Jewish Political Studies Review 21:3-4 (Fall 2009)
A fundamental study of major Judaic adjudication sources concerning public trustees reflects a trend of discomfort along with a demand for transparency and rendering an account by the trustee. This trend does not co-exist with such control and review mechanisms.
However, a scrutiny of various sources reveals a more complex picture:
Many biblical and Talmudic sources reflect the view that transparency is an important requirement for various reasons. From post-Talmudic literature concerning the guardian, charity directors, and community leaders, one can point to trends of differing decisions in the theoretical literature of the early adjudicators on the one hand, and, on the other hand, to the responsa literature in general and the writings of the later adjudicators in particular, which was influenced by responsa literature throughout the generations. Thus, in spite of the line of thought that negated the demand for transparency as found in the main adjudicative literature, the responsa literature reflects a cautious and very complex trend that deals with problems and specific cases. Witnesses to this trend can be found in the halachic works of later adjudicators. Thus, one can find among contemporary adjudicators a great deal of encouragement and support for setting up means of control and review of the work of public trustees. This encouragement and backing is supported, apparently, by the general changes in the concepts of western society struggling for the values of equality, democracy, transparency, and integrity, as well as the changing characteristics of the money markets, trade, industry, and their management.
Are There Control and Auditing Mechanisms in Hebrew Law?
This article attempts to clarify the relationship between Hebrew legal (halachic) sources and control and audit mechanisms. First, one must relate to the issue of the obligation of transparency on the part of elected and appointed public officials concerning their activities. Any auditing institution is dependent upon the existence of a transparency requirement because if elected and appointed public officials are permitted to operate secretly with immunity, why should they be monitored, what should be audited, and what is the basis for any audit? Hence, one must clarify how Hebrew Law relates to the obligatory transparency of elected as well as appointed public officials and their communal conduct.
It is important to note the mutual relationship between the requirements of transparency and rendering an account of one’s activities, as well as the similarities and differences between the two. On the one hand, these requirements of transparency and rendering reports comprise preventive and detective controls. Transparency concerning the trustee’s management as well as the obligation to render an account creates a reality that should make it difficult for him to misuse his position. On the other hand, one should separate the transparency requirement from the obligation to render an account. The transparency requirement does not necessarily foster an obligation to render an account. However, the obligation to render an account is dependent upon the existence of a transparency requirement.
The transparency requirement does not demand any initiated activity on the part of the obligated person, only the responsibility to ensure that his or her conduct can be monitored. The obligation to render a report demands some initiated activity to provide information reflecting his conduct.
From a basic examination of the halachic sources, it appears that generations of adjudicators exempted the trustees from the transparency requirement as well as the obligation of rendering an account. This is the apparent conclusion from the decisions of Alfasi, Maimonides, and the authors of the Tur and the Shulhan Aruch concerning a court-appointed guardian. Thus, in the words of the Shulhan Aruch, when orphans come of age, they are given the money bequeathed to them, and he (the guardian) need not present to them accounts of expenditures and income. Rather, he says to them: “This is what remains.” Following this, while holding a (religious) artifact, he swears that he has not stolen anything from them. The power of the oath is great, yet there is no comparison at all between transparency and the requirement of rendering an account.
The court-appointed apotropus, guardian, serving as a public trustee, is required to have a proven record of personal honesty and be of good character. Hebrew Law, in an instruction that can be defined as a preventive control mechanism, requires rigorous examination concerning his personal character before he is selected. However, after his selection, transparency is apparently not required of the trustee concerning his conduct of the orphans’ financial affairs. Here Hebrew Law is satisfied with the additional control mechanism at the end of his office-the oath.
The same holds true for charity directors: “The charity directors are not required to give an account of the monies entrusted to them for charity, nor the treasurers of the Sanctuary of the monies given for holy purposes.” It would appear from this beraitha that, beside the exemption of rendering an account, the charity directors should not even be bothered with a transparency requirement. That is to say, the transparency requirement is not applied.
This has become halacha in the main adjudicative literature written throughout the generations. The author of the Tur emphasized that essentially one should not demand an account from charity directors, although these directors should voluntarily offer one. As is said therein, “reliable charity directors are not required to give an account; however, in order to be blameless before God and Israel, it is good that they give an account.” Concerning this addition by the Tur of the need to be “blameless,” the Bach notes:
“This is not found in the adjudicators. Perhaps it was taught by Moses our Teacher, obm [of blessed memory], who rendered an account of the donations to the Tabernacle, for who is more trustworthy in His house, yet he gave an account, in order to be blameless before God and Israel.”
The Bach also viewed the last words of the Tur as only advice and good manners, but nothing beyond that. This decision is reflected in all the great codices until the present day.
Therefore, one can apparently assume that this is also the case concerning charity directors and community leaders. Without an obligation of transparency, there is no active basis for control mechanisms and review. However, an intensive investigation of the various sources reveals more complex aspects, as will be explained below.
The Obligation of Transparency and Rendering an Account
Monarchy and Priesthood
In many places the Bible describes how leaders and great men conducted themselves, demonstrating their greatness, or alternatively, their weakness. The sages continued this trend, revealing many details concerning the conduct of these great people. Sometimes these revelations were not complimentary, and at times they touched upon the most intimate of details.
Descriptions of the great fundraising campaigns for constructing and maintaining the Tabernacle and the First and Second Temples are among the most well known. These sources testify to the principle of transparency, which is repeated in the descriptions of how public funds were conducted, and the great caution employed on the part of the officials involved in these situations. The Mishna states that:
“The one that drew the money was not allowed to enter with a turned-up garment, nor with shoes nor sandals, nor with tefillin, nor with an amulet, in order that, in the event of his becoming impoverished, it should not be said that he was thus punished on account of transgression against the treasury; or if he became rich, that he enriched himself by means of money drawn from the treasury. For a man must stand as unblemished before his fellowman as before his God, as it is written [Numbers 32:22]: And ye be thus guiltless before the Lord and before Israel; and [Proverbs 3:4]: So shalt thou find grace and good favor in the eyes of God and man.”
The Mishna describes a priest who enters the treasury office in order to draw money for financing the public sacrifices. To this end a preventive mechanism and follow-up control was established. His entry into the office was to be undertaken while wearing special clothing that had no pockets, and without clothes or objects in which money could be hidden, even if it was highly improbable that he could hide money there. All this was to prevent the priest from transgressing, and also to defend his good name and prevent slander.
The Tosefta describes a more stringent control with the identical objective. According to this procedure, the priest is searched upon entering and exiting the office. Apparently, this stringent procedure, which involved a double search of the priest, was never actually carried out. Nevertheless, the very idea of this procedure testifies to the significance of control, transparency, and integrity.
A further prominent example of a requirement for a preventive mechanism and follow-up control, as well as transparency, when dealing with public property deposited in the Temple, can be found in another Mishna:
“One who desired to bring drink-offerings, for instance, went to Johanan, who was keeper of the seals, paid his money, and received a seal; he then went to A’hia, who had charge of the drink-offerings, gave him the seal, and received the drink-offering. In the evening the two officers came together, when A’hia turned over the seal and received the money instead. If there was too much money, it belonged to the Sanctuary; if too little, Johanan had to cover the deficit; for the sanctuary had that prerogative. “
Apparently, the orientation of this law is to prevent the concentration of power and authority, which may foster some suspicion, or worse, the embezzlement of public property. This is the reason for an additional legal source:
“What do the seven administrators do? They possess seven keys for the Temple Court. Should one wish to open [the court] he cannot until all the administrators assemble and open it. Then the treasurers enter and exit.”
There is no doubt that the supervised lengthy process described here testifies to a trend of transparency in the conduct of the trustees of public property, and to the necessity for such control and audit of their deeds.
Additional control mechanisms in the Temple, not connected with financial affairs, touch upon the conduct of the High Priest in the Temple service. The Mishna describes the activities of the High Priest in the hours before the Yom Kippur (Day of Atonement) service. The many details described are actually preventive and follow-up control mechanisms. This control has the role of preventing mishaps during the most holy of Temple services. From this source, one can derive the significance of the oath as a control mechanism:
The Elders of the Court left him to the attendance of the Elders of the Priesthood, who took him up to the house of Abtinas and made him swear, “We invoke [an oath] upon you by Him who has made His abode in this house, that you shall not alter one thing about which we have spoken to you.” He took farewell weeping, and they parted weeping.
Maimonides wrote the following in his commentary to this Mishna:
“They make him swear on a thing that no person can see if he changes it…for God said that no man shall be in the Tabernacle when he enters to atone in the Holy [of Holies] until his exit, and therefore they make him take an oath. He weeps because he was suspected of apostasy. They weep because they suspected him and our Torah prohibits suspecting anyone of evil doing if it is unknown to us that he is guilty of such action….”
When the principle of transparency is difficult or impossible to carry out, as in the case of the High Priest’s entry to the Holy of Holies where one cannot observe his conduct, then it is necessary to activate a secondary control mechanism: in this specific case, the oath. This case sharpens the use of the oath as a means of control assimilated within a normative process. Although an oath may disgrace the occasion and embarrass the participants, resulting in tears, this mechanism cannot be waived.
The necessity for control mechanisms and the principle of transparency accompanying public officials and ministers finds expression in Aggadic literature. Moses’ exact accounting upon finishing the work on the Tabernacle, as detailed at the end of the book of Exodus, is a source of difficulty for commentators. Why did Moses, God’s great faithful servant, need to provide this account? Why does the Bible give such a detailed account here, when in earlier adjoining chapters the very same details are mentioned? The Midrash offers the following response to these questions:
“However, because the generation’s jesters were gossiping behind him as it states: …when Moses went out…and they stared after Moses…. A man appointed as an official concerning the work of the Tabernacle, the silver ingots, the gold ingots, that has no investigation, nor weight, nor number, what do you want-that he should not become wealthy? When he heard that, he said, “By your lives, when the work of the Tabernacle is terminated, I will deliver an account.” Thus when it was completed, he said to them, these are the records of the Tabernacle.”
The objective of the authors of the Midrash was to employ the difficulties embedded in the biblical verses, as in this specific case, to express their views concerning problems and topics worrying their audiences. This case refers to public officials, always required by communities, who naturally concentrated authority, power, and public funds among themselves, a situation which often led to gossip, rumors and suspicions. On the one hand, this type of homily emphasizes the significance of transparency, control, and audit mechanisms concerning the conduct of public officials in order to distance them from any moral lapse or thoughts of misconduct. On the other hand, these mechanisms defend them from gossip and slander.
Thus, one should not assume that the sages on principle repudiated the legitimacy of transparency concerning the conduct of public officials. The issue concerning the obligation for transparency and rendering an account by public officials is raised in Talmudic literature and by early and late commentators, especially concerning a court-appointed guardian, charity directors, and the seven optimates (good men), also called parnassim. See below for material on this topic.
The Mishna presents a difference of opinion between the tannaim concerning the issue of whether a guardian has to take an oath upon terminating his office: “A guardian who was appointed by the father of the orphans is required to take an oath [when they come of age]. But if he was appointed by the court he need not take an oath. Abba Shaul says that the rule is the reverse.” The Talmud explains that at the base of this difference of opinion among the tannaim is which type of guardian should be encouraged to execute his position by touching upon his honesty and thereby not obligating him to take an oath. According to the primary tanna, in contrast to the court-appointed guardian, the guardian designated by the father is interested in appeasing and aiding the father of the orphans, and thus is willing to take upon himself the role of guardian, even if it involves taking an oath.
According to Abba Shaul’s position, precisely the appointment by the court, including the accompanying publicity, prestige, and good name, is enough of an incentive for the candidate for the guardianship to take an oath upon the termination of his role. This cannot be said in the case in which only the father requested that the person accept the role of guardian. Thus, it would have been fitting, according to both positions, to always demand an oath by the guardian. In certain cases, the non-obligation to an oath stems from the suspicion that those suitable for the position will refuse to accept it.
Hebrew Law has accepted Abba Shaul’s position. The benefits derived from a court appointment and its accompanying prestige are sufficient incentive to convince normal persons to accept the position of guardian, even at the price of taking an oath.
However, from Geonic literature, and from various writs of authorization found in the Cairo Genizah, it appears that the reality was more complicated. Joseph Rivlin has described cases in which the guardian was given no real compensation for his activities: “In all the wills found in the Genizah, in which an executor was appointed to take care of the deceased’s property, most prominent is the aspiration to relieve the executor from all obligations. He is exempt from any type of oath, and is absolved of legal claims and appeals, and is bestowed with trust as if he were two valid witnesses.”
Rivlin offers many examples, concluding:
“On the one hand, the trends of halacha are to be stringent with the guardian. However, on the other hand-in practical cases-a complex system of expressions of exemption developed in the wording of the writs with the object of relieving the guardian. These expressions in the wills provide a probable foundation for the assumption that they comprise fundamental stipulations, explicit or alluded to, for the candidate to this position, before his accepting it.”
Rivlin accepted the assumption of Simcha Assaf that the phenomena of limitation and application of the control and review mechanisms involved in the management of the guardianship have their source in the fact that many men refused or evaded such positions, including court-appointed guardians. In other words, Abba Shaul’s assumptions, that the prestige and good name accompanying the court-appointed guardian were sufficient incentive to accept the position and to accept the demands of control and review, did not withstand the test of time.
In any case, the development described here, the assumptions of the above scholars concerning the direct relationship between the incentives enjoyed by the guardian or candidate for this position, and the very application and scope of the control and review mechanisms surrounding the trustee’s management strengthen the assumption that, should the trustee enjoy tangible incentives such as a salary, it would also obligate him to control and transparency mechanisms.
The controversy among the tannaim concerning the guardian’s oath and the Talmud’s explanation of this controversy comprise the basis for the discussion by some early commentators on the guardian’s obligations if damage was caused to the property of the trusteeship. Thus Nachmanides wrote:
“The law is according to Abba Shaul. It appears logical to me, that also concerning payment, [the law is] like that. A guardian appointed by the orphans’ father who was negligent is exempt, even if witnesses testified [against him], and it is needless to say that he does not swear, for if you obligate him to pay, he will refuse [to accept the appointment…] and a guardian appointed by the court is like a salaried bailiff and is obligated for theft and loss.”
This essential difference between the court-appointed guardian and one appointed by the parent finds expression, according to Nachmanides, not only concerning the oath, but also concerning the guardian’s obligation should damage to the trusteeship property be incurred. In cases in which the obligation to take an oath will not deter a guardian from accepting this appointment, then one can obligate him as a salaried bailiff, and so he is responsible for damages of theft or loss.
Even more so, Nachmanides, Rashba, and Ritva view the oath administered to the guardian as more of a deterrent than as his obligation to bear future damages as a salaried bailiff: “and when the court appointed him, he pays like a salaried bailiff, since he does not refuse the appointment because of an oath, how much more so because of payment.” Thus, if according to Abba Shaul’s position one could demand an oath from the court-appointed guardian without this demand deterring him from accepting the position, and according to Nachmanides and those following him he should be considered as a salaried trustee vis-à-vis future obligations, why can he not be obligated to transparency concerning his conduct of the trusteeship’s funds without his being deterred from accepting the position?
All this relates to the obligation of transparency, which does not demand any great effort on the part of the guardian, but bestows upon others the right to supervise his economic conduct.
As far as the obligation to provide a report is concerned, it is more complicated. The Talmud states that “the guardian must give an account to them upon the termination [of his guardianship]. Rabban Simeon b. Gamliel, however, says that this is not necessary.” Alfasi wrote concerning this: “[w]e saw the Gaon had decided the law according to Rabban Simeon b. Gamliel.” Following Alfasi, the early commentators and the author of theShulhan Aruch also decided the law in accordance with Rabban Simeon b. Gamliel. Thus, the above decision explicitly negates any obligation to render an account.
One must note that Alfasi related to and decided the law in accordance with Rabban Simeon b. Gamliel (and the remainder of the early adjudicators followed him) on a case concerning a trustee who receives no benefits from his being court-appointed aside from a good name and the prestige derived from the appointment. However, one may arrive at different conclusions should the trustee be given a salary for his managing the trust fund. In such a case, one may conclude that there would be no reason not only to obligate the trustee to transparency, but also to require an account of his financial conduct. Indeed, this is the conclusion that emerges in the writings of Rabbi Isaac bar Sheshet Perfet (Ribash), Rabbi Moses Isserles (Ramah), and Rabbi Jehiel Michal Epstein, author of Aruch Hashulhan.
From the discussion until now, one may conclude that the oath was viewed as a control mechanism whose potential deterrent is so effective that it is liable to sabotage the availability and willingness of suitable candidates to accept the position of public trustee. However, from other sources it appears that this situation gradually changed. Thus, Rabbi Abraham b. David of Posquières (Ra’abad) testified that “[n]owadays, one does not swear with God’s name or appellation so that the world should not be destroyed by sinners.” In the community of Posen, a decision was taken that determined it “improper to arouse the ‘Attribute of Judgment’ by numerous oaths as were once undertaken. Thus, in contrast to this [i.e., numerous oaths], there were severe punishments and large fines in order that no person should consider that since he did not swear, he had free rein, Heaven forbid.” In order not to deter suitable candidates, the community elders removed or reduced numerous oaths. In their stead, as a preventive control mechanism, they established a system of heavy fines and punishments imposed upon one who misused his position.
This situation, with all its implications, hones the necessity for the integration of control mechanisms in the administration and governance of the Jewish community.
“They Allow Themselves Permission in It”
The court-appointed guardian is considered a public trustee. Hence, the court must certify that the chosen guardian is characterized by a verified high moral standard: established credibility and honesty of the guardian are stipulations for his appointment. This requirement is part of the preventive control mechanism to ensure the appropriateness of his activity. This is not the case concerning a trustee chosen by an individual to manage his property. The selection of this latter kind of trustee may originate from various considerations, and, in contrast to the court appointee, one is not obliged to choose a guardian possessing superior characteristics of personal credibility and honesty. The individual appointing a trustee may specifically prefer a personality talented in managing funds. The sages did not ignore this fact, as can be derived from the following source that discusses the requirement of an oath where there is an unfounded claim of misappropriation of trust funds:
“The following have to swear also in the case when there is no claim: Partners, tenants, guardians, a woman business-manager in the home, and the son of the house[hold].”
The reasoning suggested by the amoraim for this law is that “these take an oath not in a definite claim, but in a doubtful claim: Partners and tenants…. And wherein are these different? Because they allow themselves permission in it.” The sages expressed their concern that within the framework of their endeavors in managing other persons’ funds, not a few persons may allow themselves more than they deserve, deriving benefit from that property in one way or the other. Following the Talmud, Maimonides formulated the following:
“Partners…each one of them swears, according to their dictum, as for a doubtful claim. Why did the Sages enact this oath? Since they manage and make endeavors with the owner’s property these [persons] justify to themselves that they are entitled to anything they take for themselves, and consequently, the Sages enacted that they are obligated to swear even where no real claim against them is lodged, so that they conduct all their affairs with justice and trustworthiness.”
Rabbi Joseph Caro also decided the law thus. We note that in contrast to Rabbi Jacob Tam’s view, which only obligated the unsalaried guardian to take an oath, Rabbi Joseph Caro ruled that a salaried trustee must take an oath even when there was no real claim.
Indeed, this is not an obligation to render an account, but rather an oath on the background of an unfounded suspicion against the guardian. However, the reason provided by the amoraim for requiring an oath, appearing only in the discussion concerning the guardian (who is not a public trustee and is not appointed by the court), is also applicable nowadays to many bureaucrats whose activities are of public interest. Today the various appointments of persons managing public property are carried out on the basis of professional considerations in a manner similar to the appointment of “partners, tenants and guardians” mentioned in the Mishna. The measure of the honesty and integrity of a bureaucrat chosen for a position within the public system is not meant to be singularly and prominently impressive. The major issue in accepting a candidate to fill a position is his professional qualification.
If indeed this concern is applicable nowadays to public officials, to the point of obligating them to an oath without a specific claim, then it is logical to demand that there be transparency when the trustee receives a full salary for his work.
Indeed, just as one can comprehend the rationale behind the concern about a trustee embezzling money in those cases where he does not receive a salary for his endeavors, so too, it would be common for him to embezzle even if he receives a salary for his trusteeship, since he does not see his embezzling as crossing definite lines, but as an additional amount added to the salary he legally receives in any case. As stated above, Rabbi Joseph Caro decided the law thus. Further testimony to this logic, and the danger of such embezzlement, can be found in community listings.
Charity Directors and Community Leaders (Parnassim)
The Disparity between Theoretical Law and the Responsa Literature
Just as one can note the different trends of legal decisions concerning transparency demanded from guardians found in medieval codification literature as opposed to early responsa literature, one can observe similar differences concerning the measure of transparency demanded by charity directors and community leaders. Although the view not requiring the rendering of an account can be derived from main codification literature, a more complex and cautious view is reflected in the responsa literature that treats specific problems and cases. One can find witnesses to this trend in thehalachic works of later adjudicators.
Thus, for example, Raba’s statement: “This rule was meant to apply only where the seven ‘good men’ of the town did not sell [the synagogue property] in the presence of the townspeople’s assembly. But if the seven ‘good men’ of the town sold [it] in the presence of the townspeople’s assembly, even if it was [sold] for a drinking place, the transaction holds.” According to Rabbi Eliezer bar Joel Halevi (Rabiah), the deeds of theoptimates have singular validity, stemming from the transparency of the public trustees’ deeds carried out “in the presence of the townsmen,” as well as the townsmen’s agreement to them.
Rashba was asked a question concerning “townsmen, important community members” who threatened one Reuben with excommunication for “attempting to destroy sin in the city, and to admonish transgressors.” Apparently, the essential opposition of the community leaders stemmed from a feeling of a lack of self-confidence and a persecution complex, or perhaps from a real fear of revealing immoral and unbefitting conduct. The threat of the ban can be explained on the basis of their fear that Reuben would be officially appointed to his post by the government. In his response, Rashba attacked the community leaders who wanted to take advantage of their power and authority in order to excommunicate Reuben. Rashba defined the reality that the community leaders asked about as “breaching the fences of the Torah.” From his words it is evident that he recognized Reuben’s work as “improving the world.” One may assume that Rashba considered positively Reuben’s effort to achieve transparency, and even designed further control mechanisms dealing with management by the community leaders.
Between the Ideal and Reality
One finds a supporting and encouraging attitude toward transparency and rendering an account by community leaders and charity directors in a responsum by Rabbi Moses b. David (Maharam) Halawa (fourteenth century, Spain). He employed great caution in his response that “[i]f you are asking concerning the charity director, it has been taught…one does not make an account with them…for they perform honestly, and if you are asking about the tax collector, there is no doubt, that their status is like the Temple treasurer…and it has lately been accustomed everywhere to make accounts with them for they have considered themselves as managing their own funds.”
The results of this multifaceted reality also required complex decision making. This can be seen in a responsum by Rabbi Jacob b. Judah (MahaRi) Weil (15th century, Germany) who was asked how an elected public official should act in rendering an account of his activities with public funds. In his response, he differentiated between three situations:
1. When a community leader was personally appointed by the community, then he need not render an account, since he was believed from the onset.
2. When a community leader was appointed to his position not by means of direct elections by the community, then he is obligated to render an accounting.
3. Even in cases in which he had been appointed by means of direct elections, but there is a probable cause to suspect that he acted improperly, then that community leader must render an account.
Rabbi Jacob Weil’s responsum concerns a community leader and not a charity director. However, even if a halachic differentiation is to be made between these two appointees, concerning the measure of transparency required from them, it appears that Rabbi Jacob Weil himself distinguished between these types of appointees, associating various characteristics to a public trustee: one who was directly elected by the community and one who was not; one who was considered morally upright and one who was not. Thus, from Rabbi Weil’s statement, one can conclude that nowadays an obligation to render accounts according to the principle of transparency is incumbent upon the vast majority of public officials who are in contact with public funds and enjoy economic authority. He even added a description of the inadequate situation existing during his lifetime, stating that “in our numerous sins, this stumbling block [is found] in most communities, where the community leaders strongly oppress and subjugate the people not for the sake of Heaven, but think of their own benefit, removing the yoke from their back and placing it on the shoulders of miserable people.” Even if this description does not match all periods or locales, the advantage and proper use of the principle of transparency and the application of the requirement to render accounts can prevent the deterioration of the situation to one similar to that described by Rabbi Weil, both in the realm of preventive control as well as in the realms of follow-up and corrective controls.
One can assume that the trends of various decisions in the codification and responsa literatures stem from the different definitions concerning the identification and personality of the charity directors. In other words, the theoretical adjudicative literature dealt with the desired charity director, while the responsa literature dealt with the existing ones. Already during the Talmudic period, charity directors were considered distinguished persons. Indeed, following the sages, Maimonides described the ideal characteristics of a charity director: “No man should put [anything] in the collection plate unless he knows that the appointee is trustworthy, wise, and knows how to properly lead, as Rabbi Hananiah b. Tradyon.”
The sages already equated to some extent the power of charity directors to that of the court:
“The charity fund is collected by two persons [jointly] and distributed by three. It is collected by two, because any office conferring authority over the community must be filled by at least two persons. It must be distributed by three, on the analogy of money cases [which are tried by a court of three].”
Authority over public funds requires the discretion and authorization of the court. Considering this background assumption one can understand the decision of Rabbi Isaac of Vienna, author of the Or Zaruah, that despite the fact that one should initially make great efforts to meet the legal criteria cited by the adjudicators, nonetheless, when they cannot be met, one can collect charity with the help of a single director. However, in such a case, one must ensure that the moral standards demanded for this role are higher than ever.
Apparently, Maimonides, Mordechai, and additional early and later adjudicators strived to reach the same ideal-from the outset a person who deals with public funds must be known for his fear of Heaven and his honesty. However, all this is only “from the outset.” Although in a number of places he set high standards for candidates for public trusteeship, Maimonides himself did not stipulate that these conditions must actually be fulfilled in the election of public trustees: “And similarly, if all the townsfolk or the majority accept upon themselves one person, all that he does is considered valid, and he sells and buys by himself according to his own views and he may dispense as he sees fit.” Rashba concurred with this view.
A further example of the disparity between the desired and actual situation can be found in Rabbi Joseph Caro’s attitude toward charity directors: In his Shulhan Aruch code, he followed Maimonides in not demanding an accounting from charity directors. Yet in his compendium on the Tur, he wrote:
“And our master was scrupulous to write that “charity directors are qualified,” that is, only when they have a presumption of being suitable, and if this is not the case, then they must render an account. And what he wrote-“Nevertheless, in order that they be blameless before God and Israel (Numbers 32:22), it would be good if they render an account”-this is obvious.”
It may be that the brief style of Rabbi Caro’s words in the Shulhan Aruch, in contrast to the additional remarks in the Beit Yosef, stems from his desire to curb the hesitation by a suitable candidate from accepting his task. This is in a similar vein to Abba Shaul releasing the guardian appointed by the father of the orphans from the obligation of taking an oath in order not to frighten away candidates for a position that does not bring the same honor or prestige as that of a court-appointed guardian.
However, it is more likely that Rabbi Caro refrained from adding this note to his central code, the Shulhan Aruch, because its starting point in formulating the law of charity directors is that there are active control mechanisms ensuring the quality of these directors to begin with: the person was chosen by the community for this public position because of his superior trustworthiness and his eminent moral standards. However, it is logical to assume that when this is not the case, as detailed by Rabbi Caro himself in his Beit Yosef, one should demand transparency from the charity directors regarding their management of funds.
The Audit Mechanism in Jewish Communities
As mentioned above, the codes and responsa literature reflect the gap between the desirable and reality regarding the image and functioning of public trustees, and all that is implied by this. Rabbi Haim Halberstam, the author of Divrei Haim, related to this. From his formulation one can see the severity of the situation:
“With my own eyes I have seen the great oppression done in this city, and all in the name of Heaven, and even if any trustee is appointed, he would probably be inclined toward one of the wealthy and influential community leaders, as is known…consequently it is proper that a three judge court will be exact in its inquiry…and not heed the city’s rabbis who scorn and deride to show their greatness…. One should not bring proof from earlier generations that most of the wealthy and influential community leaders in the community were righteous, as our fathers have recounted to us. Also, there was great embarrassment before Torah scholars; however, now, because of our great sins, the leaders are no longer defined as righteous, and in the footsteps of the Messiah insolence will increase…and they pass regulations of Sodom in the name of Heaven, and, therefore, it is not fitting to inquire too much into this matter.”
Indeed, from this period from the onset it was fitting that community leaders enjoyed the status of judges. However, the situation was actually different, thus leading to the rabbis’ reservation to grant them even limited judicial privilege that had originally been within their purview. Accordingly, Rabbi Aaron Walkin, author of Zekan Aharon, wrote that:
“…even according to Ramah, who wrote that the custom was that the optimates had the authority of the outstanding men of the generation; that in his generation [they] were knowledgeable, fearful and wholesome. However, nowadays in these cities and in this generation in which, because of our great sins, trustworthy men are lost, so that their deeds should have no ulterior motives, certainly the community never granted them authority to deliberate and adjudicate.”
In light of the above, one can also assume that those who released the public trustees from being subject to the various control mechanisms concerning public monies would admit to the import of this subservience, especially in generations in which many public trustees are no longer prominent in the noble attributes of honesty and fear of Heaven. Indeed there is evidence for this in the books of halacha compiled by later authorities. Even more so, with regard to the halachic aspects of their functions, a number of adjudicators caution against generalizations regarding the definition of charity directors, community leaders, and guardians. From their statements one can assume that indeed there were public trustees who were included within the category of those charity directors mentioned in halacha, and thus it was fitting to demand total transparency regarding their management of public affairs.
Consequently, it is not surprising that one can find guidelines and regulations reflecting the positive views of the rabbis on the obligation of public officials and bureaucrats to transparency. The same is true of the existence of control mechanisms that ensure the legality of their actions and their righteous attributes, and even the existence of some organized control process, as can be seen from a number of decisions taken in seventeenth-century Moravia:
“And they should be very scrupulous and examine each detail and see that the accounting is exact. Afterwards the leaders are obligated to go to a private home by themselves, taking all accounts, and review all deficits, assets, and exchanges, deliberating all expenditures to determine that they were done correctly, and if the city is obligated to stand by them.”
The persons who regulated these rules of control and review were not satisfied with these and later added a further stage of control and review:
“Should any doubt arise in any community concerning the management of the community…and if it should appear to him that the matter was conducted improperly, whether the matter was private or public; the provincial Rabbi had the authority to write to them as he saw fit, whether as an admonishment, or a warning or as an order, all as the matter required…so that they tread upon a good path.”
Isaac Fritz Baer described what happened to the community of Saragossa in the Kingdom of Aragon in Christian Spain:
“At that time, a great deal of the community leadership was in the hands of Solomon b. Alrabi, one of the leaders (mukdamin) of primary importance (1373-1379). Complaints concerning incompetent leadership that was destroying the community reached the ear of…who was appointed manager of the communal affairs…with the consent of the community leaders, Thesaurarious received an account of the financial activities of ibn Alrabi at the end of 1381…and ibn Alrabi was found to be blameless. Nevertheless, by an official report in March 1382, it was explicitly stated that the community of Saragossa was not properly ruled, and that the communal finances were being improperly and negligently conducted by the leaders. It was found that the community’s debts had risen to two hundred thousand solidaris. According to the order, it was the leaders who caused this, for they absolved their relatives from paying taxes as well as granting them special benefits.”
The ability to later trace the financial activities of public trustees testifies that these trustees were required to record exactly all their activities. Usually, the problem focused on the extent of the records’ accuracy and veracity, which was, in many cases, the result of the measure of reference given to these records.
Thus, for example, one can find regulations that required control and review mechanisms for the guardian’s activities. A guardian could be removed from his position with all the accompanying implications, if his accounts were not in agreement, or even if it became clear that he acted negligently.
Apparently, control over the guardians’ conduct was common during the period of the Geonim and medieval rabbis. Examples can be found in Genizah documents. The Taz (acronym for Turei Zahav, a commentary on the Shulhan Aruch by Rabbi David Halevi Segel [1586-1667] composed in Ostrov, Ukraine) at the beginning of the seventeenth century testified that “in the holy communities they have the practice of appointing the court to supervise the affairs of the guardians.” Likewise, one can find in Pinkas Medinat Lita the instruction to
“…appoint along with him accountants who will receive accountings from the guardians…and each of the three communities must appoint three trustees…who will receive an annual accounting from the guardians, and each year entering the amount [due] each orphan into their special ledgers.”
Similarly, one can acquire a positive view of famous adjudicators regarding the existence of control and review mechanisms concerning the guardians’ conduct. Thus, for example, in the responsa of Rivash, Rabbi Solomon ibn Denan, Ramah, and contemporary adjudicators, the judges emphasize the importance of transparency, control, and review in this matter.
On the basis of this discussion, it is possible to conclude that despite the difficulty of pinpointing clear sources in the main adjudication literature on a requirement for transparency or the rendering of an account from the guardian or public trustee, one can note sources that do indeed discuss these issues and support the importance of transparency and the necessary function of control and review mechanisms in public administration. This trend is reflected in the responsa literature and in communal regulations and afterwards, in halachic works by the late adjudicators.
A fundamental study of major Judaic adjudication sources concerning public trustees reflects a trend of discomfort along with a demand for transparency and rendering of an account by the trustee. This trend does not co-exist with control and review mechanisms.
However, meticulous scrutiny of various sources reveals a more complex picture. The many biblical and Talmudic sources reflect the view that transparency is an important requirement for various reasons. From post-Talmudic literature concerning the guardian, charity directors, optimates, and other community leaders, one can point to trends of differing decisions in the theoretical literature of the early adjudicators on the one hand, and, on the other hand, in the responsa literature in general and the writings of the later adjudicators in particular (which was influenced by responsa literature). Thus, in spite of the line of thought that did not demand transparency, as found in the main adjudicative literature, the responsa literature reflects a cautious and very complex trend that deals with problems and specific cases. Witnesses to this trend can be found in the halachic works of later adjudicators. Consequently, one can find among contemporary adjudicators total support for setting up means of control and review for the work of public trustees. This is apparently encouraged by the general changes in the concepts of Western society struggling for the values of equality, democracy, transparency, and integrity, as well the changing characteristics of the money markets, trade, industry, and their management methods. Also discussed at length was the disparity between the theoretically desirable character of public trustees and the reality in which they actually function.
* * *
* This article is the first part of an inquiry clarifying the place of the audit in Hebrew Law. I extend my thanks to the translator Shlomo Pick, and to Moshe Devere who edited and checked the paper.
General note: All Talmudic citations are from the Babylonian Talmud unless otherwise stated. The translations of the Hebrew and Jewish sources are based upon the Soncino and JPS translations where available with Bible passages always italicized. Where unavailable, a free translation and name spellings was made based on usage in the Soncino books and in Rabbi Abraham Zacuto, Israel Shamir, trans. and ed., The Book of Lineage (Sefer Yohassin) (NC: Zacuto Foundation, 2005).
. Control is an inspection mechanism, which is an integral, embedded, and inseparable part of the monitored system. It inspects the proper functioning of the system’s components, as well as the quality of the system’s activities and the resulting products (see Nissim Mizrahi, Torat Habikoret Hapnimit [Tel-Aviv: Cherikover, 1960], 1, 79. [Hebrew] Mizrachi is a researcher, lecturer, and senior fellow in Political Science in the Public and Internal Auditing Training Program at Haifa University who served for many years as internal auditor for many large corporations). Three control types are generally recognized:
1. Preventive controls-aimed at preventing erroneous and undesirable actions within the system’s processes.
2. Follow-up controls-aimed at checking the system’s functioning. This is usually accomplished by checking the preventive controls.
3. Corrective controls-aimed at drawing conclusions resulting in correction, once some failure in the system has been detected.
The task of the audit function is to evaluate the actions of the audited entity, through an independent and un-biased assessment. The assessment is based upon the reviewed entity’s objectives, the methods by which the entity endeavors to achieve its goals, and the entity’s performance results, compared to the accepted or required norms in the field that is being examined. The assessment is performed in compliance with several criteria, referred to by auditing professionals as “standards.” In each of these criteria, a comparison is made between “the desirable” and “the reality.” The standards are legality, regularity, efficiency (including economic standards), effectiveness, and integrity. In contrast to judicial review, which leads the inquiry to draw conclusions and hand down an actual verdict, the audit does not make decisions regarding the case in hand, and does not possess the authority to enforce. Its role is to bring the conclusions of its examination, along with the accompanying recommendations, to the audited entity’s management. The management is the body responsible for carrying out the required corrections and for improving the organization’s processes and performance results. In actuality, publication of the audit report itself is the sole “weapon” available to the auditing institution.
. The Merriam-Webster Online Dictionary defines the term “transparency” as the condition of being transparent. Transparent, in turn, is defined as having the property of transmitting light without appreciable scattering so that bodies lying beyond are seen clearly (pellucid); allowing the passage of a specified form of radiation (as X-rays or ultraviolet light); fine or sheer enough to be seen through (diaphanous). It is also defined as free from pretense or deceit (frank); easily detected or seen through (obvious); readily understood; or characterized by visibility or accessibility of information, especially concerning business practices. Merriam-Webster Online Dictionary, https://www.jcpa.org/System/www.merriam-webster.com/dictionary/transparent (accessed 1 December 2008).
. Rabbi Isaac Alfasi (11th century, North Africa, popularly known by his acronym, Rif) on Gittin 24b “‘The guardian must give an account of his guardianship at its close,’ these are the words of Rabbi. Rabban Simeon b. Gamliel, however, says that this is not necessary…. We saw an attribution to a Gaon that the ruling is according to R. Simeon b. Gamliel.” Maimonides (Moses b. Maimon, 12th century, born in Cordoba, Spain, died in Cairo, Egypt), Mishneh Torah, Hilchot Nahalot 11:5; Tur Shulhan Aruch, Hoshen Mishpat, 290:16 (known as the Arbaah Turim, authored by Rabbi Jacob b. Asher Tam, 13th-14th centuries, born in Germany, moved to Toledo, Spain. He is popularly known after this work as the Baal Haturim).
. Rabbi Joseph Caro (1488-1575, Spain, Turkey and Safed, Israel), popularly referred to as Maran. Shulhan Aruch, Hoshen Mishpat 290:16.
. Apparently, the source is from the Greek word επιτροπος, meaning the “father of children.” See Aruch Hashalem (New York: Pardes, 5715-1955), s.v. “apotropus”; Encyclopedia Talmudit, M. Bar-Ilan, ed., (Jerusalem: Encyclopedia Talmudit-Mossad Harav Kook, 1947) II, “apotropus” [Hebrew]; Jacob Kopel Reinitz, “Ha’apotropus Leyetomim Bamishpat Ha’ivri,” (unpublished PhD thesis, Jerusalem: Hebrew University, 1984), 1. [Hebrew] Concerning this discussion, the author of the above entry in the Talmud Encyclopedia notes that “this name has been accepted to refer to anyone appointed to take care of the affairs of someone else.”
. See for example Maimonides, Melachim 1:7; Rashba (Rabbi Solomon b. Abraham Aderet, 13th century, Spain, known by the acronym Rashba) Responsa 3, 399; Tur, Yoreh De’ah 256; Takanot Medinat Mehrin, Va’ad Austerlitz, 1662, No. 346 (9).
. Gittin 52a: “The guardian must give an account to them upon the termination [of his guardianship]. Rabban Simeon b. Gamliel, however, says that this is not necessary.” See Alfasi, Gittin 24b; Responsa Mabit 347.
. Bava Batra 9a. The communal institution labeled “Charity Fund” (kuppah shel zedakah) is described by Maimonides (Mishneh Torah, Hilchot Matanot Aniyim 9:1) thus: “Every city with Jews must appoint charity directors, known and trustworthy men who visit the people from Sabbath eve to Sabbath eve and take from each person what is appropriate for him to give and what has been determined as his donation. They distribute the money from Sabbath eve to Sabbath eve, giving each poor person enough food for seven days. This is called the kuppah.” Free translation.
. Bava Batra, ibid., Rav Hai Gaon (Rabbi Hai b. Sherira, 10th-11th centuries, Pumpeditha, Babylon), Mishpetei Shevu’ot, I, Shevuat Hesset, s.v. “veaf-al-pi”; Alfasi, Bava Batra, 9a; She’iltot d’Rav Ahai Gaon 64, s.v. “b’ram”; Sefer Halachot Gedolot 76, Hilchot Hesped, p. 691; Maimonides,Mishneh Torah, Hilkhot Matanot Aniyim 9:11.
. Tur, Yoreh De’ah, supra note 6.
. For example see Berachot 62a and Ketubot 62b, 75a.
. Concerning the Tabernacle, see Exodus 28 and 38. Concerning the First Temple, see II Kings 12 and the parallel chapter in II Chronicles 24; II Kings 22 and the parallel in II Chronicles 34. Concerning the Second Temple, see Ezra 8. See also the extensive analysis by Zalman Bombach, “Bekoret Kesafim Betkufat Hatanach,” Iyun Bebekoret Hamedinah 48 (5752-1992): 722-745. [Hebrew]
. Mishna Shekalim 3:2.
. Tosefta Shekalim, Lieberman, ed., Tosefta Kepeshuta (Jerusalem: Hotza’at Mekhon Bet Ha-midrash Le-rabanim, 5753-1992), 2:2. One should note that the Tosefta does not mention the prohibition of wearing clothing with pockets or entry while wearing Tefillin, yet it cannot be denied that a body search is a more stringent alternative. Likewise, the version in Yerushalmi Shekalim 3:2 is of interest: “A kavatz should not draw money so as not raise any suspicion.” The term kavatz may be explained in a number of ways, as a person with long wavy hair or a hurrying poor man who collects alms. Thus, one can see the extreme caution taken by the Jerusalem Talmud concerning this matter.
. See Maimonides, Mishneh Torah, Hilchot Shekalim 2:10.
. See Tosefta Yebamot (Lieberman) 4:7; Tosefta Pe’ah 4:15; Mishna Yebamot 2:10 and R. Obadiah Bertenora (15th century, Italy), commentaryad loc.; Maimonides’ commentary to Mishna Bava Kama 10:1. For further material on integrity, see Nahum Rakover, Shilton Hahok Beyisrael(Jerusalem: The Library of Jewish Law, 1989), 89ff. [Hebrew]
. Mishna Shekalim 5:4.
. In this context, one should note the words of Abarbanel in his commentary to Deuteronomy 17:14: “A felony is more likely for a single person…than many men to transgress in unison.” Don Isaac b. Judah Abarbanel (1437-1508, born in Lisbon, Portugal, died in Italy) was a Jewish statesman, serving in the courts of Portugal, Spain and Italy; philosopher; Bible commentator; and financier. See also Josephus Flavius (born Joseph b. Matthias, a priest, 1st century CE), Antiquities of the Jews, Book VI, chapter 12:7: “and consider the disposition of men, that while they are private persons, and in a low condition, because it is not in their power to indulge nature, nor to venture upon what they wish for, they are equitable and moderate, and pursue nothing but what is just, and bend their whole minds and labors that way; then it is that they have this belief about God, that he is present to all the actions of their lives, and that he does not only see the actions that are done, but clearly knows their thoughts also, whence those actions do arise. But when once they are advanced into power and authority, then they put off all such notions, and, as if they were no other than actors upon a theater, they lay aside their disguised parts and manners, and take up boldness, insolence, and a contempt of both human and Divine laws, and this at a time when they especially stand in need of piety and righteousness, because they are then most of all exposed to envy, and all they think, and all they say, are in the view of all men; then it is that they become so insolent in their actions, as though God saw them no longer, or were afraid of them because of their power.” Josephus, Complete Works, Translated by William Whiston (Grand Rapids: Kregel Pub., 1964), 139-140.
. Tosefta Shekalim (Lieberman), 2:15.
. Mishna Yoma 1:1-7.
. Ibid. 1:5.
. Maimonides, Commentary on the Mishna, Yoma, 1:5.
. Midrash Tanhuma (Warsaw: Berger, 1879), Pekudei, 7.
. For another example of this type of homily, see Shemot Rabba (Vilna: Romm Bros., 1878), Parsha 51: “…however, although Moses was himself the treasurer, he called others and made an account with them….”
. Indeed, in many places one can see the demand by the sages for charity directors to be extremely cautious in their conduct concerning public funds, to prevent others from false suspicions and slander. See, for example Bava Batra 8b: “The Rabbis taught: Charity directors must not separate themselves from each other (while they are engaged in collecting)” and Shulhan Aruch, Yoreh De’ah, 257:2.
. See Tosefta Megilla, 2:12-15. Gedalia Allon, Toldot Hayehudim Betekufat Hamishna Vehatalmud I (Tel-Aviv: Hakibbutz Hame’uhad, 1967), 107ff. [Hebrew] One can derive the affinity between the guardian, charity director, and parnas from many sources in Jewish religious literature. Joseph Rivlin, Hayerusha Vehatzeva’ah Bamishpat Ha’ivri (Ramat-Gan: Bar-Ilan University Press, 1999), 226, fn. 148 [Hebrew], notes that the term “apotropus” (guardian) has a further extensive use as a deputy, appearing mostly in powers of attorney. The double use of this term reinforces the link between these officials. See responsa of Rabbi Judah b. Judah Weil (Germany, 15th century), Responsa MahaRi Weil 173; Rabbi Yom Tov b. Moses Zahalon (Safed, 16th-17th centuries), Responsa Maharitatz (Yeshanot), 55, s.v. “veharei”; Rabbi Benzion Meir Hai Uzziel (Israel, 20th century), Responsa Mishpetei Uzziel, vol. 4, Hoshen Mishpat, 4; Rabbi Eleazar Fleckeles (Prague, 18th century), Responsa Teshuva Mi’ahavah, I, 208, s.v. “vechol haosekim”; Jacob Nacht, “Haparnas Beyisrael,” Sinai 12 (5703): 23-282. [Hebrew] Of course, the comparison between these officials is general, and one should not generalize nor compare the specific laws of all public officials.
. Mishna Gittin 5:4.
. Gittin 52b. One could formulate this differently, in which case one can demand an oath from the guardian without his recoiling from accepting the position. See Rashi, ad loc.: “According to each position, the reason is for improving the world.” Rashi (the acronym for Rabbi Solomon Yitzhaki [1040-1105] born in Troyes, France, studied in Worms and Mainz, Germany; commentator par excellence on the Bible and Talmud) Yerushalmi Gittin5:4 (and commentaries ad loc.( offers a slightly different explanation, but does not really change anything from what was said before.
. Maimonides, Mishneh Torah, Hilchot Nahalot, supra note 3; Tur, Shulhan Aruch, Hoshen Mishpat, 290:16.
. J. Rivlin, supra note 27, 230. One should note that Rivlin relates these matters to guardians not appointed by the court, but by personal appointment. However, after his survey he wrote that “[i]t is worth noting, that a similar development applies to a court appointed guardian,” citing proofs from Geonic literature and Genizah documents. For a lengthy discussion see page 232.
. Ibid., 231.
. Nachmanides (Ramban, Rabbi Nahman b. Moses, 13th century, born Gerona, Spain, died Jerusalem) on Gittin 52b. See also the words of Rashba and Ritva (acronym for Rabbi Yom-Tov b. Abraham Ashbili, 13th-14th century, Seville, Spain) ad loc., who expand the scope of the trustee’s obligations in cases of damages to the trusteeship property.
. Nachmanides, ibid. See also Rashba, Responsa, vol. 5, 101.
. Gittin, 52a.
. Alfasi, Gittin, 26a.
. Maimonides, Mishneh Torah, Hilchot Nahalot, supra note 3; Rashba, Gittin 52a; Hiddushei Haritva, Gittin 52a; Ittur (Isaac ben Abba Mari, 12th century, Marseilles), ot peh, Apotropus, 78b; Maggid Mishneh (Rabbi Vidal di Tolosa, 14th century, Spain) on Mishneh Torah, Hilchot Nahalot, 11:5;Beit Yosef, Hoshen Mishpat 290:3, s.v. “ucka’asher”: “And he must give an account of his guardianship at its close, these are the words of Rabbi. Rabban Simeon b. Gamliel, however, says that this is not necessary, and the adjudicators decided the law according to Rabban Simeon b. Gamliel.”
. R. Isaac bar Sheshet Perfet (Ribash, 14th century, Spain-Algeria) was asked concerning the appointment of a widow as guardian over her son, although the appointment of a woman to such a position was not customary. In his response (Ribash, Responsa, 495), Ribash affirmed the appointment and even noted that one may take advantage of her dedication and her total obligation as a mother, an argument that usually does not find expression in normative decisions. Additional adjudicators followed his ruling. See Rama, Hoshen Mishpat, 290, 24; Aruch Hashulhan, 290, 12;Piskei Din – Jerusalem, Dinei Mamonot Vebirurei Yohassin (Jerusalem: Weiss, 5763-2003), 8, 332.
. Ra’abad (acronym of R. Abraham b. David of Posquières, 12th century, Spain), Hassagot to Maimonides’ Mishneh Torah, Hilchot Shevu’ot, 11:13.
. D. Avron, ed., Acta Electorum Communitatis Judaeorum Posnaniensium 1621-1835 (Pinkas Hackesheirim shel Kehilat Pozna 5381-5595) (Jerusalem: Mekize Nirdamim, 1966), II, 6, decision from the year 5476 (1716). [Hebrew]
. For example, see Shulhan Aruch, Hoshen Mishpat, 290:2.
. Mishna Shevu’ot 7:8. This does not refer to an oath administered at the termination of the guardian’s term of office dealt with in the previous section, but a different oath. See the commentary of Rabbi Obadiah of Bertenora, ad loc.
. Shevuot 48b. See Rashi, ad loc.: “Because they allow themselves permission in it-because they took trouble to deal with the property.”
. Maimonides, Mishneh Torah, Hilchot Shluhin Ushutfin, 9:1-2. It should be mentioned that Maimonides’ explication that the Gemara is dealing with a guardian of orphans is not accepted by other early adjudicators.
. Shulhan Aruch, Hoshen Mishpat, 93:1; Beit Yosef, Hoshen Mishpat, 93:1.
. Understandably, also today there is a demand to view the appointment of each public official as an appointment by public trustees for the benefit of the public. Nevertheless, in the end, the central consideration for his appointment is a professional one. See, for example Menahem Elon,Begatz 98/154, Histadrut Haovdim Haklalit Hahadash v. Medinat Yisrael. [Hebrew]
. Shulhan Aruch, Hoshen Mishpat, 93:1.
. Megilla 26a-b; Responsa, Rabbi Haim b. Isaac (Maharach) Or Zaruah (Hakatan) (13th century, Germany), 222. Raba’s statement has been fixed as law. Raba (270-350, an amora, Mahuza, Babylon). See Maimonides, Mishneh Torah, Hilchot Tefilah Unesi’at Kapayim, 11:18; Tur, Shulhan Aruch,Orah Haim, 153:7.
. See Rama’s (acronym for Rabbi Moses Isserles, 16th century, Poland), note to Orah Haim 153:7, Mishnah Berurah, Orah Haim 153:7. Concerning Rabiah’s (12th-13th century, Germany) position regarding the optimates’ power, see Jehiel S. Kaplan, “Samchut Uma’amad Manhigei Tzibbur Bekehila Hayehudit Biyemei Habeinayim,” Diné Israel 18 (5755-5756; 1995-96), 286ff. [Hebrew] It should be mentioned that immunity was sometimes demanded by communal leaders concerning certain matters that they dealt with. See for example responsa of Rabbi Judah b. Judah Weil, Responsa MahaRi Weil 173; Rabbi Ezekiel b. Judah Landau (1713-1796, Poland), in Responsa Noda Biyehudah, 2nd Edition (Jerusalem: Mifal Noda Beyehuda, Makhon Yerushalayim, 5790-5768/1990-2008); Yoreh De’ah 157, s.v. “yafeh.”
. Rashba, Responsa, vol. 2, 279. From the responsum’s language it is difficult to know for certain what exactly Reuben’s post was, but it may have been on the “Board of Inquiry of Transgressions” mentioned in the writings of Spanish sages.
. For further reading on Reuben’s post, see Yitzhak Fritz Baer, Toldot Hayehudim Besefarad Hanotzrit (Tel-Aviv: Am Oved, 1959), 138ff., 266. Menahem Elon, “Samchut Ve’otzmah Bakehilah,” Shenaton Hamishpat Ha’ivri 3-4 (5736-5737; 1976-77): 19 [Hebrew] cited this same case adjudicated by Rashba, and Elon labeled that position as “a type of state or municipal comptroller.”
. Maharam Halawa (Rabbi Moses b. Rabbi David, 14th century, Spain), Responsa Maharam 94, s.v. “teshuva.”
. Responsa Mahari Weil 173.
. This is not only because nowadays most of the officials in different sectors and levels are not directly elected by the public, but as a result of the restrained trust of the public regarding the ethical management of community leaders in differing levels of office work and management. Concerning this, see R. Moses Schreiber (Sofer) Responsa Hatam Sofer (Jerusalem: Hod, 5732-1972) vol. 6, Likutim 59: “Know my son and disciple, that during my entire life I was distressed by this verse ‘and you shall be blameless before God and Israel.’ And these two obligations of blamelessness before God and blamelessness before Israel are a brace of riders on our back. It is easier to fulfill the obligation of blamelessness before God than the obligation of fulfilling one’s obligation toward mankind, for they have all kinds of strange thoughts and deliberations in the moonlight.”
. Responsa MahaRi Weil, supra note 53. See his thoughts concerning the rabbinate, supra, note 53, 163: “There are some among them who are arrogant to rule over them and employ the crown of the rabbinate while their intent is for their own honor so that they can sit at the head table and be the first to proceed.”
. See for example, Mishna Kiddushin 4:5: “We make no investigation from the altar and upwards, from the dais and upwards, nor from the Sanhedrin and upwards; and all whose parents were established to have been among the public officers or charity overseers are permitted to marry into the priesthood, and their descent is not investigated.”
. Maimonides, Mishneh Torah, Hilchot Matanot Aniyim, 10:8. See also Hilchot Melachim, 1:7: “And anyone who does not have the fear of Heaven in him, although his wisdom is great, is not to be appointed to any position in Israel.” Maimonides, Responsa, ed. Blau (Jerusalem: Mekitzei Nirdamim, 5718-5725/1958-1965), II, 271.
. Bava Batra 8b. The authority of the charity directors to claim amounts of charity from citizens is considered to be rulership, and thus it is not fitting to grant a person absolute authority to extract money from a fellow Jew. Consequently, Jewish Law demands that this authority be undertaken by two persons. It would appear that the role of each director is to support his colleague in his role, but also to supervise and to balance his views where necessary. See Rashi (ad loc.) concerning the Talmud’s formulation “the charity directors [when collecting] are not permitted to separate from one another,” s.v. “lifrosh ze mize,” because of suspicion that one should not say he who collects by himself has intent to steal.
. In the tenth century Rabbi Meshulam b. R. Kalonymos granted the “heads of the community” the power of a court to expropriate money. Following him, Rabbi Gershom b. Judah, “the Luminary of the Exile” (10th-11th centuries, Germany) granted this power to the community leaders. See Teshuvot Geonim Kadmonim 125 [Hebrew]; Rabbi Gershom, Responsa, ed. Eidelberg (New York, 5716-1955), 67 [Hebrew]; Avraham Grossman, The Early Sages of Ashkenaz: Their Lives, Leadership and Works (900-1096) (Jerusalem: The Magnes Press, Hebrew University, 1981), 130 [Hebrew]; Menahem Elon, Jewish Law: History, Sources, Principles (Jerusalem: The Magnes Press, Hebrew University, 1992), 19 [Hebrew]; idem. “Authority and Power in the Jewish Community: A Chapter in Jewish Public Law,” Annual of the Institute for Research in Jewish Law (Shenaton Hamishpat Ha’ivri) 3-4 (1976-77): 13ff. [Hebrew]; Y. Blidstein, “Medieval Public Law-Sources and Concepts,” Diné Israel 9 (1978-1980): 128ff. [Hebrew] Although the comparison of the authority of the community leader to the court is based upon the institution called “lay courts,” nevertheless, this assertion would obligate the community leaders with higher than usual moral norms. It was not for naught that the author of theTerumat haDeshen and the Rama determined that in many areas, the authority of the community leaders or the optimates was comparable to the authority of judges, and thus one should demand similar standards as judges. See Terumat haDeshen, Pesakim Uketavim 214; Rama, Shulhan Aruch, Hoshen Mishpat, 37:22; Nahum Rakover, supra note 17, p. 96.
. Rabbi Isaac b. Moses (12th-13th centuries, Vienna) Or Zaruah, I, Hilchot Zedakah 2.
. Rabbi Mordechai b. Hillel, a descendent of the Ra’aviyah (R. Eliezer b. Yoel HaLevi), was one of the great Rabbis of Germany (Ashkenaz) at the end of the Tosafot period. Born circa 1240, Rabbi Mordechai was martyred in 1298 with his wife (daughter of R. Yechiel of Paris) with their five children in Nurenberg, Germany. His commentary, known as The Mordechai is found on most of the tractates of the Talmud.
. One should note the significance of the religious facet and deep halachic obligation of one who deals with public funds, according to the views of the adjudicators. See for example Pesahim 49b; Tur, Yoreh De’ah 249; Rabbi Samuel Halevi Wozner (20th century, Israel) in his volume of responsa, Shevet Halevi, II, 126, s.v. “beramah”; R. Moses Feinstein (20th century, U.S.) in his volume of responsa, Iggerot Moshe, Yoreh De’ah, I, 149, s.v. “vehineh heicha”; R. Eliezer Judah Waldenberg (20th century, Israel) in his volume of responsa, Tzitz Eliezer, III, 29, and the sources cited. Concerning the definition of “his wisdom” (hochmato) regarding a communal leader, see Beit Yosef, Yoreh De’ah, 248:7, s.v. “umah shekatuv pahot.”
. Maimonides, Mishneh Torah, Hilchot Tefilah Unesi’at Kapayim, 11:19. See also his Commentary to Mishna Bechorot 4:4.
. Rashba, Responsa Harashba, I, 617.
. Shulhan Aruch, Yoreh De’ah, 257:2.
. Bet Yosef, Yoreh De’ah, 257:2, s.v. “vehata’am.”
. Indeed, there is the impression that the charity directors-those that turn to community members and cajole and pressure them to open their wallets-despite the importance of their task derived neither the benefits nor the prestige that community leaders enjoyed.
. See Nahum Rakover, supra note 17, 89 ff; Aviad Hacohen, “Kishurim Velo Kesharim,” Daf Parshat Shavua (Misrad HaMishpatim, Hamahlaka Lemishpat Ivri) Ki-Tisa, 5761 (2001), #18. [Hebrew]
. Rabbi Haim Halberstam (19th century, Galicia), Responsa Divrei Haim, Hoshen Mishpat 25.
. Rabbi Aharon Walkin (1863-1942, Lithuania), Responsa Zekan Aharon, II, 130.
. See for example the regulations of Medinat Mahrein, Va’ad Budspitz, 1835: “We have also seen many such expenditures…that some city leaders assemble together in…or [somewhere] similar to this, making unnecessary expenditures and adding them to the city’s accounts.” [Hebrew]
. Rama, Shulhan Aruch, Yoreh De’ah 257, 2; R. Yeshua Simeon Haim Obadiah (Morocco, 19th-20th centuries), Responsa Yismach Levav,Hoshen Mishpat 8, s.v. “umidivrei harosh”; Rabbi Eliezer Judah Waldenberg (1915-2006, Jerusalem), Responsa Tzitz Eliezer, III, 29, chapter 3, s.v. (1) “barur.” However, guardians and other modern public trustees and officials are not appointed by their own authority and power, but in most cases, their election is confirmed by professional dictates and considerations and by the authority and power held by the system’s internal bodies. For the most part, unusual high moral standards are not one of the essential requirements in the process of appointing bureaucrats and public officials.
. See for example Rabbi Samuel b. R. Ezekiel Landau (19th century, Prague), Responsa Shivat Zion 99, s.v. “ahuvi”: “My opinion is that one should not compare our community charity directors to public trustees who collect taxes….” Rabbi Joseph Haim b. Elijah Al-Hackam (19th century, Baghdad), Responsa Rav Pe’alim, IV, Yoreh De’ah 26, s.v. “mihu”; Rabbi Shalom Mordechai Hacohen Schwadran (19th century, Poland), Responsa MaharSham, IV, 42, s.v. “umah shekatuv.”
. For example, see the regulations of Candia 120, from which one can deduce that the scribe had to administer four books that included an exact record of communal income and expenditures and of the charity fund. See J. Meisl, ed., Pinkas Medinot Lita, Va’ad 1761 (39); Protokollbuch der Jüdischen Gemeinde Berlin (1723-1854) (Jerusalem: Rubin Mass, 1962), 47, 3. [Hebrew]
. See Rabbi Haim b. Isaac, Or Zaruah (13th century, Germany), Responsa Maharach Or Zaruah 65; Rabbi Elijah b. Haim (16th century, Turkey),Responsa Mayim Amukim, II, 59, s.v. “tehilat”; Responsa Ribash 214; Taz, Yoreh De’ah, 258:5; Rabbi Yom Tov b. Moses Zahalon (16th-17th centuries, Safed), Responsa Maharitatz Hahadashot 85, s.v. “omnan”; Pinkas Medinat Lita; Takanot Medinat Mehrin Pinkas Hackesheirim Shel Kehilat Pozna (1621-1835) A 607, 409; D. Carpi, ed., Minutes Book of the Council of the “Italian” Jewish Community of Venice 1644-1711(Jerusalem: Ben-Zvi Institute for the Study of Jewish Communities in the East, Yad Yitzhak Ben-Zvi and the Hebrew University of Jerusalem, 2003), 7, 1644-Pinkas Va’ad Dekehilah Kedosha Italyani Bivenetzia 7 5644, 92 [Hebrew]; ibid. 5657 (1997); Y. Boksenboim, ed., Minutes Book of the Jewish Community of Verona, II. 1584-1600 (Tel-Aviv: Tel-Aviv University, 1989), 889-Pinkas Kehilat Verona, 2, 5649 (1889) [Hebrew]; 289-Pinkas Kehilat Berlin 239. For organized procedures on keeping financial records in the (Jewish) communities of Christian Spain, see for example Isaac Baer, supra note 51, 302; Baer mentions many times the presence of accountants in the Jewish communities of Christian Spain, as well as additional procedures that reflect the importance of transparency in these communities. See also S. W. Baron, The Jewish Community (London: Greenwood Press, 1973); L. Finkelstein, Jewish Self-Government in the Middle Ages (New York: Feldheim, 1964). Piskei Din-Yerushalayim Dinei Mamanot Ubeirurei Yehadut, (Jerusalem: Weiss, 5755-1995), 3, 251 [Hebrew]: “Therefore, although the plaintiff’s financial reports concerning the monies that were received by the community’s funds until now are believable, but from this day onwards, there should be an audit of the community’s financial books by the beadles of the three synagogues. The monies that the community will receive shall be divided equally by the three synagogues.” See also Piskei Din Rabani’im (Jerusalem: Weiss, 5753-1993), I, 353, 360; II, 22. [Hebrew]
. Takanot Medinat Mehrin, Vaad Gaie, 5010 (1650), 88.
. Ibid. 83-84.
. Isaac Baer, supra note 51, 264 For further evidence of organized accounting in the kingdoms of Christian Spain before the Expulsion, see 302.
. See, for example, Responsa of the Geonim, ed. Harkavy (Berlin: Itzkowski, 1887), 178 [Hebrew]; Alfasi, Gittin, 52b; Maimonides, Mishneh Torah, Hilchot Nahalot 10:7. Concerning dismissal following negligent management, see, Maimonides, Mishneh Torah, Hilchot Sechirut 10, 17;Shulhan Aruch, Hoshen Mishpat, 106, 8; Pinkas Hacksheirim Shel Kehilat Pozna (5381-5595), 1, 269, 1674.
. See Joseph Rivlin, supra note 27, 223, fn. 148 and the notes there.
. Taz, Yoreh De’ah 258:5.
. Pinkas Medinat Lita; Takanot Va’ad, 5583-1623, Ordinance 37. [Hebrew] There is no written testimony that following the evidence any control or auditing mechanisms were taken to eliminate such phenomena. However, it is logical to assume that after the situation had been revealed, they began to relate seriously to the necessity for transparency, control, and auditing. See Yitzhak Peri (Freidman), Toldot Hayehudim Betransylvania Biyemei Habeinayim Hame’ucharim (Tel-Aviv: Tarbut, 1994), 313 [Hebrew]: “Some of the guardians in those days would embezzle from the orphans’ property or monies for their own personal use…. Due to such phenomena, the court was forced to put pressure on the guardians.”
. Responsa Rivash 324 advises to demand of the guardian appointed by a gentile court an accounting as required by the gentile court. Rabbi Solomon Schwadran, Responsa Maharsham, vol. 3, 374, s.v. “aval”; Rabbi Solomon b. Aaron ibn Denan (19th-20th centuries, Morocco), Asher Shlomo, 5; Rabbi Joshua Haim Obadiah (19th-20th centuries, Morocco), Yismach Levav, Hoshen Mishpat, 8; Pa’amonei Zahav, 290:63 [Hebrew];Shulhan Aruch, Hoshen Mishpat, 290:17; Rabbi Isaac Jacob Weiss (20th century, Poland, England, Israel) in his volume of responsa, Minhat Yitzhak, vol. 9, 112; Rabbi Saul Yisraeli (1909-1995, Russia, Israel), Mishpetei Shaul – Piskei Din Rabanai’im (Jerusalem: Eretz Hemda, 5757-1997), I, 360, II, 187. For further on the responsibility of the court regarding the activities of the guardian, see S. D. Goitein, A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Genizah (Berkeley, Los Angeles and London: University of California Press, 1967-1988), 3, 283ff.
* * *
DR. AMICHAI COHEN has completed his doctorate at Bar-Ilan University on Bar-Mitzra-The Abutter-in 2006. He is presently teaching and continuing his research in Hebrew law.