“The Law of the Land and Jewish Law "

The Sephardic Expansion of the Principle

In Islamic and Christian Spain the principle soon went beyond the authority of tax collectors and documents issued by a non­Jewish court, but was broadened to include a series of other mat­ters. Jews often preferred to use non-Jewish courts to settle their affairs and quarrels with other Jews and with Gentiles. We should remember the Talmudic and Gaonic objections to this," but the later ruling of R. Tam was generally accepted. He opposed a Jew forcing another into the secular courts, but if both agreed to use them, then it was permissible. A further development in the early Middle Ages led to dina demalkhuta dina becoming part of Jewish law and not merely law for the Jewish population. Rabbenu Tam did this by utilizing the principle of hefker bet din hefker.2 Slightly earlier the same effect was brought to the prin­ciple through inclusion in the code of Maimonides. ?!

In twelfth-century Spain the transfer of any property(sale, gift, will, etc.) through a Gentile court was recognized.# This was so despite the fact that other authorities considered wills and ketubot outside the realm of Gentile courts? and excluded them from dina demalkhuta dina. Later others also considered such documents within the power of the ruler, and valid if writ­ten in the language of the land?; and even when the marriage was done under Gentile auspices, the document was not consid­ered invalid.?® So we see a case in which Isaac b. Sheshet(Barfat) invalidated a Gentile marriage, but upheld the ketubah issued with it;? sometimes Gentile practices were accepted into the Jew­ ish court system.

In Aragon we have the curious example of a ruler demand­Ing that his court decide an issue between two Jews in accor­dance with Jewish law, as the bet din had been unable to reach a timely decision.?’ Still later Joseph Caro provided an interesting twist by making a distinction between a ketubah issued in a Christian land where the king made no such demands, and a Moslem land where such documents were subject to royal decrees. Concerns were also expressed about the fairness of the courts and whether they were influenced by bribes.”

The most bitterly debated issue was the appointment of communal leaders through royal decree. Did dina demalkhuta dina permit this? As we have seen, this had occurred without question throughout the talmudic period in Persia . The Exilarch