Playing at being lawyers -- or just being helpful?

Yehudah ben Tabbai (Avot 1:8) teaches a rule for dayanim, trial judges in Jewish courts, that at first seems superfluous. They must be above the dispute and not participate in it as if they were engaged as counsel:

אַל תַּֽעַשׂ עַצְמְךָ כְּעוֹרְכֵי הַדַּיָּנִין, וּכְשֶׁיִּהְיוּ בַּעֲלֵי הַדִּין עוֹמְדִים לְפָנֶֽיךָ, יִהְיוּ בְעֵינֶֽיךָ כִּרְשָׁעִים, וּכְשֶׁנִּפְטָרִים מִלְּפָנֶֽיךָ יִהְיוּ בְעֵינֶֽיךָ כְּזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין

[When sitting in judgement], do not act as a lawyer. When the litigants stand before you, consider them both guilty; and when they leave your courtroom, having accepted the judgement, regard them as equally righteous.

It is a matter of common knowledge that the job of judges is to hear disputes and judge them, while lawyers are engaged to help their clients by researching the relevant laws, collecting evidence, constructing favourable arguments, and then by putting the evidence and arguments before the judges in a manner that is most likely to be accepted by them.

The Torah makes it clear that the judge must be impartial and should not side with any party to a dispute. The dayanim are forbidden to let themselves be influenced by bribes or partisan considerations because they are charged with the responsibility of reaching a just decision (Devarim 16:18-20). The Vilna Gaon’s commentary on this mishnah goes further, supporting it with a verse from the prophets (כִּי כַפֵּיכֶם נְגֹאֲלוּ בַדָּם, וְאֶצְבְּעוֹתֵיכֶם בֶּעָוֺן; שִׂפְתוֹתֵיכֶם, דִּבְּרוּ-שֶׁקֶר--לְשׁוֹנְכֶם עַוְלָה תֶהְגֶּה, “For your hands are defiled with blood, and your fingers with iniquity; your lips have spoken lies, your tongue mutters wickedness”, Isaiah 59:3). According to Rashi (Shabbat 139a) this verse applies to judges teaching the litigants how to argue their cases.

Does all of this mean that dayanim may not intervene on behalf of a litigant? One might think so—but there is a contrary opinion too.

R’ Ovadyah Hedaya (Seh leBet Avot) cites a little-known work of halachah, the Shulchan haTahor of R. Yitzchak Ayzik Yehudah Yechiel Safrin of Komarno. This work, which seeks to reflect Jewish law as viewed in light of the mysticism of Chassidut and Kabbalah, postulates that a dayan may come to the rescue, as it were, of a litigant whose case has some merit but who is so flustered by the heat of the moment that he is incapable of expressing himself. This sort of intervention is mandated by the principle of petach picha le’ilem (“open your mouth for the one who is dumb”).

Clearly this principle has its limitations and cannot be invoked in order for a dayan to be dan lekaf zechut on behalf of one adversary against another. This is why Yehudah ben Tabbai adds that, before a bet din (Jewish court) gives its decision and the litigants accept it, a dayan must regard them both as being in the wrong.

For comments and discussion of this post on Facebook click here.

Playing the lawyer

In the wonderful world of Pirkei Avot, many if not most of the teachings—however clear they seem—can be understood in many different ways. For example, the first part of Yehudah ben Tabbai’s mishnah at Avot 1:8 looks like a bold assertion that one should avoid entering the legal profession. The Hebrew, אַל תַּֽעַשׂ עַצְמְךָ כְּעוֹרְכֵי הַדַּיָּנִין, means literally “Do not make yourself like a lawyer”. Some commentators are of the opinion that this means that no-one should advise litigants in a din Torah at all. Lawyers are superfluous; it is for the rabbis to establish the parameters of a dispute without external interference. Lawyers only get in the way.

Modern translations and commentaries on this teaching take a different approach, qualifying the literal meaning in order to frame it within a more specific context since, like much of the content of the first perek, it is addressed to judges. For example,

“[When serving as a judge] do not act as a lawyer” (Artscroll)

“When sitting in judgement, do not act as a counselor-at-law” (Chabad.org)

“[When sitting as a judge]. Do not act as an advocate” (Authorised Daily Prayer Book and Koren Pirkei Avot, per Rabbi Lord Sacks)

“Do not [as a judge] play the part of a counselor” (Birnbaum siddur)

This view is widely accepted today. As Rabbi S. R. Hirsch says:

“Should you be called upon to function as a judge, do not be like the legal advisers who offer to place their juridical knowledge at the service of the litigating parties”.

This is because judges need to be absolutely impartial, a point emphasised by Rabbi Marcus Lehmann.

But there is always a risk that the meaning of the mishnah will be influenced by the fact that we view it through modern eyes. Thus Rambam’s Perush Mishnayot comments on this mishnah:

עורכי הדיינין. הם אנשים שלומדים הטענות והדינין עד שיהיו בקיאים בני אדם בדיניהם

Rabbi Eliahu Touger’s translation renders this as:

“As a counsellor: [i.e. an advocate] who knows how to assert claims, who receives power of attorney to act on a person’s behalf in a dispute”.

This would appear to be more of a commentary than a translation, since it is difficult to find the words “who receives power of attorney to act on a person’s behalf” in Rambam’s words.

But not every rabbi holds that Yehudah ben Tabbai has litigation lawyers in mind when dispensing his advice. An outspoken proponent of that view is Rabbi Yaakov Hillel, Eternal Ethics From Sinai:

“Orche hadayanim, often mistakenly translated as “lawyers”, more correctly means “those who help the judges organize the legal data”.

He explains that, in the past, orche dayanim performed a recognised, legitimate function as court advisers. According to Rabbi Shlomo Zalman of Neustadt they were an early example of the mazkir bet din (“the court’s remembrancer”), who would arrange and explain the judges’ decision to the litigants. The mazkir bet din was also an adviser to the bet din, perhaps analogous to the court clerk in the United States. Neither a judge nor a lawyer for a disputant party should be tempted to play the part of a neutral, objective adviser to the court when he had a preference for one or other side of the action.

Rabbi Hillel also acknowledges that court procedures have changed since Mishnaic times:

“The orche hadayanim mentioned in the mishnah no longer function in today’s bate din. Modern times have produced a new phenomenon, that of the to’en Rabbani (rabbinical advocate). He has some knowledge of the relevant halachot and uses his professional expertise to win his client’s case in a bet din, much like a lawyer in a secular courtroom…”

In summary, I would suggest that this part of Avot 1:8 carries a message for our own time, whether it is addressed solely to judges or to lawyers in private practice: for the sake of justice and the avoidance of impropriety do not lend yourself towards support for either disputing party. Given the weight of support for the notion that a judge should not play the part of a lawyer, it seems harsh to describe “lawyer” as a mistranslation. The mishnah contains many messages and we should seek to learn something from each of them.

For comments and discussion of this post on Facebook, click here.

Here comes the judge...

One of the most trenchant statements in Avot comes from Rabbi Yishmael ben Yose, who says (at Avot 4:9):

“The person who separates himself from litigation removes himself from enmity, robbery and false oaths; but the person who relishes a ruling—he’s a wicked puffed up idiot.”

There is much that can be said about this statement for many reasons, since disputes do arise between even the best of people and the Torah makes extensive provision for their resolution. Judges and lawyers may not always (or ever) be loved for what they do, but we must accept that they are necessary and that even the exemplary figure of Moses was obliged to demonstrate the skills of advocacy and judgment in his long tenure as leader of the Children of Israel.

In his commentary on Avot, Rabbenu Yonah is sensitive to the notion of litigation as a necessary evil when he points to an apparent contradiction between the words of the Written Torah and Oral Law. The Torah explicitly provides that judges be appointed and that they should judge in accordance with justice. How then can Rabbi Yishmael urge people not to judge? Rabbenu Yonah's answer is that the instruction to judge only applies when there is no-one else to do the judging but that, where there are others who are available to judge, it may be better to leave it to them since, by doing so, a person can escape the perils of falling into doubt as to which way the case before him should be judged, presumably running the risk that he will reach the wrong decision.

On the face of things this answer may seem a little weak, but it looks better if one considers an analogy with the field of medicine. Just as there is a mitzvah ("commandment") to judge, and also a prohibition against misjudging, so too there is a mitzvah to save a life but a prohibition against wounding or killing another person. A person who has never delivered a baby by Caesarean section or learned how to resuscitate someone who has stopped breathing may possibly be expected to step into the breach and have a go when no-one else is available to tackle these tasks. But that same person would be strongly advised not to do so when qualified medical assistance is on hand.

There is another way of looking at the apparent contradiction between Written and Oral Law. The Torah requires that there be judges and that they judge. However, the teaching in Rabbi Yishmael's mishnah is not saying the opposite at all: it is addressing the judge’s state of mind. He should not detach himself from judging. Rather, he should judge with detachment. This means objectivity in not taking a personal interest in the outcome. Once a judge becomes emotionally involved in the parties and the outcome of their dispute, he no longer stands above it and the danger of losing the necessary quality of dispassionate objectivity is great.

The words of the Mishnah give some support to this reading of its meaning, since it does not contrast the position of someone who judges with someone who does not judge; rather, it contrasts someone who judges with the right attitude, one of distancing and detaching himself from personal considerations that may engender enmity, robbery and false oaths, with someone whose attitude is frankly unsuitable for the discharge of onerous judicial responsibilities.

Links in the chain of tradition: why "zakenim" and not "shofetim""?

In the course of a discussion on the Judaism Reclaimed Facebook page, one of the participants in the discussion (Nate Lite) asked a good question about the chain of tradition of the Oral Torah from the Giving of the Law at Mount Sinai and ending with the Men of the Great Assembly (Avot 1:1). The chain of tradition passes through Joshua to the Prophets via the zakenim (literally "elders"). These zakenim are understood to be the Judges. Nate Lite's question is this: if the chain of tradition passed through the Judges, why does Avot 1:1 refer to them as zakenim and not as shofetim (the normal word for "Judges" in this context)?

A possible answer might be that the term "shofetim" has a somewhat negative connotation. This is apparent from commentaries on the opening verse of the Book of Ruth ("In the days when the judges judged...). Zakenim has no such  negative connotation: the word is treated as a notarikon of the Hebrew words Zeh koneh chochmah ("this person has acquired wisdom").

Another possible answer is that the shofetim were not entirely an unbroken sequence, which might suggest a break in the chain of tradition.

Any other suggestions?