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Public Authority

PUBLIC AUTHORITY, in the context of this article, a term referring to an authoritative body composed of representatives of the public – whether appointed or elected by the latter – and entrusted with the duty and power to arrange various matters of common concern to this public. (For particulars concerning a personal authority, see *King and Kingdom; *Nasi; *Exilarch.) It has been stated that "the foundations of the community, as they remained in existence until the modern Enlightenment, were laid mainly in the first generations of the Second Temple period" (Y. Baer, in: Zion, 15 (1950), 1). Attributable to this early period are a number of tannaitic sources incorporating halakhot concerning the "townspeople" (benei ha-ir or anshei ha-ir, Shek. 2:1; BB 1:5), as well as certain beraitot concerning the authority of the townspeople to compel each other toward the satisfaction of public needs in various fields (Tosef., BM 11:23ff.; BB 8a). At the head of such public authority stood the "seven good [elder] citizens" (tovei ha-ir, Jos., Ant., 4:214; TJ, Meg. 3:2, 74a; Meg. 26a). However, it was only with the rise of the Jewish community in various parts of the Diaspora from the tenth century onward that Jewish law came to experience its main development in the field of the laws concerning a public authority. This article deals with aspects of a public authority such as its legal standing, composition and powers, the legal relationship between itself and individual members of the community, and so on. For further particulars concerning the legislative institutions of the community and the related administration of the law, see *Takkanot ha-Kahal; as regards the legal aspects of communal administration in fiscal and financial matters, see *Taxation; *Hekdesh.

Qualifications, Duties, and Standing of Communal Leaders

The qualifications and duties of public representatives are discussed in the Bible and in the Talmud, mainly from the social, moral, and ideological aspects. The ways of the Patriarchs and other leading Jewish figures – such as Moses, Aaron, Samuel, and David – in dealings with the people serve as a basic source of guidance for the relationship between the people and their leaders, between the citizen and the public authority. It has been stated that appointment of "a good public leader [parnas tov] is one of the three things proclaimed by the Almighty Himself" (Ber. 55a; Kal. R. 8); that the Almighty had already shown to Adam "every generation with its leaders" (dor dor u-farnasav, Av. Zar. 5a), and to Moses, "all the leaders destined to serve Israel from the day of its leaving behind the wilderness until the time of the resurrection of the dead" (Sif. Num. 139); that in time to come, "when the Almighty shall renew His world, He shall stand Himself and arrange the leaders of the generation" (Yal., Isa. 454).

The requirements demanded of the leader representing a public authority are many and stringent: "In the past you acted only on your own behalf, from now on [i.e., upon appointment] you are bound in the service of the public" (Yal., Deut. 802); "a leader who domineers over the public" is one of those "whom the mind does not tolerate" (Pes. 113b) and over whom "the Almighty weeps every day" (Ḥag. 5b). It is not only forbidden for a leader to impose undue awe on the community if not intended "for the sake of Heaven" (le-shem shamayim; RH 17a), but he must himself stand in awe of the public (Sot. 40a). The scholars described in various ways the mutual interdependence between the citizen and the public authority: "A leader shall not be imposed on the public unless the latter is first consulted" (Ber. 55a), but once appointed, "even the most ordinary… is like the mightiest of the mighty" (RH 25b), to whom the public owes obedience and honor. This interdependence is illustrated in the difference of opinion between Judah Nesi'ah (grandson of Judah ha-Nasi) and other scholars as to whether the stature of a leader follows that of his generation – parnas le-fi doro – or whether the generation is influenced by its leaders – dor le-fi parnas.

These, and other similar concepts scattered in halakhic and aggadic literature, guided the halakhic scholars in their determination of the principles of Jewish administrative law. A person engaged in public affairs is as one studying the Torah (TJ, Ber. 5:1). Moreover, "If he be engaged in studying the Torah and the time comes for recital of the Shema ["morning prayers"], he shall leave off studying and recite the Shema… if he be engaged in the affairs of the public, he shall not leave off but complete this work, and recite the Shema if there remain time to do so" (Yad., Keri'at Shema 2:5; Sh. Ar., OḤ 70:4; based on Tosef., Ber. 1:4, 2:6; see also Lieberman, Tosefta ki-Feshutah, Berakhot, p. 3). Hence it followed that it was not merely a privilege to represent the public but also a duty. Thus in a case where a member of the community was elected to public office, contrary to his own declared wishes in the matter (namely, appointment as a tax assessor; see *Taxation), it was decided that "no person is free to exempt himself… since every individual is bound in the service of the public in his town… and therefore anyone who has sought to exclude himself from the consensus has done nothing and is bound to fulfill the duties of his office because the community has not agreed that he be excluded" (Resp. Rashba, vol. 3, no. 417; cf. also vol. 1, no. 769; vol. 7, no. 490; Tashbeẓ, 2:98).

In post-talmudic times the legal standing of a public authority was given precise definition based on the central legal doctrine accepted by the scholars of this period as the source of the community's standing and authority to make enactments; namely, that the standing of the communal leadership is assimilated to that of a court (bet din; see *Takkanot ha-Kahal). In a certain case a person sought appointment to a public office; he had previously sworn a false oath with regard to his tax declaration, was fined for so doing, and came to an arrangement with the community concerning this tax payment. It was held by Israel *Isserlein (15th-century scholar of Vienna) that since such a person was unfit for appointment as a dayyan, he was also unfit to be numbered among the leaders of the community: "the leaders of the community fulfill the role of a court when they sit in supervision over the affairs of the public and private individuals" (Pesakim u-Khetavim, no. 214). This principle set a guide standard for the qualifications required of communal leaders (see, e.g., Terumat ha-Deshen, Resp. no. 344): "communal leaders appointed to attend to the needs of the public or private individuals are like dayyanim, and it is forbidden to include among them anyone who is disqualified from adjudicating on account of his own bad conduct" (Rema, ḤM 37: 2). A further reason given by the scholars for assimilating the standing of communal leaders to that of dayyanim is that the duties of the former are largely concerned with providing for the social needs of the community, determination of the measure of support and relief for each being a task of a judicial nature (BB 8b and Rashi thereto; Sh. Ar., YD 256:3; Mishpetei Uziel, ḤM no. 4).

The assimilation of the communal leader's standing to that of dayyan is naturally limited to such powers as he enjoys in his official capacity only. Hence communal leaders who have been empowered to elect a body to supervise public affairs must do so themselves, since they have no power to delegate this authority to others (see below), even though an ordinary court has authority to appoint an agent and entrust him with the execution of certain tasks (Resp. Ribash no. 228).

The Public Authority and Laws of Property and Obligation

The aforementioned assimilation facilitated the solution of a number of problems arising in Jewish law with regard to legal relations between the public authority and the individual. Thus, for instance, the general requirement in Jewish law of a formal act of kinyan (see *Acquisition; *Contract) in order to lend a transaction legal effect would normally have constituted a serious obstacle to the efficient administration of a public authority's multiple affairs. However, beginning in the 13th century, the new legal principle of the validity of any legal transaction effected by a public authority, even without a kinyan, came to be recognized. Apparently this was first laid down by *Meir b. Baruch of Rothenburg in a case concerning the hire of a teacher by the community (quoted in Mordekhai, BM 457. 8). Normally the parties would have been entitled to retract, since no formal kinyan had been effected and the teacher had not yet commenced his work (see *Labor Law), but Meir of Rothenburg decided that there could be no retraction from the contract of hire "because a matter done by the public requires no kinyan – although this would be required in the case of an individual." He based this innovation on a wide construction of a number of talmudic rulings from which it may be inferred that the public has to be regarded differently from the individual, even though these contain no suggestion whatever that a kinyan might be dispensed with in a transaction effected by a public body (Meg: 26a; Git. 36a); in addition he compared the case of a transaction effected by a public body to that of a small *gift, although in this case withdrawal from the transaction is prohibited as amounting to a breach of faith and not because the transaction has full legal validity (i.e., when effected without a formal kinyan; BM 49a; Yad, Mekhirah 7:9; Sh. Ar., ḤM 2; see also *Contract). He further decided that a *suretyship for the fulfillment of the contract of employment between the community and the teacher was valid, even though it had been undertaken without a kinyan and in a manner in which the suretyship would otherwise be of no legal effect (ibid.). This decision is also given as the source of the rule that a gift by a public body is fully valid even if it is made without a formal kinyan (Sh. Ar., ḤM 204:9, and see also Ha-Gra thereto, n. 11). The law was similarly decided in regard to other legal matters affecting the public (see, e.g., Resp. Ribash no. 476; Rema, ḤM 81:1). This principle took root in the Diaspora: "The custom is widespread that whatever the communal leaders decide to do is valid and effective… and neither kinyan nor deed is required" (Resp. Rosh 6:19 and 21); similarly, in Constantinople in the 15th century it was held: "The widely accepted halakhah is that all matters of the public and anything that is done by or before the public is valid, even without kinyan, nor do the laws of alienation and acquisition [hakna'ah] apply in respect of such transactions" (Mayim Amukkim, no. 63); it was likewise decided by Isserles that "All matters of the public require no kinyan" (Rema, ḤM 163:6).

Other fundamental requirements of the law of kinyan were also relaxed with reference to a public authority. It was thus laid down, e.g., that the public may validly acquire something not yet in existence and alienate to someone not yet in existence (Mayim Amukkim, no. 63; see also *Acquisition, Modes of; *Contract); and also that in a public matter *asmakhta constitutes no defect (Resp. Mabit, vol. 2, pt. 2, no. 228). One of the explanations given for this fundamental innovation was that it had to be assumed that in any transaction with which the public was connected the parties would make up their minds absolutely (gemirut ha-da'at), even without a kinyan and notwithstanding the fact of asmakhta and so on (see, e.g., Resp. Ribash no. 476; Rema, ḤM 81:1; Sma, ḤM 204, n. 14); However, the main explanation given for this innovation is the fact that the legal standing of a public authority has to be assimilated to that of a court, that is "because it is influenced by the rule of *hefker bet din… and a public authority, in its dealings with the public, is as a court for the whole world" (Resp. Rashbash no. 566, also no. 112; cf. the statement of Meir of Rothenburg quoted in Mordekhai, BM 457–8; idem, Resp., ed. Prague, no. 38). For the same reason it was held that a public body might not plead that it had not seriously intended a particular transaction, nor that it had erred and not properly understood the nature thereof (Rashbash, loc. cit.).

Relaxation of the requirements of the law of kinyan, of the rule of asmakhta, and so on, in the case of public matters naturally extended not only to the public body but also to the individual transacting with that body, so that he too was not free to withdraw from the transaction, even if it was effected without a kinyan, etc. (Resp. Rashbash no. 112; She'ot de-Rabbanan, no. 14; Ba'ei Ḥayyei ḤM, pt. 2, no. 81; PDR 6: 172f., 180f.).

The Public Authority and the Exercise of its Own Discretion

A basic question of administrative law concerning the power of a public authority to delegate authority in a matter requiring the exercise of its own discretion was extensively dealt with in a responsum of *Isaac b. Sheshet Perfet (Resp. Ribash no. 228). A certain Catalonian community was granted a royal privilege in terms of which three communal trustees, together with the court, were authorized to nominate 30 persons to supervise the affairs of the community, particularly tax matters. The trustees and the court were unable to reach agreement on the execution of their task and instead agreed to elect two persons and delegate to them authority to appoint the 30 communal leaders. When this was done, a section of the community objected on the ground that authority could not be delegated by a body required to exercise its own discretion. In upholding this objection Isaac b. Sheshet held that even if in general an agent could delegate his authority to another – in circumstances where it could be assumed that the principal was not particular about the matter (see *Agency, Law of) – this was not so in the case of a public authority, even though the latter is in a sense an agent of the public. The explanation offered is that no express power to delegate authority was given in the royal privilege, and the matter was of great importance since all the affairs of the community depended on selection of its 30 leaders, and those responsible for their selection had to choose leaders possessing suitable qualities; wise, just, and peace-loving persons, knowledgeable in the affairs of the community: "it is not the intention of the community that those who have to select them [the 30] shall be able to appoint others to act in their own place, even if these others equal them in wisdom and standing"; if, however, the responsible parties had been given express authority to delegate their powers, "then it would be as if the community itself had chosen these two."

In the same matter Isaac b. Sheshet went on to give an important ruling concerning resort to the law of the land in the interpretation of the royal privilege. In his opinion, even if it were to be said that the privilege had been given with the intention that it be construed "only according to the law of the land," and even if according to this "anyone entrusted with a matter may in turn entrust this matter to anyone he chooses," yet in the case under consideration the delegation of authority remained invalid, because the rules of administrative law, so far as the Jewish community was concerned, derived their authority from Jewish law also, which did not allow for the delegation of authority in the case at hand. This ruling also involved no conflict with the law of the land in accordance with which the privilege had been given, since the general authorities were not concerned if the Jewish public failed to avail itself of the powers given under the law of the land, but were only concerned when the Jewish collective interpreted the privilege in such a manner as to lend itself wider authority than was available under this law: "the king is only particular about an extension of authority, not about a narrowing of it" (ibid.).

The Public Authority as an Employer

The great development of Jewish public law that followed on the rise of the Jewish community also made itself felt in the field of master and servant, in relation to employment by a public body. Special requirements relating to a public-service contract had already been emphasized in talmudic law. Thus, it was laid down that if a public-bath attendant, barber, or baker was the only one available and a festival was approaching, he could be restrained from leaving his employment until he provided a replacement (Tosef., BM 11, 27; see also *Contract). In addition, in order to avoid harm to the public, it was laid down that an individual fulfilling his duties to the public in a negligent manner might be dismissed immediately, as in the case of a public gardener, butcher, or bloodletter, a scribe, a teacher of young children, "as well as other like artisans who may cause irretrievable harm, may be dismissed without warning, since they are appointed by the public for as long as they carry out their duties in a proper manner" (Yad, Sekhirut 10:7, based on BM 109a and BB 21b). The majority of the rishonim interpret the rule of the Gemara as also extending to a private servant, considering that he too may be dismissed during the duration of his service contract if he has caused irretrievable damage (Hassagot Rabad, Sekhirut 10:7; Beit ha-Beḥirah, BM 109a; Tur and Sh. Ar., ḤM 306:8; Rema thereto; Sma thereto, n. 19). It was, however, laid down that a servant might not be dismissed without proper warning unless he was continually guilty of slackness in his work, and it must also be proved in the presence of the worker that he was indeed failing in his duties (Rema loc. cit.; Maggid Mishneh, Sekhirut 10:7; Nimmukei Yosef, BM 109a; see also below).

In post-talmudic times the halakhic scholars had to contend with the converse question: namely, whether it was permissible for a public authority to dismiss its servant without justifiable reason, on expiry of the agreed period of service, in the same way as could a private employer, who is free to refrain from renewing his servant's employment. (In modern times Jewish law has come to recognize the master's duty to pay severance pay to his servant on his dismissal: see *Ha'anakah.) The talmudic rule that the high priest may not be dismissed from his office (TJ, Sanh. 2:1) did not serve as an analogy for public servants in general (see Assaf, Mi-Sifrut ha-Ge'onim, 73f.; Sha'arei Teshuvah, nos. 50, 51). From the 12th century, Jewish law consistently tended toward recognition of the principle that a public servant may not be dismissed from his employment except for justifiable reason. Maimonides laid down the general rule: "a person is not removed from a public position in Israel unless he has offended" (Yad, Kelei ha-Mikdash 4:21); also that "it is not proper to dismiss any officeholder from office on account of mere rumors concerning him; this cannot be done even if he has no enemies, all the less so if there are people in the town who are his enemies and have ulterior motives" (his Resp. (ed. Blau) no. 111; this was also the view of Meir ha-Levi and R. *Yom Tov b. Abraham Ishbili (Ritba), see Nov. Ritba to Mak. 13a). This principle was explained on the ground of "avoiding suspicion," that is, termination of the servant's employment with the public may arouse suspicion that the servant is being dismissed on account of his improper conduct (Resp. Rashba, vol. 5, no. 283; quoted also in Beit Yosef, OḤ 53, conclusion).

At the same time, it is held to be permissible to dismiss a public servant whenever it is customary to appoint people in charge of public matters for a fixed period, "so that at the end of it these men depart and are replaced by others, whether they be appointed in charge of food supplies, the charity fund, tax, or any other public service, and whether or not they receive any remuneration for their service; even if no fixed period of service be stipulated for them, the terms of their appointment shall be similarly in accordance with the custom… because of their practice to replace [officials], the suspicion mentioned above is eliminated" (Rashba loc. cit.). In his responsum Solomon ibn Adret confirmed that such was in fact the custom in his time: "that the competent in each generation carry out tasks on behalf of the public, and thereafter depart to be replaced by others." The statement of this twofold principle – that a public servant may not be dismissed without justifiable cause except when it is the custom to hold office for a fixed period only – was accepted as halakhah in the Shulḥan Arukh (OḤ 53:25–26) and was applied in the different centers of Jewish life in respect of all persons employed by a public authority (keneset ha-gedolah, OḤ 53, Beit Yosef; Arukh Ha-Shulḥan, OḤ 53:26; Mishnah Berurah, OḤ 53, no. 73ff.; Even ha-Ezer, Sekhirut 10:7). In modern times attempts have been made to distinguish between different categories of public servants, although there is no apparent justification for this in the halakhic sources (see PDR 3:94ff.).

The discussions concerning dismissal of a public servant also embraced the related and more far-reaching proposition that a public office be transmitted from father to son by way of inheritance. In this respect too there was already the tannaitic rule, on the analogy of a king succeeded by his son (Deut. 17:20), that "all the leaders [parnasim] of Israel have their places taken by their sons" (Sif. Deut. 162; cf. Sifra Ẓav 5). Also Maimonides laid down that "Not only the kingship, but all offices and appointments in Israel are an inheritance from father to son for all time" (Yad, Melakhim, 1:7; Kelei ha-Mikdash, 4:20). In later times a trend toward restriction of this widely stated rule asserted itself. Thus, some scholars held that the rabbinate too was an office that could be passed by inheritance (Resp. Ribash no. 271; Rema, YD 245:22). Others disagreed, taking the view that "the crown of Torah is not an inheritance" (Reap. Maharashdam, YD, no. 85; Shneur Zalman of Lyady, Sh. Ar., OḤ 53:33, et al.). This was also Moses Sofer's original opinion, which he later reversed (Resp. Ḥatam Sofer, OḤ 12 and 13). It was laid down that local custom concerning inheritance of an office was to be followed (Rema loc. cit.). A son can in no event inherit a public office unless he is qualified for it and worthy of doing so (Sifra, loc. cit.; Maim. Yad, Melakhim, 1:7; Rema, Sh. Ar. YD 245:22; Ḥatam Sofer loc. cit.; for further details see OPD 46, 112; PDR 4:211; see also *Labor Law).

Election of Public Officeholders

Questions such as the nomination of candidates, their number, their manner of election, etc., are extensively dealt with in post-talmudic halakhic literature (see *Takkanot ha-Kahal; *Taxation). In modern times, with the renewal of Jewish autonomy in Ereẓ Israel and the establishment of the State of Israel, halakhic discussion has been resumed in relation to various problems arising in connection with the election of officeholders to representative state and municipal bodies. The primary sources relied upon in this discussion are found in the post-talmudic halakhic literature dealing with the leadership and administration of the community and its institutions; sometimes, when these sources do not deal specifically with the subject discussed by modern scholars, a conclusion is reached by way of analogy.

MAJORITY AND MINORITY

The principle of electing a public representative by majority vote was based by the scholars on the doctrine of Aḥarei rabbim le-hattot ("to follow a multitude": Ex. 23:2; see *Majority Rule), which was interpreted to mean "that in all matters to which the community consents the majority is followed" (Resp. Rosh 6:5; in talmudic halakhah the doctrine was interpreted as pertaining to a majority of the court in giving its decision, or to the concept of majority as a legal presumption; see *Takkanot ha-Kahal; *Ḥazakah). At various times extensive discussions and sharp disputes centered around the question of the weight to be attached to the vote of individual members of the community. Many scholars objected to a scale graded in accordance with social and economic standing: "and it makes no difference whether this majority was composed of rich or poor, of scholars or the common people" (Resp. Re'em no. 53). An illiterate person was held to be eligible even for certain public appointments (Resp. Rashba, vol. 3, no. 399).

An informative description of some such disputes is to be found in a responsum of Menahem Mendel *Krochmal (mid-17th-century leader of Moravian Jewry; Ẓemaḥ Ẓedek no. 2). It had been the custom in a certain community for all taxpayers, regardless of their financial standing or education, to participate in the election of communal leaders and the appointment of public officials. Some of the "respected citizens" sought to depart from this custom and to have it laid down that only a person paying tax in excess of a certain rate, or a talmid hakham ("at least qualified as a *ḥaver"), could participate in the elections. Krochmal mentions that the "respected citizens" supported their demand with the argument that "most of the needs and affairs of the public involve the expenditure of money; how is it likely that the opinion of a poor man shall be as weighty as that of a rich man, or the opinion of an am ha-areẓ who is not wealthy be considered in the same way as that of a ḥaver." They further contended that what they were seeking was anyhow customary in "large and important communities." The rest of the community objected to such a change in the system: "the poor, the masses of the people cry out against the derogation of their rights, since they also pay tax and contribute their share, and even if the rich pay more, the poor at any rate find the little they pay to be a greater burden than do the rich in paying much more."

In his decision Krochmal strongly condemned the discriminatory nature of the proposed change in the election system and held that – at the very least – "the little of the poor is balanced against the much of the rich." He nevertheless upheld the custom prevailing in most of the communities of striking a balance between a majority based on the number of souls and a majority based on financial contribution. He also rejected the proposition that those lacking in knowledge of the Torah be deprived of their vote, "lest they separate themselves from the public… which will lead to increased strife in Israel." A change involving discrimination against any section of the public was forbidden except with the unanimous consent of all members of the community, and, added Krochmal, in communities where there was such discrimination it had to be assumed that this had been instituted with the unanimous approval of the entire community. In recent times halakhic scholars have accepted as binding the view that every vote is to carry equal weight (see, e.g., Mishpetei Uziel, ḤM no. 3).

ELIGIBLE AGE

The question of the age at which the right to elect and be elected to public office is acquired has in recent times come to be discussed by analogy with the criterion of age in other fields of the law. The general view is that the usual age of legal capacity – namely 13 years and one day for a man and 12 years and a day for a woman – is not to be relied upon as decisive with regard to the right to participate in elections, since in Jewish law the age of legal capacity is dependent on the specific nature of the legal act involved (see Elon, ILR, 1969, p. 121ff.) and exercise of the voting right carries with it legal consequences affecting the public as a whole – a factor calling for greater maturity on the part of the voter. According to one view, the active right to elect is acquired at 18 years: at this age a person has legal capacity to adjudicate in matters of civil law (dinei mamonot; Sh. Ar., ḤM 7:3) and to perform public religious duties, for instance as a ritual slaughterer (Rema, YD 1:5). Another view is that the right to vote is acquired from the age of 20, paralleling the biblical military age (Ex. 30: 14; Num. 1:3) and the age of full majority, for instance for the purpose of the sale of paternal land which has been inherited (Yad, Mekhirah, 29: 13; Sh. Ar., ḤM 235:9).

In the case of the passive right to be elected, the general view is that the minimal age is 20 years and over. At this age a person has the right to adjudicate in matters of criminal law (dinei nefashot; TJ, Sanh. 4:7) and even – for the purpose of permanent appointment as a dayyan – in matters of civil law (Pitḥei Teshuvah, ḤM 7, n. 4). Other scholars arrive at this age (20) following the minimal age for permanent appointment as a cantor (Sh. Ar., OḤ 53:8) or as an *apotropos (cf. Resp. Ribash no. 20). There is also an opinion that distinguishes between a person elected to a state body, such as the Knesset (by virtue of whose far-reaching substantive powers the function of its representatives is held to be analogous to that of a dayyan adjudicating in matters of the criminal law), and a person elected to a municipal body (whose function is held to be analogous to that of the dayyan adjudicating in matters of the civil law, and who is therefore eligible from the age of 18 years).

WOMEN

A woman's right to elect and be elected to public office has been the subject of much halakhic discussion in recent times. In particular a great deal of opposition has been expressed to granting women the passive right to be elected, such opposition being based on tannaitic and amoraic law (Sif. Deut., 157 and Ber. 49a, respectively): "A woman is not appointed to the kingship, as it is said, 'set a king over thee' (Deut. 17:15) and not a queen; similarly for all offices in Israel none but men are appointed" (Yad, Melakhim 1:5). Some scholars took a different view, basing themselves on the fact that Deborah "judged Israel" (Judg. 4:4), i.e., that she functioned not only as a judge but was also the leader of the people. The rishonim had already commented on the contradiction between the fact of Deborah's leadership and the rule excluding women from public office, a contradiction they sought to reconcile by the qualification that the objection to a woman's leadership is eliminated when she is accepted by the will of the people (Nov. Rashba and Ran, Shevu. 30a; cf. also Tos. to BK 15a and Nid. 50a). On this basis some latter-day scholars have decided that a woman is entitled to elect and be elected (see, e.g., Mishpetei Uziel, ḤM no. 6), their conclusion being influenced by the consideration that under existing social conditions "men and women meet daily in business transactions" (ibid.). Although at the time he gave this decision (in the 1940s) R. Uziel wrote that it was of a purely theoretical nature and was not to be applied in practice (ibid. and see p. 292), it has nevertheless been accepted in practice in the state of Israel by the decisive majority of religious Jewry so far as concerns Knesset and municipal elections.

PERIOD OF RESIDENCE

The period of residence qualifying a person to elect and be elected has generally followed the period laid down for tax liability (see *Taxation; see also Resp. Maharit, vol. 1, no. 569; Mishpetei Uziel, ḤM no. 3).

PROPORTIONAL REPRESENTATION

In detailed decisions, scholars such as Rabbi *Kook, Jacob *Meir, and Ḥayyim *Brody expressed the opinion that the system of elections on a proportional basis answers the requirements of Jewish law, one of their main reasons being that in this way representation in the government of the state and its institutions is offered to all sections of the people (see Sinai, 14 (1943/44), 100–14).

In the State of Israel

IN THE SUPREME COURT

A number of Jewish law principles, concerning the legal standing of a public body and the relationship between the latter and its employees, have been considered and relied upon in decisions of the Supreme Court of Israel. In one case a municipal employee who had been dismissed on a charge of improper conduct applied to the Supreme Court – sitting as a high court of justice – to have his dismissal set aside on the ground that he had been given no opportunity to make himself heard and to answer the charge against himself prior to his dismissal. The court rejected the municipality's plea that in terms of the municipalities' ordinance it had been under no obligation to hear the employee prior to his dismissal and upheld the employee's application, relying mainly on the following principles of Jewish law:

(1) a person appointed to a public office, or holding a position with a public institution, may not be dismissed without a reasonable cause;

(2) municipal councilors are as judges and therefore may not act arbitrarily but must consider a case on its merits;

(3) since the councilors are like judges they have to follow a procedure that accords with natural justice, and a basic principle of Jewish law is that a person subjected to an inquiry must be enabled to appear and state his case (see PD 20, pt. 1 (1966), 29; cf. Resp. Rema no. 108).

In another case the court applied the Jewish law principle that – for the good of the public – there is an obligation to dismiss a public servant who is proved to have neglected his duties after he has been given due warning (see PD 20, pt. 1 (1966), 41). In another instance the court, relying on the principle that a member of a public body is as a judge, concluded that no fault was to be found with a publicly elected official for not always following the opinions of those by whom he had been elected, since he has to act as a judge seeking the truth of a matter (PD 21, pt. 1 (1967), 59), provided only that he does so upon mature consideration and does not irresponsibly and often change his views (PD 20, pt. 1 (1966), 651). Another principle of Jewish law which the court has applied precludes a judge from adjudging a matter from which he stands to derive personal benefit, and in terms of this the court set aside the decision of a local council which had been taken with the participation of a councilor who had a personal interest in the matter (ibid., 102; see also PD 19, pt. 3 (1965), 393).

IN THE RABBINICAL COURTS

There is among others a decision of the rabbinical court on a basic problem that has arisen in recent years, touching on the above-mentioned rules of Jewish administrative law (the court in this instance sitting as an arbitral body since its jurisdictional authority is confined to matters of personal status; see *Mishpat Ivri). Three political parties entered the municipal elections under a joint list, having agreed that if only two of their candidates were elected then the second one on the list resign in favor of the next candidate on the list; only two candidates were elected and the second one refused to resign as agreed. It was contended before the court that the agreement was invalid because it had not been effected by means of a kinyan, because it related to something not yet in existence (the agreement having been concluded prior to the elections), and because it was defective on account of asmakhta (i.e., since the parties had been confident that more than two of their candidates would be elected, there had been no gemirut ha-da'at). The court rejected all these contentions and upheld the validity of the agreement, relying on the principles discussed above governing a public authority. The court emphasized that these principles applied not only to a public authority administering municipal affairs, but also to the public constituting a political party: "If it is the rule that in public matters there is no need for a kinyan, and the power of the public in its doings is so great that it is not restricted by the limitations imposed on the legal act of an individual – for instance as regards something that is not yet in existence, asmakhta, etc. – then there is no matter that is more eminently of a public nature than the matter under consideration, namely the composition of the public leadership" (PDR 6:176). It was accordingly held that the second one of the elected representatives was obliged to resign, as undertaken in the agreement. The decision was confirmed on appeal (ibid. 178ff.) and in addition the following guiding principle in the field of Jewish administrative law was laid down: "We have to add and say to the litigants that public leaders should not, in the course of their public duties, avail themselves of the plea that they are not bound by their own undertakings because of their questionable legal validity. Statements and undertakings, particularly in public affairs, are sacred matters which have to be observed and fulfilled wholeheartedly, in letter and spirit… for the public is always bound by its statements and may not retract" (ibid.).

BIBLIOGRAPHY:

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