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.
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).
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).
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.
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.