On Governance

I occasionally contribute to a weekly electronic Hoshen Mishpat journal published by friends of mine. Here is a recent article of mine; I have edited the formatting, but the syntax, style and orthography still reflect the original venue of publication.

Introduction

Two of the fiercest and highest profile domestic policy controversies of the past couple of years have been the partisan battles over the health care overhaul and the extension of the Bush era tax cuts. There are, of course, many different perspectives on these great struggles – ideological and empirical, partisan and personal, procedural and substantive – but fundamentally, the nation, through its elected representatives, was grappling with the elemental questions at the core of governance: how shall the people be taxed, both relatively and absolutely, and how shall the body politic regulate itself for the general good?

While there is frustratingly little Talmudic discussion of these sorts of questions, a voluminous body of Halachic literature has developed around them, during the centuries of Jewish history in which communities were often granted a high degree of autonomy by the sovereign government. This literature is often quite involved and highly technical; in this essay, we shall broadly discuss some of the basic questions that arise in this context.

Majority or Unanimity?

In any system of government in which power is vested in more than one individual, a fundamental problem arises in cases of dispute between the holders of power: do we follow some sort of majority (or supermajority), or do we require unanimity? In Halachah, the question of following a non-unanimous majority (Rov) on matters which involves “benefit for him and loss for him” (“ravcha le’hai u’peseida le’hai”) is a major dispute between the German Rishonim,1 which has never really been settled. While Rema sides with the view that accepts a simple majority, at least where that is the municipal2 custom,3 Noda Be’Yehudah stipulates that a government that wishes to arrogate this power to itself bears the burden of proof that this is indeed the local custom, and by default we will require unanimity.4

Disinterest

Rema, citing Maharam of Rottenberg, rules that the voters on any issue must “state [their] opinion[s] for the sake of Heaven”.5 What, exactly, does this mean? Chasam Sofer, ruling on a notorious incident in which the voters in an election for the position of rabbi were alleged to have been bribed by a particular candidate or his supporters, declares that if the bribery can be substantiated, the election results are void, based on the above principle,6 but it is not clear just how far this extends. If the city is voting on whether to build something, may a local construction worker vote in favor due to his business interests, or must he (attempt to) disregard his personal situation, and consider only the good of the city?

One Man, One Vote?

A fundamental principle of modern, Western democracy is that the franchise extends to all citizens equally, regardless of their relative wealth, but the Halachic perspective is rather more ambiguous. Maharam, in the aforementioned responsum, declares that communal controversies are to be resolved by meetings of “all householders who pay tax”, clearly implying that non-taxpayers have no vote. His student, Rosh, in an important but frustratingly brief and very problematic responsum, rules that a decision related to financial matters is governed by “the majority of wealth”, and he flatly, and perhaps jarringly to our modern ears, declares that “it cannot be that the majority of people who pay the minority of the tax” shall impose their will on the wealthy.7

Rema apparently goes even further and rules, based on Rosh, that the wealthy minority can actually impose *its* will on the majority, but Sema challenges him, pointing out that Rosh does not actually say this, and he suggests that Rosh may really mean that we treat such a situation as evenly balanced, but concludes his remarks with “tzarich iyyun”.8 Maharit, too, is certain that Rosh cannot mean (“chalila”) that we follow a minority of individuals who possess the majority of the municipal wealth, and he explains that Rosh merely means that those who do not pay taxes have no vote.9 Mishneh Le’Melech, however, while also firmly convinced that we cannot possibly subordinate the entire community to a minority of wealthy individuals, nevertheless rejects Maharit’s reading of Rosh on textual grounds, although he concedes that he has no viable alternative interpretation.10

One Woman, One Vote?

We close with one other Halachic ruling which diverges sharply from modern, Western sensibilities. About a century ago, as the woman’s suffrage movement was gaining ground, and the Jews were returning to our Holy Land, there was a great dispute among the Rabbanim over the Torah’s attitude toward women voting. Rav Elazar Meir Preil (father-in-law of Rav Pinchos Teitz and his predecessor as Rabbi of Elizabeth, from whom the latter inherited the position) offered a justification of the stringent ruling of “the Rabbis of Erez Yisrael” (as opposed to “some of the Rabbis of the United States”, who were not quite so sure): We have previously noted Chasam Sofer’s declaration that electors who accept bribes are thereby invalidated, as they will not have voted “for the sake of Heaven”, but Chasam Sofer adds another argument, from Rema’s ruling that those who are “appointed to involve themselves in the affairs of the populace or individuals are like judges, and it is prohibited to seat among them one who is disqualified to judge due to villainy”.11 Similarly, argues R. Preil, must women be denied the franchise, since normative Halachah is that they cannot be judges!12 Moreover, adds R. Preil, although it is usually permissible for the judged to deliberately accept as a judge someone who is unqualified, this is still not sufficient to legitimize female suffrage, for even a positive vote by the community cannot establish permanent suffrage, for that would violate the prohibition against appointing a woman to a position of authority (“melech ve’lo malkah”). Additionally, R. Preil suggests that the decision to grant women the franchise would need to be unanimous (!), and a simple majority would not suffice.13

I have also recorded an audio version, covering all of the above and including an additional section on quorums, i.e., does a majority suffice where the minority is absent (see Wisconsin), or where there has been no dialog between majority and minority.

  1. See Mordechai Bava Basra #480-482 at length for the various views. []
  2. The literature on our topic generally deals with governments at the most local (communal or municipal) level, and not state, provincial or national ones. []
  3. Shulchan Aruch Choshen Mishpat Siman 2, and see also his remarks at the beginning of Siman 163. []
  4. Resp. Noda Be’Yehudah Kama Choshen Mishpat #20 (cited in Pischei Teshuvah Choshen Mishpat at the end of Siman 2). []
  5. Shulchan Aruch Choshen Mishpat beginning of Siman 163, Teshuvos Maimoniyos Kinyan #27. []
  6. Resp. Chasam Sofer Choshen Mishpat #160, cited in Pischei Teshuvah Choshen Mishpat 8:2. []
  7. Resp. Rosh 7:3. []
  8. Shulchan Aruch 163:3, Sema #13. []
  9. Resp. Maharit I:69 – link. []
  10. Gezeilah Ve’Aveidah 12:11, cited by Rav Akiva Eger in a gloss to Shulchan Aruch Choshen Mishpat 163:3. []
  11. Choshen Mishpat end of Siman 37. []
  12. This is the opinion of most Poskim, including the Shulchan Aruch (Choshen Misphat 7:4), although there is a dissenting view among the Rishonim. []
  13. Ha’Maor #55 – link. Note that R. Preil’s controversial responsum is lengthy and intricate, and we have merely touched on some of his basic conclusions here. []
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