[Avodah] Land ownership

[Micha Berger via Avodah]

On Tue, Jan 24, 2017 at 06:56:51AM +0000, Rich, Joel via Avodah wrote:
: There are a number of theories amongst the rishonim as to the basis
: of the unsupported (in the gemara) statement of DMD.

Just to be clear, in 2007, RAF identified three different dinim under
the name name DDD <http://www.aishdas.org/avodah/vol23/v23n020.shtml#14>:

1- A derivative of the general rule that qinyan follows expecations,
along the lines of qinyan situmta and minhag hasokherim, and
therefore DDD can define new forms of qinyan or limit existing ones.

2- The power of taxation.

3- Civil law as an implementation of the chiyuv to maintain a safe and
orderly society.

We discussed the number of theories for DDD #1 in the past. I listed
5 theories of DDD from an article by RMJBroyde
<http://www.shmadigital.com/shma/200912?pg=3#pg2> back in 2010. The opinion
not being attributed to the Rosh RMJB found in the Ran.

> 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.)

See threas like
http://www.aishdas.org/avodah/getindex.cgi?section=C#COPYRIGHT%20AND%20DINA%20DEMALKHUTA

http://www.aishdas.org/avodah/getindex.cgi?section=D#DINA%20DEMALCHUSA%20DINA
(and following threads)

Floating around is also my open question whether anyone distinguishes
between civil crimes and midemeaners.

Tir'u baTov!
-Micha

-- 
Micha Berger             Man can aspire to spiritual-moral greatness
micha at aishdas.org        which is seldom fully achieved and easily lost
http://www.aishdas.org   again. Fulfillment lies not in a final goal,
Fax: (270) 514-1507      but in an eternal striving for perfection. -RSRH