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‘The Law of the Kingdom Is the Law’

This week’s ‘Daf Yomi’ Talmud study refutes the ‘dual loyalty’ charges against Jews

Adam Kirsch
June 23, 2015
Main image: Antisemitic riots in an engraving of Le Petit Parisien.Wikipedia
Main image: Antisemitic riots in an engraving of Le Petit Parisien.Wikipedia

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Dina de’malkhuta dina: “The law of the kingdom is the law.” This Aramaic phrase is one of the most famous quotations from the Talmud, and one of the most consequential. It seems to refute, in just three words, the accusation that has been brought against the Jews again and again in the history of the Exile—the idea that Jews are loyal only to themselves, not to the governments they live under. This was the charge that Haman used to convince Ahasuerus to massacre the Jews of Persia, and it was the charge hurled against Alfred Dreyfus when he was framed for spying. In the form of complaints about “dual loyalty” to Israel, it continues to echo even in America today. After all, didn’t the Jews bring with them into Diaspora a set of books—the Talmud itself—which prescribes laws for every area of human life, from money to ritual and from sex to agriculture? How can they be bound simultaneously by those laws and by the laws of non-Jewish governments and societies, especially ones that were often hostile and predatory?

The answer to these momentous questions was given in this week’s Daf Yomi reading, and in a surprisingly casual fashion. The formula dina de’malkhuta dina is not introduced with fanfare but alluded to in the context of a different issue entirely—the problem of taking vows under duress. As we have seen over the last several weeks, the rabbis are eager to find grounds for dissolving most vows, which they view not as pious gestures but as stumbling blocks that can lead to sin. If a Jew makes a vow he can’t or doesn’t want to keep, the rabbis think it is much better to have that vow formally dissolved, by a sage or a court, rather than keep it in force and tempt the vower to violate it. Last week we read about several categories of vows that can be dissolved automatically, without even the need to consult a judge. These included vows of exhortation—for example, vowing never to accept less than a certain price in a business negotiation. Such promises are clearly meant for rhetorical effect, not as sincere vows to God.

In this week’s reading, we learned about other kinds of invalid vows. Vows of exaggeration are cases when someone swears to the truth of a clearly hyperbolic statement: for instance, “It is konam for me” (a standard vow formula) “if I did not see on this road as many as those who ascended from Egypt.” Since 600,000 Jews participated in the Exodus, it is highly unlikely that the person taking such a vow really believed he was making an accurate estimate; he was simply trying to emphasize that it was a lot of people. (This strikes me as similar to the way the word “literally” has come to mean its opposite in English today: If I were to say, “there were literally a million people on the street,” it would be clear that I meant “not literally.”) Therefore he is not held to his vow.

We have seen before in Tractate Nedarim that people could apparently be quite clever in redefining their vows to their own advantage. Last week, for instance, we heard about the example of a man who swears to have nothing to do with his wife, then claims he really meant his ex-wife. This week, in Nedarim 24b, the Gemara wonders what would happen if the person who vowed he saw “as many as those who ascended from Egypt” went on to claim that he never meant “as many people”: “And perhaps this man saw an anthill and called them ‘those who ascended from Egypt.’ ” In that case, is the vow still considered mere exaggeration, or should it be considered a serious vow, since conceivably (the rabbis imagine) one might actually see 600,000 ants?

As often happens in the Talmud, this apparently frivolous example opens up a major philosophical issue. In this case, the issue is language: When a person swears a vow, or makes a statement in court, is he allowed to assign his words a private meaning, or is he obligated to follow the ordinary meaning? Questions about the possibility of a private language and the communal meaning of words became central to philosophy in the 20th century, in the work of thinkers like Wittgenstein; but as often happens, the rabbis turn out to have gotten there first. Rav Ashi takes the commonsense view that a person cannot change the meaning of words just by intending to do so. “When he takes an oath, he takes an oath based on our understanding,” Rav Ashi says. In the case of the vow about the 600,000, “we do not entertain the possibility in our mind that he is referring to ants.” “Our understanding,” by which he means the understanding of an ordinary observer, is what defines the meaning of words and expressions.

But the Gemara challenges Rav Ashi’s view. “And does a person not take an oath according to his own understanding?” the rabbis ask in Nedarim 25a. They point out that when a judge administers an oath in court, the formula he uses is: “Know that we do not administer an oath to you based on a stipulation in your heart. Rather your oath is based on our understanding and on the understanding of the court.” In other words, the court has to specifically warn the oath-taker not to adopt a private meaning; this might seem to imply that, if no such warning is given, a private meaning is valid.

In discussing this issue, the Gemara mentions an apparently real case known as “the cane of Rava,” which ought to be in the dictionary under the definition of chutzpah. In this case, a debtor claimed that he had repaid his debt, while the creditor insisted the debt was still owing. The debtor connived to fill a hollow cane with coins, which he tricked the creditor into holding by saying that he needed his hands free to hold a Torah scroll. Once the creditor had the cane in hand, the debtor swore that he had given the creditor back all his money. Technically this was true, since he was at that moment holding the money in the cane; but of course the creditor didn’t know this. The charade was exposed when the creditor got angry and broke the cane, whereupon the money fell out. It was to prevent this kind of chicanery—which is almost impressive in its ingenuity—that judges added the language about “the understanding of the court.”

In addition to vows of exaggeration, the rabbis hold that unintentional vows are also invalid. Here, unintentional means not that a person didn’t intend to say the words of the vow—it’s hard to imagine a scenario in which one accidentally makes a vow—but rather that he made the vow while ignorant of some pertinent information. For instance, if someone swore, “Benefiting from me is konam for my wife because she stole my purse or she hit my son,” and then he finds out that his wife actually didn’t commit those acts, his vow is nullified. Likewise, if a person swears that a group of people cannot eat his figs, and then he discovers that someone is part of the group whom he would want to permit to eat the figs—for instance, his father—then the vow is invalid. This leads to another major principle of vowing, established by Rabbi Akiva: “A vow that was partially dissolved is dissolved completely.” Say, for instance, that I swear to abstain from wine for a year. Because it is required to drink wine on Shabbat and holidays, it is clear that this vow cannot include every day of the year, only weekdays. For that reason, it is completely dissolved, and therefore I can drink on any day, even weekdays.

Finally, the rabbis address the vexed ethical question of vows made under duress; and here is where dina de’malkhuta dina comes in. Immanuel Kant famously believed that it was always wrong to lie, even in the case of lying to a murderer about the whereabouts of his intended victim. The Talmud, however, is interested above all in the preservation of life, and so it is inclined to forgive vows made under threat of violence or theft. “One may take a vow to murderers, or to robbers, or to tax collectors,” says the mishna in Nedarim 27b. The part about murderers and robbers is pretty self-explanatory. If someone threatens to kill you unless you reveal where some money is kept, and you say you don’t know where it is, and add, “Benefiting from me is konam for my wife if I’m not telling the truth,” the vow is not valid.

But what about the tax collectors? Is it really all right to lie to tax collectors, who are appointed representatives of the state?” As the Gemara says, “But didn’t Shmuel say, The law of the kingdom is the law”? The rabbis quickly clarify that legitimate tax collectors can’t be lied to. It is only “a tax collector who establishes himself as such independently,” or “a tax collector who has no fixed amount,” whom it is permitted to evade. At a time when tax collection was not a uniform process controlled by a bureaucracy, but a kind of freelance extortion by royal agents and noblemen—think of Robin Hood and the Sheriff of Nottingham—the Talmud allows Jews to distinguish between legitimate and illegitimate uses of authority. The rabbis don’t say much more about this question—the whole issue is disposed of in a few lines—but of course the issues at stake have enormous consequences for the well-being of Jews living in hostile gentile societies. No wonder those three Aramaic words have inspired whole shelves full of commentaries.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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