Halacha and the Common Law Part Four: The Consent of the Governed

By Aaron Lang. What kind of polity gives rise to a system of law that defines the status of people, property and acts? We compare the basis of sovereignty in common law countries with a commonwealth in halacha.

Title to land in America follows a chain that originates from an original grant by the state. Heirless intestate land escheats to the state and does not become הפקר.  The law of escheat is blind as to whether the state is governed by the many in their corporate capacity, by the few in partnership, or by a single ruler. In proprietary colonies, land escheated to the proprietor. The holding of the proprietor eventually escheated to the Crown, as most colonies become royal colonies. Today, in England, ownerless land still escheats to the Crown, whereas in America, land escheats to the State, which replaced the Crown.

In the 1600’s land in Virginia escheated to the Virginia Company. Land in Massachusetts escheated to the Massachusetts Bay Company. Every colony maintained sovereignty over its territory and taxed with the aid of an elected council, whether they were owned by public corporations whose owners bought and sold their shares on the market, by a single proprietor, or by the Crown. Today, the state is owned by the people in their corporate capacity. It exercises at least the same degree of sovereignty as the joint-stock companies exercised almost 400 years ago.

It is settled law that one who bought land directly from an Indian tribe will not prevail against a third party that bought the same land from the government at a later date.[1] Ultimately, the chain of title has to trace to the state. Land ownership in America, therefore, is not a שותפות without a sovereign, but founded upon a substratum of sovereignty over the land, in this case of the people in their corporate capacity, above which the individual holds his fee.

The power of the purse historically correlated with political power. Monarchies that failed to convene Parliaments were limited to established revenues. Nations that devised legislatures to tax under the consent of the governed to meet their needs avoided violent revolutions. Societies that developed the principal of taxation by representation have thrived.

The temporal power of sovereignty over the land did not exist in biblical Israel. The right to the land did not rest with an earthly sovereign. Ownerless land did not escheat to the government but became הפקר. The implication of this halacha, as found in the writings of Talmudic scholars before Magna Charta, is that government cannot legislate or tax without consent.[2] People owned land in their own name, not on top of the title of their rulers. The people also held land in complete equality.

 If a person became indebted, he could not be forced to pay interest. If he could not pay back at all, and if his land was not encumbered by the loan, the loan was forgiven in the seventh year. If the lender took encumbered land, it was returned in the year of Jubilee. Note carefully. The loss of land has been the source of disenfranchisement, oppression and revolution throughout the ages. Since land in ancient Israel was inalienable, there was no escheat, no original acquisition by a sovereign. Without the power of escheat, government lacked legislative capacity over the people and their property as a sovereign. Authority remained with the people requiring their consent to taxation, providing a fundamental political blessing and bulwark for liberty.

An employer offering a job to a worker is bound to pay the agreed wages, even without a kinyan. He is גמר ומשבעד to pay the wages under the law of arev.[3] A party entering into the reciprocal relationship of a partnership is גמר ומשעבד  to share the דבר שלא בא לעולם profits without kinyan. [4] However, without the reciprocal relationship of a partnership, the loss of ownership of labor for a period of time would amount to slavery, requiring a different kind of kinyan, which has long been abolished.

The majority in a partnership or in a trade guild can bind the minority to rules governing or restricting the work product of all members. The collective has a claim and a compulsion against the individual by virtue of their coming together in mutual society. In the same manner, all people living within a city are bound to one another for their protection and benefit.[5] This is the origin of the consent of majority, the power to tax and govern without a sovereign. It is the true social contract [6].

This distinction is great. A nation in which the people in their corporate capacity own the land, as in the אמות העלום including modern democracies, has the power to tax and legislate over every aspect of property. The government is the original possessor of the land.  It has power of escheat and hence a claim to the individual and his property.[7] In a tax dispute, the government can seize the property of a taxpayer placing the burden of proof on the individual. The government and its courts can regulate contracts and the relationship between contracting parties since דינא דמלכותא דינא. By contrast, in a nation in which the individual owns his land by way of right, as in Israel, there is no rule of דינא דמלכותא דינא, the power of the state to tax and legislate derives purely from the consent of the majority. The commonwealth has the burden of proof in a case against an individual taxpayer, although the taxpayer still has the burden of providing security for his case.[8]

Conclusion

Duty in halacha is guided by the requirement of a ma’asa. Liability is evaluated by the commission of a ma’asa. This requisite differs from the actus reus element of the common law. The common law is essentially utilitarian, looking toward social policy, measuring prudence with respect to consequences. Halacha, by contrast, is an intrinsically moral system of law, evaluating the universal act, maintaining exacting logical consistency in defining relationships between people and their property. 


[1].  Johnson and Graham’s Lessee v. William M’Intosh, 8 Wheaton, 543(1815)

[2].    Or Zarua wrote in the name of Rabbi Eliezer Mitz ובמלכי ישראל לא אמ’ דיניה דינה וכו’.

[3].         ע’ ריטב”א ב”מ  עג ד”ה  חמרא ופשע ולא מזבן ליה וכו’:וזה ענין שכירות פועלים דפרקין לקמן שחייבין לשלם לבעה”ב מה שמפסיד כשחזרו בהן או שבעה”ב חייב לשלם מה שמפסידין דכיון שסמכו זה על זה נתחייב זה לזה במ שיפסידו על פיו. וזה דין גדול.

[4]. 176 Choshen Mishpat 3.

[5].                    ע’ גר”א ט’קס”ג ס”ק ט: כל צרכי כו’ כל בעלי כו’ ב”ק קטז ב ורשאין החמרין להתנות כו’ ש”מ שכל השותפין בעיניני שותפתן הן כב”ד הגדול כמ”ש הר”ח שם דאפ’ בלא קנין איירי  וכן הנהו טבחי בב”ב ט’ א’ שהם כבני העיר להתנות ולכסיע על קצתן וכמ”ש המרדכי שם וה”ה כאן כל הנותני מס.            

[6] See 231 Choshen Mishpat 28 for a discussion of whether laws of the community are decided by the majority in the presence of all or by simple majority. See 163 Choshen Mishpat 1, where majority of the seats of city executive/judicial council are determined by majority vote, while only a minority may be allocated by those paying the majority of taxes. Perhaps this is a balance between one-man, one-vote and money is speech for which the Court has struggled since Buckley v. Valeo. 424 U.S. 1 (1976).

[7]. אגב Local merchants used to bring a claim of בר מתא אחריתי to prevent outsiders from doing business in Lakewood. This claim is a טעות. The most pressing concern in forming the United States government was for the states to gave up their right to restrict the commercial competition of outsiders in their jurisdictions. The interstate commerce powers delegated to the national legislature in Article I, Sect. 8 and the Privileges and Immunities Clause of Article IV of the Constitution absolutely prohibit all forms of economic protectionism. It is clear beyond a doubt from the רשב”א ח”א תרס”ד, the מהרשד’ם תמ’א, and the נחלת שבעה  ג’, that a country with an open economy has no דין of בר מתא אחריתי, and according to the מבי’ט ח”ג ל’א, the דין of בר מתא אחריתי אחריתי applies in as far as that a בר מתא אחריתי could do business in the city competing with a local resident on different block.

[8].  ע’ ב”ב כד ב: קידרא דבי שותפי לא חמימא ולא קרירא. 

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4 COMMENTS

  1. The inscription on the Liberty Bell is:

    “Proclaim LIBERTY throughout all the Land unto all the Inhabitants thereof Lev. XXV X. By Order of the ASSEMBLY of the Province of PENSYLVANIA for the State House in Philada .Pass and Stow. Philada MDCCLIII. (1753). This comes from:

    וקדשתם את שנת החמשים שנה וקראתם דרור בארץ לכל ישביה יובל היא תהיה לכם ושבתם איש אל אחתו ואיש אל משפחתו תשבו

    Member of the Pennsylvania Assembly certainly had in mind the freedom from servitude.

    חז”ל להבדיל begining with ממיץ ר” א, Tosofos, followed by the Rasha, Ran and Ritvah descerned a deeper meaning that there is no
    דינא דמלכותא דינא.

  2. The Rambam and Rashba are referring the commander in chief, police and eminent domain powers. However, these power do not extend to laws regulating commerce, the structure of the state (its role in the economy) or the general power of the purse whidh is the fundamental power of the modernnation-state.

    Looking at history, even להבדיל the British monararch had war and police powers and but his income was fixed. Parliaments had to be elected in order to pass new laws and to fund the growing expenses of government.

    Madison להבדיל wrote in The Federalist #58:

    “the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

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