Avodah Mailing List

Volume 01 : Number 016

Saturday, August 8 1998

• Re: Avodah V1 #15
• Re: Rashi Eiruvin 62b
• dina demalchusa dina
• Re: dina demalchusa dina
• Rambam on writing Mishna

I promised Joel that I would find the yerushalmi that is matir learning
beavailus for someone who is lahut acharei toraso.  It is in Moed katan
perek eilu megalchin halachah vov daf tes zayin anud aleph i the midldle
of the page.
gut shabbos everyone,  Shaul Weinreb

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On Wed, 5 Aug 1998, Mordechai Torczyner wrote:
> 
> 1. Is it certain that Rashi's language of "Devar Halachah" doesn't refer
> to a strict list of Halachos? The "Megilah" reference makes it seem that
> he is referring to a type of text that is not relevant to Mishnah.
> 
> 2. Does anyone have access to the "Nesivos Olam" that the Rashash is
> quoting there? I assume he doesn't mean the Maharal's NS"A.
> 
> 			Mordechai

Why wouldn't the mishna be a dvar halacha, many halachas are written in
the mishna, also rashi pointed out "afeelu os achas" wasn't written down
which would further imply that Rashi was stressing that nothing at all was
written. Furthermore the gemara's question maKES NO SENSE ,what's unique
about megillas tqaanis--and if someone quoted a halacha from a mishna in
his rebbi's presence why should  it be different
Elie Ginsparg

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The Ran to nedarim (daf 28a d.h.-b'moches) says that dina demalchusa dina
only applies to non-Jewish governments and the logic is that since they
can kick you out of their land they can enforce their rules as well (kinda
like love it or leave it) but dina demalchusa dina doesn't apply to a
Jewish government because every Jew has a partnership in eretz yisroel and
thus the previous logic fails. It would seem that a government in Israel
could only enforce laws through beis din or Sanhedrin but not based on
dina demalchusa dina. It would seem from this that there would be nothing
wrong with tax evasion or draft dodging etc.. in the state of Israel since
these rules aren't mandated by halacha and any rule made by a Jewish
government in Israel is not subject to the rule of dina demalchusa dina.
Does anyone know other explanations behind dina demalchusa dina which
would not make this distinction between Jewish and non Jewish governments?
Elie Ginsparg

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In a message dated 98-08-07 14:20:11 EDT, you write:
I don't think the makor is clearly discussed in the gm.  Other sources(besides
the ran you mention) are Parshat hamelech (shmuel alef perek chet)=king's land
ownership;popular acceptance;and hefker bet din.
The bais shmuel(even haezer 28:3) holds its only mdreabbanan.

For a fairly thorough treatment of this issue see R' Hershel Schachter's
article in Journal of Halacha Vol 1 #1  (I have copy if you need).  I heard
him give a shiur on this a number of year's ago and he spoke of those who used
this as a rationalization not to pay taxes in Israel. I think the gist was
that this could be an interesting example of "If there's a halachic will,
there's a halachic way"

Shabbat shalom
Joel


<< 
 The Ran to nedarim (daf 28a d.h.-b'moches) says that dina demalchusa dina
 only applies to non-Jewish governments and the logic is that since they
 can kick you out of their land they can enforce their rules as well (kinda
 like love it or leave it) but dina demalchusa dina doesn't apply to a
 Jewish government because every Jew has a partnership in eretz yisroel and
 thus the previous logic fails. It would seem that a government in Israel
 could only enforce laws through beis din or Sanhedrin but not based on
 dina demalchusa dina. >>
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To the best of my knowledge Rambam does not speak of Rabbi "writing"
Mishna in any of his Hebrew works. The word he uses in Arabic is not
ka-ta-ba. Despite translations it could just as easily be rendered
"composed"=hibber, rather than katav.

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