Public Authority
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 *hefkerbet 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.).
[Menachem Elon]
Court Rulings on Issues Relating to Public Authority
The courts in the State of Israel, particularly the Supreme Court, have on more than one occasion had recourse to Jewish law when discussing various issues relating to public authorities. In this respect, one may draw a distinction between two different periods in time. Until the mid-1970s, the policy in this area was characterized by judicial restraint and moderation. The court limited its grounds for reviewing public authorities almost exclusively to those cases where the latter exceeded its authority, and avoided intervening in the decisions themselves or an examination of their reasonability.
During this period, Jewish law served as a reference for a number of legal procedures in the area of administrative law. Thus, for example, Justice Silberg laid down the obligation of the public sector to consult with the public prior to making appointments to public office (Aboudi case, see below). In a number of other cases, the court discussed issues of dismissal of public employees (see below).
In the late 1970s, a major change came about in Israeli public law. The public authorities, with all its institutions and employees, became one of the most conspicuous focuses of Supreme Court rulings in Israel. This effect also became apparent in other judicial instances. The broadening of the "right of standing" in the High Court of Justice and the development of additional grounds for judicial review of the actions of the public sector (such as reasonability, arbitrariness, discrimination, unlawful considerations and so forth) led to massive intervention on the part of the judicial authorities in the actions of the public sector, and to the development of many new laws in this field.
In view of the little legislation governing public law in Israel, it has developed mainly by means of court rulings. More than once, those sitting in judgment have taken into account sources of Jewish law when studying various related issues. In 1980 the Foundations of the Law Act was enacted (see *Mishpat Ivri: The Law in the State of Israel), requiring the court to refer to the principles of "justice, freedom, integrity and peace of Israel's heritage" in all those cases where no answer could be found in the standard legal sources (e.g., legislation, case law, analogy). In 1992, two Basic Laws were passed – Basic Law: Human Dignity and Freedom; and Basic Law: Freedom of Occupation – that also required that the sources of Jewish law be examined for the interpretation of various basic rights included therein in accordance with "the values of a Jewish state." These acts of legislation made a very significant contribution to increasing the degree of recourse to the sources in Jewish law dealing in constitutional and administrative law.
In this context, a most important contribution was made by court rulings, especially those of the Supreme Court justices, who anchored many of the procedures they established in sources of Jewish law. The basis for this was the considerable quantity of material in the field of administrative law in Jewish law which, according to Justice Menachem Elon, saw "great development and rich creativity with the rise in power and status of the Jewish community from the 10th century onward. The Jewish community in various parts of the Diaspora enjoyed broad internal and judicial autonomy and, as a result of the diverse activities of community leadership in various public and administrative spheres, numerous principles of Jewish administrative law were developed and formulated. In some cases this internal autonomy was given, not only to an individual community within its own borders, but to associations of communities in many parts of the Diaspora, or a large number of communities within the bounds of the same association" (hc 702/79, Goldberg v. Ramat Hasharon Municipal Council Head, 34 (4) pd 89; hc 376/81, Lugasi v. Minister of Communication et al., 36 (2) pd 467; cf. M. Elon, Ha-Mishpat Ha-Ivri, 547ff; 558ff; hc 333/78, Bank Leumi Le-Israel Trust Company v. Estate Duty Administration, 32 (3) pd i. 212; hc 323/81 Wilozni v. Jerusalem Rabbinical Court of Appeals, 36 (2) pd 741ff.). On the basis of this valuable material, the Israel Supreme Court had recourse to various aspects of Jewish law when establishing the procedures of Israeli public law. We shall present below a general review of the subjects discussed in these rulings, in the different judicial instances.
public figures as "trustees"
One of the governing principles of administrative law in Israel is the conception of public figures as "trustees" of the community's assets and rights. The status of "trustee," is known in many legal systems, with its origin in the laws of trusteeship in private law, and it imposes special obligations on public employees and elected public officers.
With the large-scale creation and development of Jewish administrative law from the 10th century onwards, alongside the increase in strength and status of the community within the framework of internal Jewish autonomy, the concept of trusteeship as the essence of the role of the public official was also expressed in the terminology of Jewish public administration. Justice Elon (hc 4566/90, David Dekel v. Minister of Finance et al., 45 (1) pd 34) pointed out that a foreshadowing of the application of the laws of trusteeship with regard to public figures is already found in Jewish law, in which community leaders and people filling public positions in different areas of community life were known as "trustees" or "trustees of the congregation" (parnasim or parnasei ha-ẓibbur; see, for example, the responsum of Rabbi Joseph Bonfils (Tov Elem) in Resp. Maharam of Rothenberg, 23; cf. Resp. Rashba, vols. 3:398; 4:112; 5:259, 7:353; Resp. Ribash, 33, 61, 198, 228, 399; Tashbeẓ, 1.23; Resp. Rashbash, 287; and cf. Digest of Responsa of the Sages of Spain and North Africa, ed M. Elon, Legal Digest, vol. 2, s.v. Congregation, 414–15).
This quality of "trustee" was already identified by the Sages as attributable to Moses, the leader of Israel (see Prov. 28:20; Exodus Rabbah 51.1). As "trustee of the community," according to the Midrash, he took care to ensure that two other people would calculate and supervise the money he expended from the people's donations for the Tabernacle (see Ramban, Sforno, and Ha-Emek Davar to Gen 47:14). This title for public leaders and rulers in the Jewish community expresses the essential nature of their authority as being entrusted with power for the welfare of the community, and everything evolved from the obligations of this trusteeship, in accordance with the principles of justice and integrity of the Jewish heritage.
the obligation of consulting the community prior to making an appointment
In one case that came before it, the Supreme Court was asked to intervene in the actions of the Elections Committee for the Chief Rabbinate (fh 12/60 Aboudi v. Minister of Religious Affairs et al., pd 14, 2084). In this context, Justice Silberg insisted upon the obligation of the public authority to consult with the community prior to appointing people to public positions (see below). This principle is derived from the work of the Tabernacle, prior to which God asked Moses to turn to the people of Israel for their opinion as to whether he was worthy of the exalted position of building the Tabernacle (Ber. 55b). The court quoted the response of R. Moses Sofer, who was fiercely critical of the appointment of a rabbi against the wishes of the community (Resp. Ḥatam Sofer Ḥm, 19). This principle was also discussed by the Supreme Court in a case relating to the appointment of a rabbi to the local council. The presiding judge, Justice Türkel, ruled that, given that the obligation of consulting the community is a fundamental principle in Jewish law for the appointment of public officials (see Ber. 55b; Sh. Ar., Ḥm. 3; Resp. Ribash, 271), and this obligation had not been fulfilled, the appointed rabbi should be disqualified from serving in the position.
Rights and Obligations of Elected Officials and Employees of the Public Authorities
With regard to the employees of the public sector, Jewish law applies the fundamental principle by which authority "was entirely created merely to serve the common good, and it has nothing of its own." Consequently, the fundamental instruction given to those appointed to communal positions is: "In the past you were your own master; from now on you are enslaved to the community" (Sifre, at Deut 1:16); and therefore those receiving an appointment to serve in a public position are told: "Perhaps you think I am giving you a position of power? I give you slavery!" (tb Horayot 10a–b) and, according to Rashi's interpretation (ad loc.): "Authority is bondage for a man, imposing on him the yolk of the public." Consequently Justice Elon, speaking for the Supreme Court (in the above-cited Dekel judgment), drew attention to the Sages' severe criticism of "those who accept authority in order to derive benefit from it" (Pesikta Rabbati 22.2, Ish-Shalom edition, p. 111). According to this, the Sages' denunciation of the community leader and member of the public sector who "raises himself up above the community" is also understandable (Ḥag. 5b; cf. Maharal of Prague, Netivot Olam, pt. 2, Netiv ha-Onah, ch. 5 (Jerusalem, 5731), 12b). From all these, Justice Elon concluded there that: "Until a person becomes a public figure, he is his own master; from the time he becomes a public figure, he belongs to the community. He belongs to the community, but the community does not belong to him. The authority he undertakes is in order that the community may benefit from it, not for his own benefit. The appointed community leader must support the community, rather than himself, the community leader, being supported by the community and raising himself above the community."
On the basis of these sources, the Supreme Court concluded that political appointments made by virtue of connections rather than talent are invalid, as:
A public authority that appoints an employee in public service acts as a trustee of the public. And it is an important rule that this trusteeship must act with integrity, without extrinsic considerations, and for the benefit of the community, by whose power and on whose behalf the mandate to make the appointment is given to the appointing authority… When a public figure appoints an employee to the public service on the basis of extraneous considerations of political interests, such an appointment is invalid and is a form of breach of trust with regard to the community that has empowered the appointing authorities (ibid.).
In one of its judgments (Cr. a 884/80 State of Israel v. Grossman, 35 (1) pd 412) the Court discussed the State's appeal against the acquittal of a senior employee of the Bank of Israel charged with fraud and breach of trust after acquiring debentures, intended for banking institutions and further education funding, for members of his own family. Justice Tirkel, in a minority opinion, allowed the respondent's acquittal to stand, but spoke at length of the obligation of members of public authorities to avoid any act that might cast suspicion on themselves or their actions. In this context, he cited the rules concerning the watchmen of the Temple Guard, who were enjoined from any action – even the most legitimate – which might cast the slightest suspicion of their defrauding the community's trust, in order to fulfill the obligation "that you shall be clear before the Lord and before Israel" (Num. 32:22). From this verse, the sages inferred that "a man must perform his obligations to the community in the same way as he must perform his obligations to God" (tj Shek. 3.2; bt Yoma 28a).
In another case, the special obligation of the public figure to be incorruptible and honest is discussed (hc 400/87 Kahana v. Speaker of the Knesset, 41 (2) pd 729). Based upon the words of Rabbi Israel Isserlein (Terumat ha-Deshen, Pesakim u-Ketavim, 214; Rema, Sh. Ar., Ḥm, 37: 22), Justice Elon derived this obligation from the analogy made by the Sages between the public figure and the judge sitting in judgment.
a public figure as a witness
The special status of the public figure dictates the upholding of his dignity. This matter was discussed in a Supreme Court case concerning a litigant's request to call a judge as witness and to examine him on the stand in the course of a civil suit (lca 3202/03 State of Israel v. Hagai Yosef et al., 58 (3) pd 544–545). In rejecting the request, Justice Tirkel based his decision, inter alia, on Jewish law, which discusses the importance of maintaining the dignity of public figures. He quoted Maimonides' ruling that "The community must act with respect towards judges, and be in awe of them, nor should he degrade himself or act frivolously in their presence, for when a person is appointed as a leader over the community, he may not engage in [manual] labor in the presence of three people so as not to be degraded before them; all the more so may he not eat and drink in the presence of the public" (Ḥm 8:4; and see also Yad, Sanh. 25.1, 4).
the public authorities' duty of good faith
One of the fundamental rules in law is the duty to act in good faith. This duty applies not only to the individual but also, and in particular, to the public authorities, who are required to act in good faith in their dealings with those who turn to them. In one of the appeals to the Supreme Court (hc 376/81 Lugasi et al. v. Minister of Communications, 36 (2) pd 465), Justice Elon based this obligation on the principles of Jewish law: "The principle of acting in good faith, both towards the individual and towards the community, is based on the ancient precept of 'and you shall do that which is right and good' (Deut. 6:18). By virtue of this precept, the principle of good faith crystallized in the legal system of the State of Israel in the aforementioned provisions of the Contract Law (General Section). The term 'good faith,' both in its Jewish sources and in ordinary contemporary usage, is synonymous with integrity, and represents an overall guiding principle, a kind of 'royal decree,' in the entire world of procedure." Justice Elon further wrote that: "Assistance in understanding this concept may be found in the sharp and incisive words of Naḥmanides (one of the Spanish Sages at the end of the 12th century), defining the essence of behavior which is the opposite of that which is righteous and good: Namely, that anyone acting according to the technical and formal meaning of the laws of the Torah alone, that is, who takes care to adhere only to that which is explicitly stated and not to that which is not explicitly mentioned but is implied by the general spirit of the Torah is, in the words of the Ramban, a 'scoundrel with the permission of the Torah' (Naḥmanides, Torah Commentary, on Lev 19:2). Thus, a lack of good faith on the part of the public authorities in discharging an obligation is the behavior of 'a scoundrel in the service of the public.'"
the public authorities' obligation to keep their promises
The duty of good faith also obliges public authorities not to renege on promises they have made. Accordingly, the Supreme Court has ruled that even a "political agreement" binds its signatories, even if it is not treated in the same way as a private legal contract. Since no solution was found to this matter in the Contracts Law, the Supreme Court turned to sources of Jewish law and established this basic principle as derived from Jewish Law (hc 1635/90 Jerczewski v. the Prime Minister et al., 45 (1) pd 780–781). Thus, for example, Ri-bash wrote that the community is not entitled to renege on a promise that has been given, "public authorities do not make statements in jest [i.e., act as a joker and recant]" (Resp. Ri-bash, no. 476), and this was the basis of the Rema's ruling in the Shulḥan Arukh (Ḥm 81:1). Justice Elon refers to a golden rule in this matter that appears in the response of the Rash-bash (Rabbi Solomon ben Simeon Duran), who ruled: "If you examine the conduct of all the communities in such a matter, you will see that they never revoke or rescind [an agreement] …as it is unseemly for the community to say 'we were mistaken'" (Resp. Rashbash, no. 566; and cf. the response of the Ra'anah, Resp. Mayim Amukim, Teshuvot, no. 63). Justice Elon found an instructive explanation of the binding legal validity of a public agreement in the words of Rabbi Joseph Colon, one of the greatest respondents of 15th century Italy: "that the agreement of many is pleasant and its paths are the paths of peace, and therefore it was said that their words would be fulfilled when all were in agreement and together, and none of them would be able to recant and destroy the state of truth and peace" (Resp. Maharik no. 179 in Lemberg 1797 ed.; in Warsaw, 1870 ed., no. 181).
the duty to give reasons for a decision
Like other legal systems, Israeli law also states that, apart from exceptional cases, all public authorities must give reasons for their decisions. One of the appeals before the High Court of Justice discussed a case in which one of the institutions of the Bar Association failed to give the reasons for a certain decision. Justice Kister, who discussed this matter (hc 142/70 Shapira v. the District Committee of the Bar Association, 25 (1) pd 333), based the public authority's obligation to give reasons on the basis of Jewish law, and the duty of the law court to give reasons for its decisions. The source for this appears in the Talmud (Sanh. 31b), which says that if one of the litigants says "write and tell me for what reason I have been judged – you write and tell him." The obligation and conditions of reasoned explanation are also set out in the literature of the rabbinical authorities (Yad, Sanh. 6.6; Tur & Sh. Ar., Ḥm 14.4, in Rema).
A number of reasons are given for this in Jewish law: (a) to ensure the possibility of review by the Bet Din ha-Gadol (High Court) or by another body (Bet ha-Va'ad) that may be able to determine whether there has been an error in the decision or not; (see *Appeal); (b) the overall principle, guiding all persons, and especially those holding public office, "then you shall be clean before the Lord and before Israel" (Num. 32:22).
In view of these considerations, the rabbinical authorities ordered that, in those cases where both parties had agreed to be involved in litigation before any body, there was usually no reason to give an explanation, unless there was cause for suspicion that an error had been made. In addition, the rabbinical authorities distinguished between the duty to give a broader verbal explanation for the sake of the litigants, and the requirement to provide a written explanation.
With regard to written reasons, which for the most part are not necessarily intended to explain to the litigants the reasoning behind the judgment but rather to enable review, it is stated in the Nimmukei Yosef Baba Meẓi'a (ibid): "One does not write 'for this reason and for this evidence' [i.e., in the sense of an argument or proof from halakhic literature], but one writes 'so-and-so claimed this and so-and-so responded that, and as a result so-and-so was acquitted, and in the Court they knew the reasons.'" The same ruling was given by the Rema (R. Moses Isserles – in the Sh. Ar., Ḥm 14: 4. One of the commentaries on the Shulkhan Arukh, the Sema (ibid., 26), explains: "When they (i.e., the judges) hear the arguments, they know how to rule on them, because there is one law for all of us."
On the other hand, Rabbi Jair Ḥayyim Bacharach, author of Resp. Ḥavvot Yair (whose comments are partially cited in Pitḥei Teshuvah in Sh. Ar., Ḥm 14:10), questioned the Rema's ruling and ruled that a description of the argument or, as it might been described in modern legal terms – a description of the facts as presented in court, was not sufficient and that it was necessary to add the actual legal reasons for the decision. In Justice Kister's opinion, the considerations mentioned in the above sources hold true today. Today, as in the past, authorities discussing the rights of the citizen – and not necessarily in the courts – should act according to the rule "then you shall be guiltless before the Lord and before Israel" or, as it is commonly said, "that justice must not only be done, it must be seen to be done." In any event, today too it is difficult to provide appropriate review of any decision if the reasons for the decision are not known.
When translating the posekim's dispute regarding the scope of the reasoned explanation into modern terms Justice Kister stated that in order to enable review of a particular decision, it is sufficient for the deciding authorities to provide the applicant the set of facts upon which the decision is based; the authority reviewing the case will then be able to determine whether the authority that decided was in error or not. This is the minimum requirement with regard to reasoned explanation; it may be expected that the authorities will also state its legal reasoning, at least in brief.
The regulations of the rabbinical courts in Israel state that "every judgment, in addition to the decision regarding the case, must also include: (a) a brief summary of the arguments of the parties; (b) determination of the important facts; (c) reasons for the decision."
the claim of estoppel in administrative law
One of the governing principles of administrative law is that a person who was a partner to a particular act may not raise arguments against the legality of the act in which he himself participated. This doctrine is known as "estoppel," and has implications for different areas of law, including public law. In one of the cases heard before the High Court of Justice, the court was required to hear an appeal of a company that had participated in the tender issued by a public authority, and complained that its bid was not accepted (hc 632/81 Migda Ltd. v. Minister of Health et al. 35 (2) pd 688). Contrary to the positions of Justices Barak and Netanyahu, who sat in judgment, Justice Elon was of the minority opinion that the appeal should be rejected, on the basis of the theory of estoppel set down in Jewish law: "In cases such as this, the Talmud of the Sages says 'embellish yourself and then embellish others' (bm 107b), and in the words of the ancient maxim, when one says to another: 'take the toothpick out of your teeth, the other responds: first take the beam out of your eye' (bb 15b; and see Rashi, bb ibid.).
onus on the public authorities even in the absence of a kinyan
One of the characteristics setting the public sector apart from others is its obligation to keep promises it has made even in the absence of an act of acquisition (kinyan) (unlike private law, in which Jewish law demands an act of acquisition to create a legal obligation – see entry *Acquisition).
In a ruling dealing with the authority's obligation to honor its undertaking to provide telephones to the country's residents (hc 376/81 Lugasi et al. v. Minister of Communications et al. 36 (2) pd 449), Justice Elon based this obligation on the sources of Jewish law: "Beginning from the thirteenth century the principle was established that any legal transaction made by the community is binding, even if no such act of acquisition (kinyan): 'for whatever is done by the public does not require a kinyan, even if it is something which for a kinyan is necessary in the case of an individual'" (Resp. Maharam of Rothenburg, cited in Mordechai, bm 457–458). This new principle was applied to various types of legal transactions, such as employee-employer relations, the laws of guarantee and gifts, and other legal matters in which the public is a party (see, for example, Resp. Maharam b. Baruch, Prague, no. 38; Resp. Ribash, no. 176; Rema, Sh. Ar., Ḥm 163:6, in Rema; 204:9; Resp. Mayim Amukkim, section with Responsa of Resp. Ra'anah – R. Eliyahu b. Ḥayyim, no. 63). The rule that was laid down and accepted was: "It is a simple custom, that whatever the community leaders agree to do is completely valid even without a kinyan" (Resp. Ha-Rosh, 6:19, 21). In addition, a number of other fundamental requirements of the laws of acquisition in Jewish law, were drastically relaxed for public authorities. Thus it was settled that a public authority can purchase or transfer a thing that has not yet come into existence and, contrary to the rule in Jewish Law that an agreement affected by an asmakhta (i.e., absence of a deliberate and unqualified intent to be bound) is not valid, (see *Asmakhta) it was established that there is no defect in asmakhta where the public is involved (Resp. Mayim Amukkim, ibid.; R. Moses Di Trani, Resp. Mabit, vol.3. no. 228; and see *Contract, the Laws of Contract).
Based on this fundamental assumption, Justice Elon further states (hc 376/81 Lugasi, ibid, p. 470) that "a greater degree of seriousness, integrity, and propriety is demanded of the public authorities in fulfilling its undertakings than is demanded of an individual in the field of private law. For this reason, when a representative of a public authority agrees that an individual citizen is exempt from a certain payment, this admission is binding and has full legal force. If, however, an individual makes a similar admission, it is not binding unless he has made it before two witnesses to whom he says 'youare my witnesses,' because we presume that admissions given only in the presence of the two litigants themselves lacks the necessary resolve to constitute valid, admissions, as the party making the admission may claim 'I made the admission in jest' (Sanh. 29a). This is not, however, the case with regard to an admission made by a public authority. Why is this so? Because 'although an individual making an admission may claim this, it may not be said… of the community making an admission, because the community does not make statements in jest" (Isaac b. Sheshet Perfet, Resp. Ribash, no. 476 (14th century, a leading halakhic authority in Spain and Algiers; and see also Rema to Sh. Ar., Ḥm 81:1). To support this, Justice Elon cited two incidents recorded in the responsa literature. In the first, a question was brought before Rabbi Solomon b. Simeon Duran (Rashbash; the spiritual leader of the Jewish community of Algiers, 15th century), with regard to "a community whose custom was to a particular kind of concession for one year, as was the practiced in all the communities; and the custom of that community was to sell it for one year, but on that occasion the treasurers of the community sold if for four years, and they wished to revoke the sale. May they recant or not?" (Resp. Rashbash no. 566). From the responsum, it appears that the leaders of the community wanted to revoke the sale because, in their opinion, the concession had been sold at a price lower than should have been obtained for such a period of time. Selling for either more or less than the accepted price is called in the Talmud "over-reaching" and when the deviation from the accepted price is more than one-sixth below the fair price, the seller, who is the injured party is entitled to rescind the transaction (bm 49b; and see *Ona'ah). It was further claimed that the concession was sold without an act of acquisition, and therefore is invalid, because it relates to something that has not yet come into existence. The Rashbash rejected the arguments of the community, and denied them the right to rescind their agreement:
A sale by the public, even without an act of acquisition, and even regarding something that is not yet in existence, and even to someone not yet in existence, is valid…. And even if it was their custom to sell it [the concession] for one year and they sold it for four [years], they cannot rescind the sale… And there is no ground for rescinding the sale for this reason, unless the treasurers sold it privately, not in the presence of the community, for then the community may rescind the sale, as they sold it contrary to their custom. But if the sale was made in the presence of the members of the community, or the majority of them, then it may not be rescinded and it is valid; and there is no element of over-reaching. If you examine the conduct of all the communities in this matter you will see that they never revoke or rescind [an agreement], neither because it concerns an object not yet in existence, nor because of over-reaching… because it is unseemly for the community to say: we were mistaken.
From these words of Rashbash, the High Court of Justice concluded, per Justice Elon, that the transaction would have been invalid had the treasurers not been authorized to engage in a transaction of this kind at their own discretion and without the explicit authority of the community. However, if the representatives of the public body did not deviate from their authority and are authorized, by the accepted practice of that body, to engage in transactions on behalf of the public body at their own discretion, then the transaction is valid and the public body may not rescind it, even though a transaction of this kind, carried out by an individual, in the field of private law, may be rescinded for reasons of mistaken price under the laws of over-reaching. Why? Because a greater degree of integrity and propriety is demanded of a public authority and its representatives; they do not recant the undertakings they have made and for which they request the validity of a legal transaction, because it is unseemly for them to say that they were mistaken in their undertaking.
Justice Elon also finds support for this fundamental principle concerning the public authorities in another responsum by Rabbi Elijah b. Ḥayyim, the Ranaḥ (Resp. Mayyim Amukkim, ibid.). In this case, the community leaders agreed with one of the town's residents as to the amount of the tax to be paid on his father's estate. After a while, the community requested to rescind the agreement made by its representatives, claiming that there had been a mistake in the evaluation of the estate made by the community representatives. The respondent objected to a reappraisal and argued that the agreement he had reached with the community leaders was binding with regard to the entire community. Ranaḥ first examined the duty imposed upon the court to be most meticulous in ensuring that public funds are not misused. Nevertheless, he rejected the arguments of the public authorities, by virtue of the fundamental principle that "every act undertaken by the leaders of the community to whom the affairs of the community are entrusted is valid, and the community may not retract, even if it is evident that the community leaders erred in the matter." On the basis of this response, Justice Elon established a basic principle in public law: "The undertaking made by a public authority or its representatives within the framework of their powers, with the intention that it have legal force, is binding on the public authority, and it cannot retract it, even if such an undertaking, were it to be made by an individual in the area of private law, could have been rescinded and revoked. A public authority which has assumed an undertaking must fulfill it with a greater degree of integrity and propriety, over and above what the law requires of an individual as to such an undertaking in private law." This guiding principle, based upon Jewish law, has served as the foundation for many other rulings in later years and determined the obligation of the administrative authorities to fulfill promises it has made, even if these are not accompanied by a formal undertaking as is customary in private law.
the obligation of public authorities to act over and above the letter of the law
Alongside the obligation of the public authorities to uphold their undertakings even if given in the absence of any formal act of acquisition, there are other cases in which the public authority is relieved of fulfilling duties that exist in private law. In the Lugasi ruling mentioned above (hc 376/81 Lugasi et al. v. Minister of Communications et al. 36 (2) pd 449), Justice Elon further states that, notwithstanding the fact that in the world of Jewish law there is a duty, in special circumstances, to act over and above the letter of the law, even when the litigant is exempt from this by the law (see, for example, bm 83a; bk 55b–56a), this duty does not always exist in the case of a public authority. The reason is that the individual is required, in certain circumstances, to uphold the general rule "Favor him with your own property and give it to him" (Ḥul. 154a); but this is not the case for a public authority which, when exempted by the law, may not make payment to an individual from public funds on the basis of an extra-legal obligation. In this case, the public authority would be favoring an individual at the expense of the general public – since the public authority acts as a trustee for the funds and rights of the general public – and it is not entitled to do so. The rule is "Favor him with your own property and give it to him but not from public funds" (see also the discussion in the Rabbinical Court on this subject, in File 517/5714 (Jer) p. 171.)
capacity and dismissal of public employees
The subject of the capacity of public employees to serve in a public position, and their dismissal, has come up before the Supreme Court on a number of occasions, and more than once the court has had recourse to the sources of Jewish law to support its rulings. Thus, for example, a particular case (hc 290/65 Altgar v. Head of the Municipality, 20 (1) pd 29) concerned a municipality employee dismissed from his position due to inappropriate behavior. Among other arguments, the employee claimed that he had been dismissed without being given an appropriate "right to plead" and to respond to the charges against him. In his discussion of this matter, Justice Kister set out the reasons for dismissal of a public employee in Jewish law. The talmudic rule is that "one never removes [a person] from leadership within Israel," but this rule does not apply to an employee who has "sinned" – i.e., who was involved in a serious transgression or behaved in a way that is not fitting to his position – nor does it apply to one who was initially appointed for a fixed period of time.
On the basis of Maimonides' rulings (Klei Mikdash 4:21), Justice Kister wrote that a public employee may not be dismissed merely because of a bad rumor that has been spread about him (Resp. Rambam no. 111), and that the public authorities should act with propriety and in good faith in the dismissal process (with regard to the public authorities obligation to act in good faith, see above). Since members of the public sector are like judges, they must be scrupulous in upholding legal procedure and in providing an appropriate opportunity for the employee to make his arguments heard before deciding in his case (see below).
In another case, the Supreme Court ruled, per Justice Kister, that in the interests of the public's benefit there was a duty to dismiss a public employee who was negligent in his job and did not carry it out properly despite being cautioned, and to employ in his stead someone who was fair and honest. This rule is based upon the words of the Ḥazon Ish, Rabbi Abraham Isaiah Karelitz (second half of the 20th century) (hc 218/65 Gabbai v. Jerusalem Municipality, 20 (1) pd 48).
In discussing these issues, the Supreme Court included the obligation to consider, inter alia, the damage that may ensue to the family of an employee threatened with dismissal, who is dependent upon him for its livelihood. This consideration has an important place in the sources of Jewish law, and expresses the balance between the interests of the community and the interests of the individual (See hc 192/68 Bashkin v. Mayor of Tel Aviv, 22 (2) pd 748; Rabbi Avraham Halevi Horovitz, Zur Ya'akov, end of §195).
Another case (ala 1/68 Anon. v. Attorney General, 22 (1) pd 676), discusses the terms set in Jewish law for restoring a public employee to his position after serving a sentence. In this matter, the authority must be convinced that the employee has completely repented of his ill deeds (Ḥm 34.33, in the words of Rema). In extreme cases, such as the case of a man who has committed murder, he is never returned to his position (Yad, Sanh. 17:8).
Justice Kister emphasized that, notwithstanding that Jewish law regards the rehabilitation of those who repent as an overarching principle (see *Punishment) and believes in the possibility of complete rehabilitation, it is cautious with regard to one who has transgressed and repented serving in a public position of trust. Rambam already ruled that people in various public positions who have failed in carrying out their position, even in error, "are dismissed without notice, for there is permanent notice upon them, as they act as public agents" (Yad, Sekhirut 10.7, according to bm 109a; and see also Sh. Ar., Ḥm 306). With regard to restoration to their former position, Justice Kister says that, according to Jewish law, when the case in question involves dismissal due to a crime, a particularly stringent examination is carried out, to assure that they may be regarded as trustworthy in the future, as to whether repentance is indeed complete, or whether the court is being deceived or not (Sh. Ar., Ḥm 34.33, end of the Rema's comments; and cf. Bet Yosef ad loc. See also the article by Justice Kister, "Gishat ha-Yehadut la-Avaryan u-le-Shikkumo ("The Jewish Approach to the Criminal and his Rehabilitation" (Hebrew), Ha-Praklit, 25, 485–86).
This issue was discussed at length in another Supreme Court ruling dealing with the capacity of a criminal who has served his sentence to return and serve in public office (hc 1935/93 Mahfoud v. Minister of Religious Affairs et al., 48 (1)pd768–769). Based on Jewish law, Justice Elon writes about the duty to balance between the desire to prevent a stain on the reputation of the public service and a loss of public trust in it, and the basic principle of rehabilitation in Jewish law, which has even been anchored in legislation by the Knesset in the Crime Register and Rehabilitation of Offenders Law, 5741 – 1981 (on this issue, see also: ala 18/84 Carmi v. State Prosecutor, 44 (1) pd 373–381).
rules of natural justice and the right to plead
One of the basic rules in the theory of administrative law requires the public authorities to uphold "the rules of natural justice" – among which, the right to hear a person's arguments before making a decision liable to affect his rights. Justice Silberg, who discussed this issue (hc 3/58 Berman v. Minister of Interior, 12 pd 1493), noted that English law of the 18th century (The King against the Chancellor, Master and Scholars of the University of Cambridge (1723), 93 er 698, 704) already regarded the Torah as the source of this obligation, in the words God spoke to Adam before his expulsion from the Garden of Eden (Genesis 3: 9–11). Justice Silberg expanded and extended this obligation to "hear the other party" when talking about a judicial or quasi-judicial authorities, based upon many sources in Jewish law, including the words of Rabbi Moses Isserles (leading rabbinic authority in Poland, 16th century), who discussed it at length in his responsa (Resp. Rema, no. 108). The Rema saw this principle as already well-established in the Torah precept of "hearing your brothers." In addition to the aforementioned proof from Adam, the Rema adds that it is also possible to learn this principle from other cases: e.g.,God calling upon Cain to hear his arguments before imposing the punishment. Similarly, in the case of Sodom the Sages derived from God's words "I will go down and see" (Gen. 18:21), that the judge may not make his ruling until he has heard and understood the arguments of the accused (hc 10/59 Vicky Levy v. The Rabbinical Court, 13 pd 1187; and see the High Court judgment in Altgar cited above. Judge Leron of the Beersheba District Court also based his decision upon the source in App.31/81 Ben-Simon v. State of Israel, psm 5742 (1) 438).
The basic principle of the "duty to hear" was among the reasons invoked by Justice Elon in stating the husband's right to be a party to his wife's application to terminate a pregnancy, as one liable to be affected by a decision on this matter (ca 413/80 Plonit v. Ploni, 35 (3) pd 88). (See *Abortion). Justice Elon based this decision, among other things, on a statement by the Sages to the effect that "there are three partners in the creation of man: God, his father and his mother" (Kid. 30b), which requires that the husband's position be heard prior to taking a decision with regard to aborting the fetus.
prohibition against conflict of interest
One of the basic rules in the theory of public authority and administrative law, arising from the "rules of natural justice," is the prohibition against a public employee being in a position of "conflict of interest" when coming to decide on a certain matter. This conflict of interests may arise from a personal interest that he has in a particular matter under discussion, or from an institutional interest on the part of the entity he is representing. In a number of Supreme Court rulings (hc 291/72 Rubinstein v. Elections Committee for the Chief Rabbinate Council, 26 (2) pd 279; hc 91/74 Gabara et al. v. The District Court, 28 (2) pd 526; hc 21/66 Katabi v. Chairman of Kiryat Ekron Local Council, 20 (2) pd 108), the Supreme Court (per Justices Haim Cohn and Kister) referred to the sources of Jewish law in order to highlight this prohibition, and in particular to a ruling concerning judges, by which a judge cannot sit in judgment on any issue in which he has any kind of benefit (Sh. Ar., Ḥm 8.12). The Talmudic sages went to the extent of disqualifying a judge whose interest in the case was no more than that of any other inhabitants of a town whose Torah scroll had been stolen:
If a scroll of the Law belonging to the inhabitants of a town has been stolen, the judges of that town must not try him [the alleged culprit]. If a man says: Distribute a maneh to the inhabitants of my town [and it is stolen], the judges of that town must not try him [the alleged culprit] (bb 43a). And Rosh ruled that if a person avoided paying tax, the town's judges, to whom the tax was paid, were not entitled to judge him: "it is obvious that he should not be judged by them, because how can they judge themselves as they have a part in the claim" (Resp. Ha-Rosh, 58.7). The analogy between elected public figures and judges implies that the obligation to avoid conflict of interest applies both to employees in public services and to elected public figures.
In another case (ssa 2/73, Ploni v. State of Israel, 28 (1) pd 370), Justice Kister stated, again on the basis of sources in Jewish law, that every public employee must avoid making use of his subordinates for his own personal purposes. According to Rabbi Jonah Gerondi (a contemporary of Naḥmanides) in his book Sha'arei Teshuvah, (Sect. 3. 60), one who is in charge of others is entitled, and even required, to demand of these employees that they carry out their work in the service, and no more than that.
prohibition against "leaks"
In one case (hc 264/70 Mizrachi v. the Committee for Appointing Dayyanim, 24 (2) pd 229), the High Court of Justice, per Justice Kister, established the obligation on the part of the public authorities to maintain confidentiality with regard to information, which if disclosed might harm another. Justice Kister based this obligation on the verse "He that goes about as a talebearer reveals secrets" (Prov. 11:13), and on the words of Rabbi Israel Meir Ha-Cohen of Radin, in his famous book Hafeẓ Hayyim (Hilkhot Lashon ha-Ra, 2.11).
non-justiciability
Alongside judicial review of the actions of the implementing authorities by the court, there are certain areas that "are not justiciable" and which the court avoids dealing with, such as military considerations, foreign policy and so forth. In one case, the High Court of Justice discussed the question of the judicial review of orders issued by the security authorities (hc 302/72 Abu Hilu v. Government of Israel, 27 (2) pd 184–185). In rejecting the petition, the Supreme Court, in a decision by Justice Kister, ruled that the Court would not pass issues of this kind under its judicial review. Among other things, he based this position on the distinction that exists in Jewish law in this respect: alongside the provision that the king may embark on a voluntary war only with the consent of the Sanhedrin, in the case of a just war, such as "saving Israel from a foreign power," he does not require the permission of the Sanhedrin, and his decision is not subject to judicial review (Yad, Melakhim 5:1–2; S. Arieli, Mishpat ha-Milḥamah, pp. 96, 179; E.Y. Waldenberg, Hilkhot Medinah, vol. 2, chs. 4–5).
deviating from authority
One of the most important grounds for judicial review is ultra vires. The basic rule in public law, known as the "principle of legality," states that, unlike a private individual, a public authority may not carry out any action whatsoever unless it has obtained explicit authority to perform this action by law or by virtue of the law. In an appeal hearing in the Supreme Court, the issue of the ability of a local authority to impose imposts on a resident without explicit authorization to do so by law was discussed (Cr. A 656/76 Ha-Giva ha-Aduma Co. v. Rishon le-Zion Municipality, 30 (3) pd 823). Justice Haim Cohn stated that not only was this impost improper, as a deviation from authority, but that it even involved an element of robbery. He supported this position with Maimonides' words with regard to the King's Law: "'that the king may cut down trees and destroy houses, and even more so collect taxes so as to build roads or bridges. In what case? That of a king whose coin is valid… But if his coin is not valid, then he is like a robber with a strong arm or a gang of armed bandits whose laws are not law, and this king and all who work for him are robbers in every respect' (Yad, Gezeilah ve-Aveidah 5.18). The king's 'coin is valid' when he carries out actions and decrees with the authorization of the people of that land; consequently, one can say that the municipality's 'coin' is valid when it imposes taxes and collects money, either with the authorization of the legislator or with the consent of the taxpayer. Without explicit and unequivocal authorization and without the agreement of the taxpayer, a requirement to pay for the sake of providing a deposit is a form of 'royal robbery' which does not justify taking money from its owner."
delegation of authority
Administrative law has developed various rules relating to the right of a public figure to delegate authorities to another person. The basic principle is that, so long as the authority in question is mainly technical (such as the erection of signposts) there is nothing to prevent one person from delegating authority to another. By contrast, an authority involving an element of discretion may not be delegated, as it has been granted to a particular person and not to another. The Supreme Court had recourse a number of times to the sources of Jewish law in this matter. In one case (hc 380/74 Salman v. National Labor Court in Jerusalem, 30 (1) pd 501) the issue of the dismissal of an employee was discussed. Justice Berenson held that where a local authority has a number of panels authorized to make decisions, not every matter needs to come before the highest instance. He anchored this decision in a verse from the Torah, regarding the advice given to Moses by Jethro (Exod. 18:22): "and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge themselves."
In another ruling (hc 702/79 Goldberg v. Sherman, 34 (4) pd 85), discussing the ability of the head of a local authority to delegate authority to his deputies, Justice Elon developed the doctrine of "delegation of authority" in administrative law, utilizing the response of Rabbi Isaac ben Sheshet Perfet (Ribash, halakhic authority, Spain–North Africa, end of 14th century–beginning of 15th century) to a question asked by the leaders of the Barcelona community (Resp. Ribash 228). The question concerned a public regulation (see *Takkanot ha-Kahal) enacted in a particular community in the Catalonia district, in which three of the community's leaders, called "trustees," were authorized, along with the community's court, to select a group of 30 people to supervise various community matters, in particular matters relating to the division of the tax burden and the manner of its collection. The trustees, who did not succeed in reaching an agreed position, attempted to delegate their authorities to two other people, but certain members of the community objected to this. Ribash accepted the arguments of those who objected to the delegation, stating that the authority conveyed upon a person elected by the community, whose performance involved a degree of "reasoning and consideration," must be carried out by that individual, unless there is an explicit provision enabling the position holder to delegate his position to another (see also hc 2303/90 Philipovitz v. Ministry of Justice, 46 (1) pd 425–426).
administrative discretion
One of the most important issues in administrative law concerns the obligation of a public authority to exercise its discretion before taking a decision on any matter. The components of this discretion and the scope of judicial review over the manner in which it is exercised are frequently discussed in court rulings. In one case, the basic principle of independent exercise of discretion was established, based upon sources of Jewish law. The court held that the obligation of trust imposed upon an official elected to a given institution, required it to act in accordance with relevant considerations and in accordance with his convictions, even if this contradicted the partisan interests of the body that elected him and sent him to that elected institution (hc 24/66, Malkah v. Seri Levy, 20 (2) pd 657); cf. Elon, Authority and Power in the Jewish Community (Hebrew) p. 29).
incorruptibility and sincerity
One of the laws concerning public administration states that the court will not review an action involving an appellant wishing to appeal the decision of a public authority if he appears before the court with "unclean hands" – that is, if he is himself a criminal or is concealing facts from the court. Justice Tirkel based this ruling on a passage from Psalms (24:3–4): "Who shall ascend into the mountain of the Lord, and who shall stand in his holy place? He that hath clean hands and a pure heart; who hath not taken my name in vain and hath not sworn deceitfully" (lca 5072/00 Izzy Yogev Industries Ltd. v. Abu Bros. Locksmiths, 55 (2) pd 309).
Takkanot Kahal (community enactments) and the Responsa Index
A major contribution to the rules and laws concerning public authorities in Jewish law was made by a number of digests appearing in recent years. Among these, we should particularly note the Legal Digest of Responsa Literature from Spain and North Africa (edited by M. Elon), and its counterpart from Ashkenaz, France, and Italy (edited by B. Lifschitz and A. Shochetman), containing many entries (such as community, community regulation) dealing with various aspects of public administration law. An important source concerning the legal status of the public authorities and its employees are the community records (see *Takkanot ha-Kahal) which have been published in recent years, containing rich material on the history of public authority, its rules and procedures, rights and obligations.
[Aviad Hacohen (2nd ed.)]
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