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Rosh Kollel: Rabbi Mordecai Kornfeld
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General: Smuggling into Eretz Yisrael
alex lebovits asked:
Is it mutar to smuggle something into Eretz Yisroel today?
Thank you
alex lebovits, toronto, canada
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The Kollel replies*:
If you peruse the Halachic literature pertaining to your question, you will not
find an abundance of material, especially from the contemporary Poskim. Also,
if you go to the major Poskim with your question I'm not sure that they will
answer your question so readily. The reason is that we are dealing with a very
sensitive area of Halachah, and the Poskim are concerned that their words would
be misunderstood and misconstrued and the potential for Chilul ha'Shem is great.
I certainly wouldn't presume to give you a definitive answer to your question.
Instead I will go through the issues around which your question revolves.
The Gemara Bava Basra (54b), among other places, tell us that there is a
concept called Dina d'Malchusa Dina, which means simply that the law of the
land is equivalent to Halachah. There is a dispute among the Rishonim
concerning what areas of law are effected by this concept (see Rema, Shulchan
Aruch 369:8). Everyone, though, agrees that at the very least it relates to
tax law, which is what our question involves - avoiding the customs duty on
imported items.
There is another dispute among the Rishonim whether this concept applies to
Jewish kings in Eretz Yisrael or not. The Rashba (Nedarim 28a), the Ran (op.
cit.), and the Nimukei Yosef (op. cit.) all say in the name of Tosfos that this
concept only applies to kingdoms outside of Eretz Yisrael, but not to a Jewish
king in Eretz Yisrael. The reason is that Jews outside of Eretz Yisrael have
no intrinsic right to live where they are, and as such the king of that land
has the right to demand from them taxes; not so in Eretz Yisrael where we are
all partners. (According to this reasoning one could ask what the status of
Dina d'Malchusa Dina is in today's democracies that grant full citizenship to
their Jewish residents). The Rambam (Hilchos Gezeilah v'Aveidah 5:11) holds
that the concept of Dina d'Malchusa Dina applies even to Jewish kings in Eretz
Yisrael. The Shulchan Aruch (CM 369:6) decides in favor of the Rambam.
Furthermore, the Poskim say that when it comes to the opini!
on of
the Shulchan Aruch we cannot apply the principal of Keem Lee (the right to
follow - in monetary matters - an alternative opinion).
Even if we follow the opinion of the Rambam, the question remains whether Dina
d'Malchusa Dina applies to today's elected governments or only to kings.
Democracies, by Jewish time standards, are a new concept and not much discussed
by the Gemara and Rishonim. The Rashbam in Bava Basra (54b), however, in
defining the concept of Dina d'Malchusa Dina says that the basis of the king's
power to promulgate laws which are binding on everyone, is his acceptance by
the populace (as opposed to some divine right invested in him). That statement
would suggest that the basis of Dina d'Malchusa Dina is not in the special
quality of the king, but rather in the justness of the law. In that case, we
would expect the concept to apply equally to elected governments. In fact,
there are Poskim (Responsa Yaskil Avdi #2, Responsa Pe'as Sadechah #91) that
hold that Dina d'Malchusa Dina applies to elected governments including the
Israeli Knesset. This is, of course, on condition that they !
don't
pass laws which contradict Torah law (Responsa Chasam Sofer, CM #44).
What follows from all of this is that there is a case to be made that smuggling
into Eretz Yisroel is forbidden by Halachah.
One idea to add, though, that I have not found in any written source, but that
I heard from a prominent Posek: Dina d'Malchusa Dina does not apply to laws
which are not vigorously enforced by the government and which are routinely
violated by the populace. According to this, if people routinely enter Israel
without declaring the electronics that they bought abroad, then Dina d'Malchusa
Dina wouldn't apply here.
Kol Tuv,
Yonasan Sigler
*This reply is not intended to be a Psak Halachah. Please consult your local
Rav for an actual Psak.
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