiddush.  Shmuel
> gives no source, and no explanation.  The reason is so obscure that the
> rishonim have to make wild guesses as to what it might be, which is why
> their answers are all over the map.  And the fundamental rule about any
> chiddush is that you cannot extend it beyond what it says.  Shmuel
> doesn't say anything about obligations or prohibitions, and though the
> gemara cites him several times, in different cases, none of them imply
> an obligation or prohibition.  So anyone who asserts that such a thing
> exists must prove it.

Again, this is like our "karaites" who keep saying they are translating the
words of the Torah, and want you to prove that Chazal's explanation is the
valid one.  It is almost impossible to do, without a belief system in Torah
she baal peh.

It is true, the rishonim are all over the map in trying to explain the
source for Shmuel's ruling.  But one of the reasons they are all over the
map is because almost all of them understand it as a chiyuv, not merely a
statement of fact (which they then variously try and limit in some way,
because the consequential breadth is otherwise enormous).  But part and
parcel of each of their justifications for the basic ruling involve
inclusion of this fundamental understanding of chiyuv within the din.  I say
almost all, because it is possible to say that where the source for  DDD is
hefker beis din hefker, you might also see that as a statement of fact
(although once a Beis Din has ruled your property not yours, then
obligations of handing over other people's property to them kick in, but
arguably less so in this case).  However, that position is not the dominant
position amongst the rishonim, it is not what is brought in the Shulchan
Aruch and the Rema, and it is thus overwhelmingly not the way that Klal
Yisroel poskens.

That is why people feel free casually to assume this explanation of DDD in a
discussion of halacha, eg on this list.  It is like assuming that you start
counting the omer on the day after Pesach even if it is not a Sunday. We
would all do this, because we are imbued with Chazal's understanding of the
Torah.  Similarly, RHS and anybody else writing on this either assumes or
brings this understanding, because the rishonim overwhelmingly do and the
justifications they give for the din do.

RZS is trying to say that we cannot extend a chiddush beyond the most
limiting interpretation one can place on the words of the gemora even
against the rishonim and the sweep of halachic history, including many
teshuvot on the subject.  It is thus a very difficult position to argue
without writing a book (or at least a Rav Ovadiah like encylopedic list of
citations) because you need a level of overview that does not so easily lend
itself to communication (unless you are Rav Ovadiah).  And you also need a
belief in the halachic process that validates the position of the rishonim,
and not just the rishonim, but the rishonim as then codified and discussed
by the Shulchan Aruch and meforshim, over and above any interpretation we
might ourselves find. Analysing the words themselves are not going to get
you there, although once you have "bought in" to the understanding of the
rishonim, just as once you have "bought in" to the understanding of Chazal,
all sorts of other places which seem to prove, or "fit" the explanation
appear.  That is what makes it difficult, but that does not mean that IMHO
you are not still right.
 
> Tir'u baTov!
> -Micha

Regards

Chana