CCAR RESPONSA
Loyalty to One’s Company Versus Love for Israel
5751.1
She’elah
A congregant works for a company which is developing some technology systems with military applications for Arab countries which do not have peace treaties with Israel. He is torn between loyalty to the company for which he works and his devotion to the Jewish people and the State of Israel. He would like to inform discreetly someone in the Israeli consulate, but he is also concerned about his job security: he has a wife and three children, and he would clearly lose his job were it discovered that he leaked information.
Teshuvah
Our sho’el seeks to draw a proper balance between conflicting loyalties and loves. In his concern for the State of Israel, he expresses a feeling that is central to our religious consciousness as Jews and as Reform Jews. The history of modern Zionism in general and of our own movement’s relation to it has been a complex one, but there is no question of our love for the State of Israel and of our full acceptance of its essential and pivotal role in the life of the Jewish people and in the minds and hearts of its members.[1]The issue is whether this love for Israel enjoys a kind of absolute status in the life of the Jew, taking precedence over other legitimate commitments.
Our she’elah suggests at least two of these “other commitments.”
1. Citizenship and The Law of the Land. The sho’el wishes to “inform discreetly someone in the Israeli consulate” about his employer’s business dealings. Since it is not illegal under normal circumstances to do business with countries with which one’s government maintains diplomatic relations, we presume that the company is acting within the limits of American law. On the other hand, it is possible that the sho’el himself would violate the law of the United States or of his local jurisdiction by revealing company secrets. This possibility raises the element of our duty to obey the laws of the land in which we live. Does this duty supersede or give way to our obligation to care for Israel?
Both the Bible (“seek the peace of the city to which I have exiled you”)[2] and the rabbis (“pray for the welfare of the government, since but for the fear of it people would swallow each other alive”)[3] discuss the need to show respect to the state within which we live. Yet these statements do not take us very far. The “city” and the “government” of which they speak refer to the Babylonian and Roman conquerors of the Jewish state, and the attitude they recommend is one of prudence, a recognition of the realities of power, rather than that sense of positive loyalty which the citizen is supposed to feel toward his or her political community. The more appropriate citation for our context is the classic talmudic principle dina demalkhuta dina, “the law of the state is the law,” binding upon us as well as upon its non-Jewish inhabitants.[4] Whatever its specific historical origin,[5] this principle asserts the legal validity, under Jewish law, of a wide range of acts taken by a Gentile government in the field of civil or monetary law (dinim or diney mamonot). At first glance, this notion is somewhat surprising. Jews, after all, have their own legal system, whose integrity and autonomy they are forbidden to undermine by submitting their disputes to Gentile jurisdiction.[6] For this reason, although the Talmud does not offer a legal theory to justify the principle, we find several explanations of it among the medieval authorities. The most important of these are the following:
1. Rashi writes that since Gentiles are obligated, under the doctrine of the “Noachide laws,” to establish courts and to administer justice, our own courts can recognize as valid the legal acts undertaken by non-Jewish authorities in fulfillment of this duty.[7]
2. Several Ashkenazic scholars advance the theory that the land is the personal property of the king or prince, who is therefore empowered to make whatever laws he wishes.[8]
3. Sages of the “Nachmanidean school” in northern Spain, 13th-14th centuries, draw a comparison between Gentile kings and the king of Israel. Just as the latter are bestowed by God with certain powers necessary for the proper functioning of the state, so too do the former exercise all appropriate royal authority.[9]
4. R. Shmuel ben Meir (Rashbam), a grandson of Rashi, holds that the law of the state is valid in our eyes because “all those who dwell in the kingdom willingly accept the king’s laws and statutes.”[10]
This latter explanation accords with the political theory, current in early medieval Europe, that the power of the ruler emanates from the people and is effectively controlled and limited by their agreement to recognize him as ruler.[11] It also corresponds quite closely to our own understanding of our contemporary political situation. Those of us who live in democratic states in the Diaspora[12] regard ourselves as citizens, as fully participating members of the political community. We, together with our fellow citizens, constitute the state; the government is our agent, put in place to give effect to our political will. The law of the state is therefore a law of our own making, because in contracting together with our fellow citizens we imply our acceptance of that law and its binding authority. This does not mean, of course, that we are in agreement with every decision made by our governments or that we believe that every law enacted is a good one. It means rather that the malkhut itself is legitimate and its law is law, not because these have been imposed upon us against our will but because we ourselves, the citizens of the state, are the malkhut and the legislators who make our political decisions through a process upon which we have agreed beforehand. Our consent to the outcome of this process–that is, to the laws duly enacted by the state–is thereby implied in advance.
Our sho’el is a citizen of the United States. As such, according to our understanding of the principle dina demalkhuta dina, the laws concerning espionage are laws of his own making; he is bound to obey them because in theory he has enacted them through his participation in the political life of his country. In other words, if by “discreetly informing” the Israeli consulate he would violate American law, he would also transgress against Jewish legal teaching concerning the law of the state.
2. Limitations On the Validity of the Law of the State. The principle dina demalkhuta dina does not confer absolute recognition upon any and every “law of the state.” In order to count as legitimate under the halakhah, the “law” must be a legitimate one: that is, it must apply equally to all, drawing no unfair distinctions among the residents of that political community,[13] and it must be accepted as flowing from the established, previously recognized powers of the regime.[14] In addition, Jewish law traditionally limits the application of this principle to monetary law and does not accept as valid state legislation touching upon the realm of ritual practice (issur veheter).[15]
None of these limitations are applicable to our case. Laws which prohibit the unauthorized transfer of confidential information to representatives of foreign governments are not inherently unfair or discriminatory. They are not unjustly and specifically directed against Jews or the state of Israel. They are based upon the desire of a state to protect itself, its people and its institutions from external threat. Since this desire is surely a legitimate one, expressing the “established, previously recognized powers” reserved to all governments, then so long as it has been enacted through the accepted and recognized legislative processes the citizens of the state can be said to acquiesce in the adoption of such laws. To be sure, one might well criticize the wisdom of any particular law or governmental act. It might arguably be better to exempt the government of Israel or of other friendly states from anti-espionage statutes. Yet this is beside the point. The fact that a state might have enacted a better law does not necessarily mean that the law it has enacted is “invalid” from the viewpoint of the Jewish legal tradition. Laws banning espionage, should they be involved in this case, are indeed a legitimate exercise of a state’s authority, and the halakhah would therefore regard them as binding upon Jews as they are upon all other citizens.[16]
3. Concern for Israel vs. Concern for One’s Family. Let us suppose, however, that the sho’el would violate no laws by informing the Israeli consulate of his company’s business activities. At this point, he must draw a balance between his concern for the State of Israel and his duty to provide for his family, since to reveal this information would likely cost him his job.
Clearly, the balance here depends upon a precise measurement of the facts (how threatening are these military applications to Israel’s security? to what degree is one’s job in jeopardy?), a measurement that we are in no position to make. The sho’el can, however, find some guidance in the traditional order of priorities for the distribution of tzedakah, which teach that when one must choose between otherwise equally-deserving recipients, one’s own relatives take precedence over all others.[17] We might observe, too, that while the sho’el‘s failure to transmit this information may or may not pose a significant degree of danger to Israel, the loss of his job and the fear of poverty constitute real and concrete risks to himself and his family. In this instance, we are on solid ground when we grant priority to real danger (vada’i sakanah) over potential or uncertain danger (safek sakanah),[18] thus permitting concern for the family’s welfare to come first.
Conclusion. One’s love for the State of Israel does not necessarily outweigh other vital religious moral responsibilities. As is always the case when our responsibilities conflict, we must arrive at a balance among the priorities they set for us. In this case, the sho’el is under no religious or moral obligation to risk his job and the welfare of his family by informing Israeli government officials of his company’s business activities with Arab states. And, should such informing violate a statute of American law, his action would transgress the principle of dina demalkhuta dina. He is an American citizen, and Jewish tradition permits and expects him to act as such.
Yet nothing we write here should be construed to mean that we hold love for Israel to be a trivial or an insignificant thing. Far from it: the attachment we feel to the State of Israel and its people is one of the most powerful motivating factors in our Jewish religious lives. The Platform on Reform Religious Zionism, adopted by the CCAR on June 24, 1997, is but the latest in a series of official expressions of Reform Judaism’s devotion to Israel,[19] to the security and well-being of its citizens, and to the hope that the building of a just and righteous society in the land of Israel will allow the Jewish state to continue to serves “as the spiritual and cultural focal point of world Jewry.” Because “we stand firm in our love of Zion,” we should seek ways to express that love that are consonant with our other deeply-held religious and moral commitments. The Platform suggests some of these ways:[20]
1. Lending Israel our continued political support and financial assistance.
2. Promoting the knowledge of Hebrew in all our communal institutions.
3. Implementing educational programs and religious practices that reflect and reinforce the bond between Reform Judaism and Zionism.
4. Studying in Israel and visiting there when we can
5. Facilitating aliyah (immigration to Israel).
This is a list, clearly not an exhaustive one, of means by which we can contribute to Israel’s strength and insure that the bonds linking us to the Jewish state will never be broken. We encourage the sho’el, as we would encourage all Jews, to turn his energies and his Jewish devotion to the fulfillment of these goals.
NOTES
1. This is not the proper venue to rehearse the this history, summarized quite well by David Polish, Renew Our Days: The Zionist Issue in Reform Judaism (Jerusalem: World Zionist Organization, 1976). Suffice it here to note the language of the great doctrinal statements of our movement. While the Pittsburgh Platform of 1885 renounced any vestige of Jewish nationhood or desire to restore the Jewish state, the Columbus Platform of 1937 affirmed “the obligation of all Jewry to aid in [Palestine’s] upbuilding as a Jewish homeland…”. The “Centenary Perspective” of 1976 noted that “we are bound to…the newly reborn State of Israel by innumerable religious and ethnic ties…we have both a stake and a responsibility in building the State of Israel, assuring its security and defining its Jewish character.” Finally, the document known as “Reform Judaism and Zionism: A Centenary Platform,” which will be voted upon by the CCAR but which at this writing exists in draft form, declares that “the restoration of Am Yisrael to its ancestral homeland after nearly two thousand years of statelessness and powerlessness represents an historic triumph of the Jewish people, providing a physical refuge, the possibility of religious and cultural renewal on its own soil, and the realization of God’s promise to Abram (Gen. 12:7)…From that distant moment until today, the intense love between Am Yisrael and Eretz Yisrael has never subsided.”
2. Jeremiah29:7.
3. M. Avot 3:2.
4. This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.
5. Shmuel flourished during the rule of the Sassanian King Shapur I (242 C.E.), who relaxed his government’s strictures against the Jews and granted legal and cultural autonomy to the Jewish community. Shmuel was on friendly terms with the king, and his position that dina demalkhuta dina may have been part of his attempt to persuade the Jews to come to terms with the regime. See Jacob Neusner, A History of the Jews in Babylonia (Leiden: Brill, 1965-1967) 2:16, 27, 30; S. Shilo, Dina demalkhuta dina (Jerusalem: Defus Akademi Yerushalayim, 1975), 4-5.
6. BT Gitin 88b, from a midrash upon Ex. 21:1; Yad, Sanhedrin 26:7; SA CM 26:1. On the other hand, Jewish law does not ignore the realities of our political powerlessness. A litigant is permitted to resort to the Gentile authorities when, due to the defendant’s refusal to obey the orders of the beit din, justice cannot be achieved justice in the Jewish court (Yad loc. cit.; SA CM 26:2).
7. Rashi, BT Gitin 9b, s.v. kesherin and chutz migitey nashim. The latter statement makes clear as well that the principle dina demalkhuta dina applies only to dinim and not to the realm of Jewish ritual law; see below, in our discussion of the limitations upon the scope of the principle.
8. R. Eliezer of Metz, cited in Or Zaru`a, Bava Batra, ch. 447; Resp. Maharam Mirotenburg, Prague ed., no. 1001; Lemberg ed., no. 313; Hil. Harosh, Nedarim 3:11; R. Nissim Gerondi to Nedarim 28a, s.v. bemokhes ha`omed me`alav, quoting “Tosafot.
9. See the novellae (chidushim) of Ramban, Rashba, Ritva, and Ran (R. Nissim Gerondi) to Bava Batra 55a; Resp. Rashba 2:134 and 3:109; and Derashot Haran, no. 11. See BT Sanhedrin 20b, where Shmuel declares that “everything mentioned in the description of the king’s powers (parashat melekh; I Samuel 8:11-17) is permitted to him”, and Yad, Melakhim 4:1.
10. Rashbam, Bava Batra 54b, s.v. veha’amar shmuel dina demalkhuta dina. Compare to Rambam (Yad, Gezeilah 5:18), who also attributes the validity of the laws to the fact that the people have willingly accepted (hiskimu alav) the king’s jurisdiction. His language differs from that of Rashbam in that he refers to the people’s agreement that “he will be their master (adoneyhem) and they will be his servants (avadav).”
11. See Walter Ullmann, A History of Political Thought: The Middle Ages (Baltimore: Penguin, 1965), 12-13, who contrasts this conception of law, which he terms the “ascending theory,” with the competing “descending theory” which posits that all political power originates “at the top” and is bestowed by its possessors upon their chosen representatives. The second of the rabbinic explanations, which describes the king as the “owner” of the kingdom, corresponds quite closely to the “descending theory.”
12. Although the principle dina demalkhuta dina originally addressed the reality of a Gentile government in the golah, there is some controversy in the literature as to whether that conception can serve as the theoretical basis for the powers of a Jewish government in the land of Israel. For examples of recent rabbinical scholars who answer “yes” to this question, see the journal Hatorah vehamedinah 1 (1949) 20-26, 27-41,42-45; 5-6 (1953-1954) 306-330; and 9-10 (1958-1959), 36-44. In general, see Shilo, 99-108.
13. See Yad, Gezeilah ve’aveidah 5:14: “a law enacted by the king that applies to all and not for one particular person is not to be regarded as theft (i.e., illegal confiscation of property).” See also Or Zaru`a, Bava Batra, ch. 447, in the name of Rabbenu Tam.
14. See Hagahat Mordekhai, Bava Batra, ch. 659 (fol. 57, col. b, bottom), in the name of R. Tam and R. Yitzchak of Dampierre: “anything instituted by the rulers that is in accordance with the accepted law (al pi din kedumim) is valid law (din gamur hu).” The point is not that the act of legislation itself must be old or that the legislator is forbidden to enact new statutes. Rather, the enactment must be generally accepted as a legitimate exercise of powers that already enjoy “constitutional” recognition (as measured by din kedumim) in that political community. Compare to Yad, Gezeilah ve’aveidah 5:14. And see, in general, Shilo, 191ff.
15. See Shilo, 115ff. For this reason, traditional halakhic authorities have not applied the principle dina demalkhuta dina to the area of marital law (one of issur veheter) in order to accept the validity of civil divorce. The Reform movement in the United States has indeed accepted civil divorce, but precisely on the grounds that divorce has always been regarded in the halakhah as a matter of monetary, rather than ritual law. This argument can be contested, but it does show that Reform thinking on the subject of divorce has followed the lines of the traditional halakhic structure. On the history of Reform and the divorce question see ARR, no. 162; Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1884); and R. Solomon Freehof, Reform Jewish Practice I, 99-110.
16. This responsum does not discuss the issue of civil disobedience, the right (as justified by appeal to morality, natural law, “higher” law, etc.) to refuse to obey a particular law enacted by the state. The reason is that in this particular case, there appear to be no grounds for “conscientious objection” to a law that would forbid the revelation of business secrets: such a law would not be unfair or discriminatory; it represents an exercise of legitimate (i.e., recognized and accepted) state power; and as it does not violate a fundamental tenet of Jewish ritual law it does not violate a Jew’s freedom of religion. For this reason, the sho’el as a citizen can be said to have acquiesced in its enactment, thus stipulating his obligation to obey it.
Having said this, we would point out that the subject of civil disobedience in general is worthy of careful consideration. In this context we would note simply that, based on the theory that a Jew is a citizen like all others, there can be no distinctions between Jews and Gentiles in this regard. That is, if civil disobedience is ever justified, it is justified for all citizens. The principle dina demalkhuta dina cannot be interpreted so as to discriminate against the Jewish citizens of the state, denying to them any right, such as that of civil disobedience, that is enjoyed by all other citizens.
17. BT Bava Metzi`a 71a; Yad, Matanot Aniyim 7:13; SA YD 251:3.
18. See R. Yosef Teomim, Peri Megadim, Mishbetzot Hazahav (OC 328, near the beginning): when confronted with two patients, one of whom is in mortal danger (yesh bo sakanah) while the other is not, and we have but enough medicine to treat one of them, we treat first the patient who is in greater danger.
19. “The Platform on Reform Religious Zionism,” along with its Hebrew text (Hayahadut hareformit vehatziyonut) is published in CCAR Yearbook 106 (1997), 49-57. The Preamble to the Platform (Hebrew, p. 49; English, p. 54) notes that this is hardly the first official statement by the Conference on the subject of Zionism and Israel. The rigidly anti-Zionist stance of the Pittsburgh Platform of 1885 was decisively rejected in the Columbus Platform of 1937 and the Centenary Perspective of 1976.
20. “Platform,” p. 51 (Hebrew) and p. 56 (English).
If needed, please consult Abbreviations used in CCAR Responsa.