Jewish Law Responds to American Law 167

mental law in which Jewish law is subordinate to the law of the land. In the third century C.E., Samuel, one of the two preemi­nent legal scholars of the Babylonian-Jewish community, acknowledged the necessity and legitimacy of Jews to obey the laws of the various lands in which they lived. This still authori­tative principle is dina de-malkhuta dina,“the law of the govern­ment is the law.”*! Parenthetically, it must be admitted that this principle is not as clear when relating to the intensely difficult moral questions that arise in the matters of brain death or organ donation. The differentiation between the response to post mortem examinations and the definitions of death and the process of giving organ donations relates to the simple reality that the post mortem examination is upon the body of one who is already dead. The other issues impact upon the living.

Dorff and Rosett see the doctrine of dina de-malkhuta dina as essentially annulling Jewish law in a situation where it must yield, because of the governing power of the law, to the secular authority.“Samuel's principle effectively abrogates Jewish law in the areas to which it is applied.”** Elon views it as an accommo­dation to secular authority not because Jewish law may not be applicable but because it must accede to the regulations of the governing authority.**®“Abraham b.(en) David(Rabad), a halackhic authority of the twelfth century C.E., laid down as a general proposition that whenever there is a lacuna in the law, it may be filled by resort to non-Jewish law.”** Thus, the question of resisting the authority of the coroner's determination to per­form an autopsy where the law mandates such a procedure would not be raised under the rubric of Jewish law.*®

The question, which motivated this study, has non-con­flicting contradictory answers. Has there been an influence of Anglo-American law upon Jewish law? Has American law been influenced, in any measure, by Jewish law? The response 1s a clear yes and no! It is obvious that there has been a congruent attempt by both systems of law to deal with the same new ethi­cal and moral dilemma derived from advances in medical tech­nology which confront us. Equally, in those areas of Jewish i which parallel secular law such as marriage and divorce, Jews law has had to find ways to accommodate to the authoritative secular law. At the same time mechanisms, primarily arbitration, have been accepted by secular law to permit Jewish law to oper­ate in areas of legal conflict.