Judaism: Religious vs. Secular Law
Rabbi Dr Raymond AppleRabbi Dr Raymond Apple AO RFD is Emeritus Rabbi of the Great Synagogue, Sydney. He is now retired and lives in Jerusalem, where he publishes OzTorah, a weekly email list and website with Torah insights from an Australian perspective.
Which takes priority - religious or secular law?
We have a principle, Dina D'malchuta Dina, "the Law of the Land is the Law." Enunciated in the Talmud several
Secular law is of assistance to the religious law.
times, it does not override religious law, but is part of it in situations in which the regime has a direct interest.
Thus, if the government tells a Jew to put butter on a steak, it is intruding upon religious law and is out of order. In some countries where sh'chitah was banned, Jews had no choice but to suspend the performance of sh'chitah - but the fact that they would not eat t'refah meat was their business and not the government's. However, the government has a direct interest in securing enough taxation revenue to keep the country going, so Dina D'malchuta Dina tells a Jew that paying taxes is not only a government, but a religious requirement. Generally, in a democratic society, the two legal systems co-exist and, indeed, the secular law is of assistance to the religious law.
There is a halachic question concerning the law of the State of Israel. As religious Jews see it, every aspect of Israeli law (torts, criminal law, property law, commercial law, etc.) ought to be halachic, and when the State was in its infancy various rabbinic experts urged this. In the event, the Knesset enacted a Foundations of Law Act which requires reference to Jewish legal principles when there is a gap in the law. Though some derivations from halachah have entered the law of the State, many problems remain. Some say that Israeli law has the status of Dina D'malchuta, which would endow government legislation with Jewish legal status.
A major theological and ethical issue arises when there is a conflict of duties between obedience to God and obedience to the government. If a government imposes on its people racist, discriminatory or immoral
A major theological and ethical issue arises.
requirements, which conflict with Biblical and religious ethics, must a Jew obey?
One view is that Dina D'malchuta cannot apply to a country which has a "wicked government" - a phrase the rabbis used for their Roman overlords - but whether a modern democratic nation can be tarred with this brush is debatable. America involved itself, for example, in controversial wars ranging from Vietnam to Iraq, and though many citizens profoundly disagreed with the decision to go to war, and used adjectives which included "wicked", it is impossible to deem the United States a "wicked government" in halachic terms. The advantage of a democratic society is that there are built-in ways of legitimate protest, but then the issue is how many good, loyal members of the military have to lose their lives before a fragile policy is changed. Further, political issues are rarely straightforward and simple, and the populace is often not fully enough informed to enable them to exercise a wise judgment.