Politics and Justice of Public Spending

Rabbi Shabtai A. Rappoport

H.'s wife, B., is a brilliant lady forty three years old. B. is a computer programmer, whose software for banks and big stock brokers set the standards of quality and ingenuity in the field. Recently she started experiencing short spells of memory loss. After jokingly attributing these to the coming of old age, she consulted the family physician, who referred her to a specialist. The specialist called H. a few days later, telling him that B. was diagnosed as being at an early stage of Alzheimer's disease. The process of atrophy of the frontal and occipital lobes of her brain, has begun. The prognosis is a progressive loss of memory, intellectual capacities, speech and orientation. As of now there is no known remedy for this terrible disease.

After digesting the information, H. decided not to take the specialist's word as to the impossibility of a cure, and started his own reading. He found out that, as he was suspecting, Alzheimer's disease was quite widespread. Also, there was a marked advance in understanding the disorder, and some progress was made towards developing a treatment for it. The chief obstacle was lack of sufficient funding for research. Further reading disclosed that public spending for developing an effective treatment for AIDS, has been much greater than such spending for Alzheimer's disease. When dividing the spending for AIDS research, by the number of patients that had died from it last year, and performing the same calculation for Alzheimer's, it is found that the sum spent for AIDS research is fifty times as high as that spent for Alzheimer's disease.

This bias towards AIDS research, cannot be explained away by the urgent necessity to stop the spread of that epidemic, because most of the money was not directed towards prevention, but rather towards treatment. The real reason for this preference, was the political power that AIDS activism mustered. AIDS activists are well organized, have connections within the media, and thus coerced the political system in directing a large share of public funding of medical research towards AIDS.

H. wondered whether he might challenge this political decision in court. After all, public spending is a political matter, and is given to the discretion of the government. On the other hand this inclination towards AIDS research at the expense of Alzheimer patients seems unjust. In administrative matters like public spending, is the political system bound also by the rules of justice, or only by the legal rules that it itself created.

The regulations that govern political decision making, are stated in the code of Jewish law, (Shulchan Aruch Choshen HaMishpat 163, 1). These regulations are based on the rulings of the brilliant thirteenth century Rabbi Meir of Rothenburg, and pertain to Jewish communities in the middle ages. However, the principles on which they are based, define Halacha attitude towards political administration of public affairs at any time.

Political decisions are reached, according to these edicts, by a popular assembly. Each participant must pledge to vote conforming to his honest opinion of public benefit, rather than to his particular benefit. A member who abstains from voting, because he cannot reach a firm conclusion as to the matter that came up for decision, is disregarded. Majority vote, either to ratify some change in public policy, or in favoring status quo, is obtained only by actual yes or no.

Rabbi Eliyahu of Vilnius, the eminent eighteenth century authority, widely known as the Wilna Gaon, cites the source to this edict in the code of Jewish supreme court, known as Sanhedrin. This court passes judgments according to majority opinion. Each judge must individually state and justify his conclusion. A judge who abstains from stating a clear verdict, is disregarded in the final vote that determines majority decision (Sanhedrin 17,a). That comparison between a court that has to reach a legal ruling, and popular assembly that has to come to a political decision, is quite remarkable.

There are two widely accepted systems of deciding a matter by taking a vote. One system requires that a majority of the members will vote for the resolution. An assembly that has, say, one hundred members can decide an issue by no less than fifty-one yea votes, no matter how many members actually voted on the matter in hand. According to the second system a decision is taken by a majority of the actual votes. Such an assembly, out of which only twelve members cast their votes, seven were yeas and five were nays, will decide in favor of the proposal, even though seven votes are not even close to being a majority of a hundred. According to Rabbi Meir's ruling the second system is the one that Jewish law uses. This arrangement has obvious merits, but it seems irrelevant to the edict of the supreme court that the Wilna Gaon used as a source.

The reason that a judge who did not reach a conclusion is disregarded is obvious. The court has a required number of members, because it has to come up with that many legal opinions in order to reach a just decision. According to the code of Sanhedrin a judge who does not have an independent opinion, but joins in with another member, is also disregarded. It would seem that a popular assembly, however, does not have to come up with considered judgments. Each member simply has a right to vote according to his will. Not the justice and legality of the matter at hand has to be decided, but public inclination and desire.

Hence, Rabbi Eliyahu's comment, that attributes the edicts regarding popular assembly, to the code of the supreme court, represents a novel concept. The assembly, like the court, should not represent interests and desires, but the joined opinions of the community, or its representatives, as to the right decision to take under the circumstances. This concept is also implied in the first edict quoted above, that each member should pledge to vote conforming to his honest opinion of public benefit. According to Rabbi Eliyahu, this edict is not a guidance to be cynically ignored in real life situations, but the legal basis of the validity of the decision made by the assembly. That is why only a definite opinion of each member is regarded, and indecision ignored.

Rabbi Levi Ben Chaviv of Jerusalem, a prominent authority of the sixteenth century made another ruling, which stems from that very concept (Response 147). The rationale of popular assembly is that each member can hear the others, and thus may form a learned and solid opinion. Hence, if the majority of the members convened before the popular assembly, and formed a majority opinion, the decision that was reached thus in the popular assembly, is invalid and not binding. The majority's opinion was not properly formed, as they did not listen to what the minority had to say before forming it. Moreover, this matter could be never again be decided by the assembly, because after the majority reached a decision, its members will never give a fair hearing to the minority opinion.

It follows from the above rulings, that political decision must be based on the joined sound opinions of the assembly, and not influenced by special and partisan interests. Hence, the political system is not sovereign to make all decisions concerning public administration, or public spending. Its resolutions must be based on valid opinions, and thus there validity might be challenged in court. The court may decide that the resolution reached by the assembly in invalid, because it is unjust, and based only on partisan interests.

H. may challenge the decision to spend much more money on AIDS research than on any other disease, in court. According to Halacha, the court may rule that this decision is unjust, and thus the public research funds should be redistributed in a way that is more just and sensible.

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