Q: May a Jew, especially a rabbi, protest an Executive Order of a president of the United States? Is it even more egregious if he does so by publicly advocating on behalf of disobeying said presidential order?
A: …Through what method does the recipient of a gift obtain possession? Through this ‘shtar’ (document). But is not the ‘shtar’[worth] nothing more than a piece of clay? Said Shmuel; ‘Dina d’malchusa dina’ [The law of the government is the law]! Gittin 10b
Our Talmud in discussing the validity of legal documents signed by gentiles in their courts of law states that almost all are acceptable in a Jewish court of law. Even where the Mishnah states two exceptions there are countervailing opinions that hold that virtually all documents signed and delivered by a gentile court is acceptable to a Jewish court.
The reason is that the law of the government is the law which means the methods of adjudication as practiced in their legal system (in most civil law) is binding and enforceable upon Jews. Contracts sanctioned by secular courts are therefore a binding kinyan –method of acquirement– in Jewish law as well.
This is so fundamental that in explaining the disagreement in the Mishnah where Shmuel explains this principle, according to Rabbi Shimon [b. Yochai], even a get receipt (after the initial get was processed) is acceptable verification from a knowledgeable and professional secular court and its judges. On that basis alone if she remarried her marriage is legitimate and cannot be undone [RA’avaD is of the opinion it is fine ab-initio RaCH and RaN agree only ipso-facto and definitely not to nullify her present marriage].
Furthermore this legal rule is at its core so rock-ribbed that we do not have any Rishonim (Early Codifiers) that disagree with this underlying principle. Which, in and of itself, is highly unusual (RITvA on Nedarim 28a).
There are various reasons given for this halacha. Of note, for the purposes of this article, I will stick to three:
- Since all citizens in the realm accept the authority of their ruler and his laws it becomes standing This applies even in instances where there is no direct pledge of fealty to the king. Since the government has the power and mechanisms of enforcement we assume acceptance of its yoke and its burdens. Thus its laws and legal fiats are the law even for Jews. [Terumat HaDeshen 341 (in the name of RaSHBaM)].
- We learn this rule from another principle in Talmud. There is a rule which says, hefker beit din hefker (loosely translated; a Jewish court has the power to expropriate the property or possession of a private individual under certain conditions when it’s for the sake and wellbeing of the community-at-large, which is the basis for Takanat Pruzbul as enacted by Hillel the Elder, so Jews would not fear loaning money ultimately unable to collect it because of the Shemita year) the principle for which is found in Tanach (Joshua 19:51; Ezra 10:8). The commonality between the two being the rule of law and the ability to enforce it. [Rabbeinu Yonah (in Shita Mekubetzet) on Baba Bathra 54b].
- Finally; when G-d gave rights to kings to rule he allowed them to govern as they see fit. Even over Jews and their civil affairs (as we learn from Nehemiah 9:37). [Teshuvat HaGe’onim attributed to an anonymous Gaon].
Whether the root of this overarching principle is of biblical origin or rabbinic in nature is a matter of debate. What is not debatable is its immutability in Jewish law.
Of note is two opinions in regard to this principle and in either case one must accept the order of the head of state:
- Stare-decisis e. precedence, a principle used in the judicial branch is true as well in the executive branch and its chief-executive. If the Chief-Executive is lawfully ordering the continuity of law and precedence a Jew must adhere to it. Whereas, fines and penalties created by a chief executive never ordained before, would be considered self-indulgent and tyrannical and need not be obeyed or at a minimum fought. As the principle of the Talmud conveys –dina d’malchuta dina– the “kingdom” i.e. the government, which continues from one administration to the next, is binding, not “d’malka” –the king himself! [Chidushei RaMBaN on Bava Bathra 55a; Me’iri on Bava Kama 113b; Responsa, MaHaRaM of Rothenburg 324]. According to this opinion where the ordinance is produced on behalf of the citizens and for their safety, especially if it has precedence there’s no question the rule must be obeyed and accepted. It is not conditional on whether a private citizen agrees to it or not.
- No precedence is needed! Merely, by the power vested in him and the acceptance of his people as their ruler, the decree of the king (a-fortiori where the head-of-state is actually elected by the people) is law in and of itself! Just as kings before him created new law, so too may he and he may enforce it at will. His will is what governs not that of a previous potentate. [Magid Mishneh on Rambam, Hilchot G’zeilah 5:13; Tur, Choshen Mishpat 369 in the name of his father, the ROSH].
In either instance, there’s no doubt that where it is in the purview of the head-of-state to enact ordinances and law in order to govern he has full right and legitimacy to do so and a Jew must follow and obey these rules. The only question left to debate is where and how far that “purview” extends.
Moreover: Only a head-of-state’s orders or administrative enactments for the sake of governing or what is inherently his by right, is binding. This is not so when it comes to specific courts. No one judge can bind a Jew or Jews to his rulings [Hence, the right to appeal and fight the judicial order], otherwise “each individual judge would rule according to what is written in their books and in accordance to their particular values” which would, in theory, render all rules and customs of the Jewish people meaningless. [Me’iri on Bava Kama 322].
This is not a Constitutional discussion and therefore to argue whether present-day judges have such latitude or not is beside the point. Especially when there’s no uniformity among judges and they are constantly revising and interpreting law “as is written in their books and in accordance with their particular value system.” As such the words of our codifiers are prescient and pertinent even today and even under our system of constitutional law.
Greater weight is given to the Executive Branch because of its uniformity. Under a single chief-executive the ability to stay faithful to its own orders is far better than that of the Judicial Branch with its warring factions and disparate opinions, and is therefore halachically binding.
Accepting the abovementioned one would assume that where the government maintains order and enforces the law (especially law which is already on the books, thus having the added criterion of precedence) as it deems proper on behalf of all citizens, Jews included, it would unquestionably be improper and even halachically illegal to disobey. It goes to the very heart of dina d’malchuta dina! It is actually the main reason for it.
This definitely applies to enforcements by a head-of-state in regards to matters of security and material welfare of the people. It is not debatable that dina-d’malchta-dina applies in full. Parallel to the Constitutional rights invested in a President to promulgate law directly impacting the nation’s security and welfare.
As such, in direct response to your question: For a rabbi to go out publicly and foment dissent against the rights and prerogatives of the president in his capacity to protect and defend the land is without halachic precedent and is utterly illegitimate. Doing so as a private citizen would be halachically wrong doing so as a teacher and representative of halacha is utterly untenable!
The fact that a court put a hold on the Presidents’ order, is a) in and of itself insufficient halachic authorization to proactively disobey and protest publicly, rather one would have to wait to see it through to its end of the appeals process when the President himself would be under constraint to obey if adjudicated against him, and is b) in essence halachically questionable when it butts heads with the Presidents’ rights and prerogatives and as such doubtful and perhaps illegal for a rabbi to involve himself in the right or wrong of such matters, let alone to publicly advocate for and sow dissension and anarchy!
Halachically speaking, greater latitude is given to the national head-of-government than to an unelected single judge/s. As it relates to the principle of dina-d’malchuta-dina the gravity and unifying aspect of the president or king gives him a level of credibility unlike any other governmental position and lends him the ability to govern effectively. As such, it requires a measure of allegiance and obedience from the citizenry not extended to any other governmental official, let alone an unelected singular judge.
The issue of constitutionality and how far the power of a president extends and the rights of the judiciary to curb them when and if necessary is really beyond this scope and not the purpose of this essay. Although, on this too, I could offer various responses and laymen’s opinions.
The purpose here is to probe the halachic rights of a Jew and whether there was willful –even worse, public– transgression from halachic representatives. Constitutionality aside, there is no constitutional obligation to go out and publicly protest the order of a lawfully elected head-of-state! Here, the maxim of our Sages aptly applies: Shev v’al ta’aseh adif! If in doubt whether a pro-active stance or action is the right thing, the better part of valor is to sit back and wait it out. At least until a final ruling or consensus has been reached.
Perhaps, most egregious is the chilul Hashem these rabbis have made. What they’ve displayed to the world is indifference to the dangers of the American people, the indifference to the prerogatives of a president to protect us and the obligation he has to be extra careful lest even one bad actor wreak havoc upon the citizenry. This would accrue to them and could be used by many as a cudgel to show their disloyalty and indifference to America and its people.
Lastly, is a public indifference to halacha which is the most egregious chilul Hashem yet. In their blind haste to jump the gun and show their “compassionate” bona-fides to the world they’ve actually caused greater harm than good to their people.
It is one thing to hold private views in contradistinction to halacha. It is quite another to publicly advocate for them. Such an individual is obviously not worthy to represent and instruct Jews in ecclesiastical matters and should be openly denounced.
But there’s one final and even more egregious act of halachic defiance from these rabbis for which they must be taken to task and, I maintain, even shunned from the Jewish community.
In my next article, I will venture into an even more dangerous alleyway that these rabbis have traversed and dragged their co-religionists and for which they must be held to account! They must be excised for the actions that “have caused us trouble by making us odorous among the inhabitants of the land” (Genesis 34:30).
To be continued…