Op-Ed: The Halakhic View on Home Demolitions in Israel
Rabbi Eliezer MelamedThe writer is Head of Yeshivat Har Bracha and a prolific author on Jewish Law, whose works include the series on Jewish law "Pininei Halacha" and a popular weekly column "Revivim" in the Besheva newspaper. His books "The Laws of Prayer" "The Laws of Passover" and "Nation, Land, Army" are presently being translated into English. Other articles by Rabbi Melamed can be viewed at: www.yhb.org.il/1
'Dina d'Malchuta Dina' ("The Law of the Land is the Binding Law")
'Dina d'malchuta dina' is the fundamental rule in civil law and relationships between individuals and government. The meaning of this law is that one is obligated to maintain and uphold the laws of the 'malchut' (kingdom), whether they be laws involving income taxes and customs, or laws relating to public guidelines, such as building laws or traffic regulations (Shulchan Aruch, Choshen Mishpat 369:6). In general, any government accepted by the majority of its citizen's falls under the definition of 'malchut', including the Knesset and the government.
Two main reasons were given for this rule. First, because inhabitants of the country accept upon themselves the kingdom and relinquish some of their rights, and agree that it sets rules and manages the arrangements of community life. True, many citizens complain about high taxes and various laws, but as long as they do not openly rebel against the government, they agree that having a government is preferable over the potential chaos that might prevail without it. Thus, they assign the kingdom the right to determine laws and regulations, and collect taxes.
Another rationale for this rule states that, in fact, the land of each country belongs to the kingdom due to the law of 'keebush' (conquest), for owing to its military and economic powers, the kingdom safeguards the country, and consequently, all state-owned lands belong to it. Anyone who desires to reside in the country must observe the laws of the "landlord", namely, the kingdom. And although all houses and courtyards are privately owned, nevertheless, their ownership relies on the underlying ownership of the kingdom, for without it, the houses and courtyards would not remain in their possession.
According to this explanation, in the opinion of Ran (Rabbeinu Nissim), the rule 'dina d'malchuta dina' does not apply in the Land of Israel, because no kingdom has the right to expel a Jew from the land that God promised to Israel. In practice, however, the halakha was determined according to the first reason, and thus, even in the Land of Israel, one is obligated to obey the law of the kingdom (Shulchan Aruch, Choshen Mishpat 369:6).
Moreover, when the government and the Knesset are elected by a Jewish majority, their rule has the validity of 'chaver ir' (councilmen), and as the 'poskim' have written, leaders chosen by the community have the authority to establish regulations, punish, and penalize those who break the laws (Responsa of the 'Rosh', rule 6, note 19:27).
Laws that Are Not Obligatory
However, if a king arises and proclaims illogical and immoral decrees, they have no validity, because "the 'law' of the kingdom, is the law", but, "the 'thievery' of the kingdom, is not the law" (Nimukei Yosef, Bava Batra 54b; Ritva, see Tzitz Eliezer 16:49).
Nevertheless, only in a case where the law is clearly wrong and blatantly unjust, is the law of the kingdom null and void. Corrupt or discriminatory practices, found in all governments, do not annul the rule of 'dina d'malchuta dina', for if every corrupt practice was meant to invalidate this rule, there would not be a place in the world where it actually applies.
Torah Commandments Exceed Laws of the Kingdom
One significant restriction stands before the law of the kingdom in the Jewish state, namely, any law contrary to the mitzvoth of the Torah has no binding force. As the Jewish people said to Yehoshua bin Nun (Joshua) at the start of his rule: "All that you command us we will do, and wherever you send us, we will go. As we hearkened to Moses in all things, so will we hearken to you: only the Lord your God be with you, as he was with Moses. Whoever rebels against your commandment, and will not hearken to your words in all that you command him, he shall be put to death: only be strong and of a good courage" (Book of Joshua 1:16-18). In other words, Yehoshua's regulations were valid only on the condition that he fulfills the verse (1:7): "Only be strong and very courageous, and observe to do according to all the Torah…turn not from it to the right hand nor to the left…"
From this, our Sages learned a halakha for all generations, that if a king orders a decree contradictory to the Torah – his words are null and void, and he should not be listened to (Sanhedrin 49a; Rambam, Laws of Kings 3:9). Incidentally, this is the source from which the civilized world learned the principle that a person is not obligated to fulfill a law which sharply contradicts his faith and conscience (Pininei Halacha, "Ha'Am v' Ha'aretz" 6:1-5).
The Mitzvah of Settling the Land of Israel
It is a Torah mitzvah to settle all of the Land of Israel, as it is written (Numbers 33:53): "Occupy the land and live in it" (Ramban, Supplement to Positive Mitzvah 4; Shulchan Aruch, Even HaEzer 75; Pitchei Tshuva 6). This mitzvah is equal to all the mitzvoth (Sifrei, parshat Re'eh).
Someone who uproots a Jew from the Land of Israel with the intention of giving it to a non-Jew, in addition to nullifying the mitzvah of settling the land transgresses other Torah prohibitions: 1) "Do not allow them to reside in your land" (Exodus 23:33; Rambam, Laws of Idol Worship 10:6). 2) "Nor show mercy to them" (Deuteronomy 7:2; Avodah Zara 20a). 3) "No land shall be sold permanently" Leviticus 25:23; Ramban, Negative Mitzvah 227). Moreover, anyone who surrenders to a non-Jewish enemy even straw and hay from towns close to the border of Israel, is considered by halacha as endangering Jewish lives; all the more so will the uprooting of a Jew from his inheritance lead to terrible dangers (Eruvin 45a; Shulchan Aruch, Orech Chaim 329:6).
Settling the Land Overrides Danger to Life
In a sense, the mitzvah of settling the Land of Israel is more severe than the rest of the mitzvoth, because it is the only mitzvah we are commanded to endanger lives in order to fulfill. Given that we are commanded to conquer the Land, and there is never a war without casualties, we see that the mitzvah of settling the Land supersedes 'pikuach nefesh' (the saving of life) of individuals (Minchat Chinuch 625). Nonetheless, it should be noted that in the overall reckoning, our Torah is one of life, and the risk we are commanded to take in war for our country, is aimed at adding life and salvation for the entire world. On the other hand, the fear of sacrificing lives for the sake of settling the Land causes infinitely more fatalities, as was the case in the Sin of the Spies.
'Let Him be Killed rather than Transgress'
Today, the severity of violating the mitzvah of settling the Land is far greater, because it entails 'chilul Hashem' (desecration of God), and in a sense, this falls under the category of 'yahareg v'al ya'avor' ('let him be killed rather than transgress'). For we have learned that if the Gentiles said to a Jew, "transgress a mitzvah from the Torah or we'll kill you" – he must transgress the mitzvah, with the exception of three offenses – idolatry, incest, and bloodshed – for which he must be killed, and not transgress.
But when they want to force a Jew to transgress a mitzvah from the Torah publicly (in front of ten Jews) in order to forgo his religion – namely, to demonstrate publicly that he does not observe the mitzvoth of his Torah – this already is considered a 'chilul Hashem', and subsequently, the halacha for all the mitzvoth from the Torah is, 'yahareg v'al ya'avor' (Rambam, Hilchot Yisodei HaTorah, chap.5). In this halakha lies the secret of the Jewish nation's moral and eternal existence.
Accordingly, our teacher and leader, Rabbi Tzvi Yehudah HaKohen Kook ztz"l, instructed that the prohibition of withdrawal from parts of Eretz Yisrael is on the level of 'ya'hareg v'al ya'avor', seeing as there is no more well-known mitzvah in the world than the mitzvah of settling the Land of Israel. All of the Torah and the Prophets speak of it, and every person in the world who reads the Bible, is familiar with it. And when Jews are willing to give up a part of their inheritance in the Land of Israel, it is considered a 'chilul Hashem' of the most severe degree.
Three Situations of Home Demolition in Judea and Samaria
Regrettably, from time to time we encounter the demolition of homes in Judea and Samaria, and we are faced with the question: Does this constitute a violation of the mitzvah to settle the Land, or is it a case of 'dina d'malchuta dina'? The foundation upon which the judgment is determined is the reason for demolition. There are three different situations:
1) In the case of religious coercion – it is considered similar to a situation of 'ya'hareg v'al ya'avor'.
2) When the legal grounds for destroying are reasonable, the destruction is permitted.
3) An ambiguous situation where the direct reason for destruction is reasonable, but the underlying cause is harming the settling of the Land. I will elaborate further: If the demolition is because, in the opinion of the Government or the courts, it is forbidden for a Jew to live in a certain region in the Land of Israel, then we are talking about religious coercion, and it is one's duty to rebel against it, in the sense of 'ya'hareg v'al ya'avor'.
While in practice this directive is extremely complex, and in most cases far from implementation (and I pray, I never have to actually clarify this dreadful issue), nevertheless, we are undoubtedly speaking about an extremely severe struggle involving 'misirut nefesh' (self-sacrifice).
Such was the situation in the destruction of the communities in Gush Katif and northern Samaria, but for various reasons, (this not being the place for detail), it turned out that as a collective, we did not act properly and as required by the ruling 'ya'hareg v'al ya'avor'. And hopefully, God will save and protect us from reaching a similar situation in the future.
Is Demolition Ever Permitted?
In contrast, when a Jew builds his house deliberately on a public road or in an area intended for a park, or on privately-owned property – whether owned by a Jew or a non-Jew – there is no Torah prohibition to demolish his house. On the contrary – this is the how an orderly government is maintained. Also, when the courts determine that a certain person built his house in theft of someone else's property, there is no prohibition to demolish the house. Even if it appears that the court erred in its decision, as long as it is a reasonable mistake, it still falls under the ruling 'dina d'malchuta dina'. In a similar manner, our Sages said: "Even if you err inadvertently, even if you err deliberately, even if you are misled." I have written about this a number of times in my column "Revivim", and in "Pininei Halachah" (see, "Ha'Am v'Ha'aretz" 5:7).
An Ambiguous Situation
There are ambiguous situations, where, on the one hand, there is no decision in principle opposing the right of Jews to live in a particular region of Eretz Yisrael, and the decision of the Government or the courts is based on legal procedures and regulations.
However, on the other hand, the decision to demolish the house apparently stems from a position which denies the right of Jews to live in that region. For example, if in all similar cases elsewhere in the country, the order is not to demolish houses, but rather to reach an agreement; or, if all Arab claims are accepted, whereas all Jewish claims are constantly denied.
In such a case, the question returns to the doorstep of the Government, which has the ability to construct additional houses in that area. If the Government gives instructions to build several houses in place of those intended to be demolished, then it demonstrates that it is not working in opposition to settling the Land, and the decision to demolish reverts to being permitted – by reason of 'dina d'malchuta dina'. Nevertheless, if there are injustices in the decision, public debate should be raised, but the orders' implementation should not be contested.
If, however, the Government does not exercise its authority to build, then apparently the demolition stems from a desire to harm the mitzvah of settling the Land. While this is still not considered public religious coercion in view of the fact that the reasoning is based on the law and is of limited scope, nevertheless, seeing as, in this case, the action of destroying homes blatantly violates the mitzvoth of the Torah, no policeman, soldier, or citizen should honor or obey such an order, and it is even a mitzvah to rebel against it in all commonly acceptable ways. But the struggle should not be intensified beyond this, seeing as it is not explicitly considered religious coercion.