Various current events have led
me to try to clarify the Torah’s view of this issue, for myself as well as for
others. Although protests against government decisions are common worldwide,
discussion usually focuses on practicality rather than on what is right.
To demonstrate the importance of
this question, two extreme possibilities should be pointed out. One theoretical
option would be to say that no-one should ever take the law into his own hands.
We may sometimes hear comments like this, but it is reasonably obvious that
they are not meant literally. Those who ‘illegally’ defied the Nazi regime by
saving lives are rightly seen as heroes by all.
The other extreme is also clearly
wrong. If every minor injustice was immediately fought against violently, it
would lead to a world where ‘each man swallows up his fellow’.[1]
Most cases are in between. If we
think about the terrorism of Nelson Mandela in his struggle against apartheid,
the poll tax riots of 1990 in England, and the various militias that operated
in Mandatory Palestine, we may have firm opinions about their legitimacy. But
to formulate rules for what is acceptable when is less straightforward.
Examples in Tanach
There are many examples of
popular protests in Tanach, although mostly to my knowledge there is little
evidence to show whether this behaviour is appropriate or not.
One case that we may be able to
learn from is the tragedy of the splitting of the Ten Tribes from the Davidic
dynasty. After Rechavam foolishly insists that not only will he not ease the
burden imposed on the people by his father Shlomo, but will increase it, there
is a mass revolt.[2] Rechavam is
severely criticised by the Navi, and the silent implication is that the
rebellion is justified.
The logical extrapolation from
this is that in countries with cruel dictators, it is acceptable to fight for
regime change. However, this does not prove anything regarding protests against
governments chosen willingly by the people, especially when the aim is not to
overthrow the government but to reverse its decisions.
The limitations of dina
d’malchusa
An important source here deals
with resistance on a smaller scale. The Mishna tells us that one under threat
by bandits or tax collectors may lie by saying that produce is terumah, or that
it belongs to the king.[3] The
gemara clarifies that the mishna cannot be referring to a regular tax
collector, as in this case there could not be any justification for lying. We
have a principle that ‘dina demalchusa dina’ (the law of the kingdom is
binding).
The gemara offers two possible
ways to understand the mishna. The first is that it refers to an unauthorised
tax collector.[4] The second
is more relevant to our discussion, that the mishna is talking about a collection
with no fixed rate. In this case, even though the collection has the ‘legal’ approval
of the king, as it is unfair one is entitled to evade it.[5]
The obvious question is how to
define what is unfair. Any system would be considered unfair by some, and
obviously it is not the right of every individual to decide for himself which
laws he feels are moral enough to obligate him. It also would not be helpful to
attempt to replicate the legal systems from the time of Chazal, as the
difference between them and what is accepted today is huge.[6]
Perhaps surprisingly, there is
little discussion of this issue in the early commentaries. The one source I
have found starts with a different question. Tosfos ask why it is that a tax
collector with no fixed rate does not have the dina d’malchusa, even if the law
of the land allows it. They answer that even though the law technically gives
freedom to the tax collector to collect as he wishes, common practice is that
they collect fairly. Therefore, if he differs from this standard practice he is
stealing.
From this we can learn that even
when government officials have the technical freedom to impose the law as they
choose, if they do so in an unusual way we have the right to resist. It seems
reasonable to extrapolate from here to cases where a regime acts unacceptably
in the eyes of the vast majority of the world, to the extent that sanctions are
imposed upon them (as in apartheid South Africa). This is not always easy to
measure, but at least we have a guideline.
The rights of a Jewish king
and his limits
The above is true for non-Jewish
countries. When it comes to Jewish rule in Eretz Yisrael the Torah imposes
stricter regulations.
The Rambam codifies all the
powers of a king in detail.[7] To
generalise, he can collect taxes and forcibly purchase goods and services from
anyone, but he cannot confiscate private property without fair payment. He has
the right to quash any rebellion against his rule by punishing the perpetrators
by death or other physical means, but even in such cases he cannot expropriate
the possessions of others.[8]
The Ran explains at length that the responsibility for everyday justice and enforcement of the laws of the Torah is the job of the
Sanhedrin. The king’s responsibility is to ensure that the country functions orderly,
as well as making temporary alterations to suit the needs of the time.[9]
Today in most countries the government controls
more than what the king once did. They are responsible for common law and its
enforcement, as well as management of the economy and temporary measures. The
function of the judiciary is (broadly speaking) limited to interpretation of
the law and ascertaining when it has been breached.
This situation is acceptable in non-Jewish
countries, as the Noachide laws obligate only that some justice system is
applied.[10] As
Jews in Eretz Yisrael we must follow all the laws of the Torah, including
recognition of the separation of power between the king (or recognized
government[11]) and
the Sanhedrin.[12] When
the government or its agents in the secular courts exercise power that is not
rightfully theirs, and decide something contrary to Torah law, this should be
protested.
For example, if the government or court decides
that a settlement must be destroyed for ‘legal’ reasons contrary to halacha,
this is not binding. If they decide to do so not because of the law, but as a
practical step aimed genuinely for the good of the country, this may be within
their rights.[13]
The manner of protest
When a person is clearly wronged, the gemara
tells us that he has the right to enforce the law for himself and prevent
others from causing him damage.[14]
A straightforward reading seems to indicate that when necessary, it is even
permitted to use violence. However, in various places the Rambam prohibits this
and the final halacha is unclear.[15]
Practically, even if we can rely on the
straightforward reading of the gemara there usually is no justification for
violence when it comes to wrongdoings of the government. Such resistance has
virtually no chance of achieving its aim, and hence there is no reason to allow
it.[16]
Another important point is that
there is definitely no excuse for inflicting damage in order to threaten and pressurise
the government into changing its ways (terrorism). The leniency found in the
gemara is only when the prevention of wrongdoing is direct.[17]
The one time when we definitely
must resort to violence if necessary is if human life is in direct danger. If
our enemies are trying to kill us by any method, we must make innocent lives
our first priority, however politically incorrect it may be. The criticism that
some have received for stating this obvious rule is reprehensible.
May Hashem give our leaders the
courage and wisdom to act justly, so that we should never need to implement any
of the above.
[2] Melachim 1,
perek 12
[3] Nedarim
27b-28a
[4] The rishonim explain that the king used to sell the
right to collect tax to individuals (an early form of privatisation). Thus
it was not uncommon for people to start collecting without formal approval,
assuming that the king would agree retrospectively.
[5] The rishonim explain that if
tax is taken randomly, or the ‘law’ applies to some and not others, this is
robbery and not din.
[6] For
example, according to Chazal the amount of tax a person pays is not dependent
on his income, but on the benefit he gets from the use of the money. See Bava
Basra 7b that determining factors are family size, amount of property (one who
has more of either pays more as he has more to protect), and proximity to the
city wall (one who is closer pays more, as he is protected from a higher likelihood
of damage).
[7] Hilchos Melachim
3:8-4:10.
[8] Ibid.
3:8. The Rambam may have learned this
from the case of the field of Navos, possessed by the wicked king Achav after
he had Navos put to death. See Melachim 1, perek 21. See also Hilchos Gezeila
5:13 that in cases where the accepted law allows the king to take property of
his servants this is binding.
[9] Drashos
HaRan, Drush 11
[10] See
Rambam Melachim 9:14 who says that their mitzvah to appoint judges is only in
order to enforce the other six Noachide laws. Even according to the Ramban who
argues (in Bereishis 34:13) that they must keep the same legal system as us,
there is certainly no requirement for them to separate the powers of the king
and judiciary in the same way.
[11] One
could make an argument that only a king appointed according to halacha has any
power at all, but see Amud Hayemini siman
who explains why this is not the case.
[12]
Although we do not have a Sanhedrin at the moment, we do have the laws of the
Torah which must be kept to. The function of the Sanhedrin is primarily to
interpret these laws. They also have power to make new institutions, but when
there is no Sanhedrin this power is only in the hands of all (or virtually all)
of the Rabbis if they agree to use it. See Nezikin-
the part of the Torah that we can change and How
does halacha work?
[13] This
is a complicated issue. Theoretically, even if we believe that the government
are mistaken we must recognise that the government are entrusted to make
decisions of this nature. However, if their view of what is ‘good for the
country’ is based on a value system different to that of the Torah, this is
probably not valid. This is certainly true when the motivation is merely to
relieve international pressure, felt only by the heads of the government
themselves.
[14] Bava Kama 27b-28a
[15] See
Mishne l’Melech, Hilchos Avadim 5:3 who provides a source for the rulings of
the Rambam. See also Nesivos Hamishpat 4:1.
[16] See
Ohr Sameach, Mamrim 4:7 who makes a similar argument concerning attempted
prevention of aveiros.
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