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Beit Midrash Series P'ninat Mishpat

part I

Chapter 101

How to Elect Public Officials

Various Rabbis13 Cheshvan 5770
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Our mentor, Harav Shaul Yisraeli deals with the topic of electing public officials in an article that is published in his hallmark sefer¸ Amud Hay'mini. He struggles with the following ruling of the Rambam (Melachim 1:3): "A king is initially appointed only based on the decision of the Rabbinical Court of 71 and based on a prophet, like Yehoshua, who was appointed by Moshe and his court, and like Shaul and David, who were appointed by Shmuel of Ramah and his court."
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This implies that there was no need for the approval of the nation to these appointments. However, Rav Yisraeli says that this is not the only way to appoint a leader. Rather, the aforementioned is so when the nation does not choose a leader, for if they do, there is no need for the court of 71 or a prophet. That special system is required only when one is trying to appoint someone to power over the nation through outside authority.
Rav Yisraeli's main proof for the existence of such a distinction is from Tosafot in Sanhedrin (20b). According to most of the possibilities raised there, the wicked king, Achav, had the halachic status of a king, despite the fact that he was not appointed by a prophet and that it is hard to imagine that a court of 71 would support the candidacy of such a wicked man.
Along similar lines of this distinction, the Meiri (beginning of Sanhedrin) says that that which Sanhedrin was necessary to authorize war was if the leadership wanted to force the people into war. In contrast, if the nation was interested, there was no such need. The Radvaz (Melachim 3:8) also says that there are two types of kings who are allowed to execute those who rebel against them: those chosen by a prophet and those accepted by the people.
Rav Yisraeli discussed the nasi and the king. Regarding other public officials, the gemara (Berachot 55a) discusses the matter more explicitly: "A person of authority over a community is appointed only after the community has been consulted." That still leaves open how one is to determine whether the community has sufficiently accepted the candidate.
The Rama (CM 163:1) cites the Maharam who deals with the case of a public official about whom there was no consensus among the community. He says that we take all of the dues-paying members of the community, exhort them to decide based on idealistic factors, and follow the majority. If the minority is unwilling to accept the decision of the majority, then the latter can enforce the matter even with the help of non-Jewish authorities. They can even be forced to pay for the official whom they were not interested in hiring. If someone refuses to express his opinion, his "vote" is disregarded and the majority of those remaining who actually took part in the vote decide the matter.
[Next week we will focus on some of the details.]
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