Monday, February 19, 2007

orech din

When we discussed the terms for lawyers and advocates - praklit, sanegor, kategor - we saw that all of them derived from Greek. This is not a coincidence. Prof. Dov Frimer points out in this article, that unlike the American legal system which is an adversary system, "trial by combat", where lawyers are necessary, the traditional Jewish legal system was different. Here the judge or judges were required to ask the questions of the parties and witnesses - in both criminal and civil cases, and the power of the oath was significant enough to cause the litigants to speak the truth. There was simply no need for a lawyer, who would only act as an intermediary between the judges and the truth.

Frimer writes:

Moreover, in the absence of face to face confrontation, the Rabbis feared that there would be greater litigation and less compromise. The personal and emotional factors which are so often critical in preventing a case from coming to court or, if it does get to court, in bringing about a satisfactory compromise, will be lacking if not totally absent. This concern is exacerbated by the realization that the monies at stake do not belong to the attorneys themselves. The Talmud (Shevuot 31a) frankly expresses its attitude on this matter when it applied to lawyers the verse:

For he oppressed his father and robbed his brother and did that which is not good among his people. (Yechezkel 18:18)

Further evidence to the disdain the Rabbis had for lawyers and their tactics is brought by Frimer from Avot 1:8

יהודה בן טבאי אומר אל תעש עצמך כעורכי הדינים

This is commonly translated as: "(Judges), do not make yourselves like orkhei hadayanim - lawyers." The Rambam and others explain this as meaning "Do not teach the litigants what to say in order to win your case, as lawyers do". The modern Hebrew term orech din עורך דין - would seem to originate in this early mishna.

However, Kutscher does not accept this interpretation. First of all, he points out that the mishna says orchei hadayanim - not orchei hadinim. The identification of lawyers as "arrangers of din (the law case)" does not fit with hadayanim - "the judges".

Kutscher then brings a number of proofs from manuscripts that the original version of the mishna was actually archei hadayanim - ארכי הדיינים. The Greek arch / arkhi means "chief" and is found in such English words as archbishop, patriarch, and architect. A number of commentators on the Mishna (some with the version ארכי, some with ערכי ) explain the term to mean "the greatest of the judges". According to them, the mishna is teaching not to act like those judges who know the law so well they don't need to study it before a ruling.

Another proof that Kutscher brings is from Bereshit Rabba on Bereshit 19:1, where it says that Lot sat in the gates of Sdom, and the midrash says that on that day he was made a judge - ארכי דיינים. Interestingly, the midrash also includes such synonyms as archiiudex (arch + Latin judicem - judge) and archikrites (arch + Greek kritikos - judge, source of "critic".)

Why then, did some manuscripts of the mishna have the version עורכי הדיינים? Kutscher believes they were influenced by Iyov 13:18 -
הִנֵּה-נָא, עָרַכְתִּי מִשְׁפָּט - "See now, I have prepared a case". (A similar phrase is also found in Iyov 23:3). He believes that the transcribers at some point replaced the unfamiliar ארכי with the more familiar עורכי. (Additionally, in Talmudic Hebrew, din דין is much more popular than its synonym, mishpat משפט.)

Aviad Hacohen discusses Kutscher's theory in this article. By and large, he accepts the theory, although he points out that already by the times of the Amoraim, the term עורכי הדיינים had come to mean "lawyer", not judge.

In Masechet Ketubot (52a and 86a) we find examples of rabbis who gave advice to their relatives about how to get money according to the law, but later regretted it, because they were acting like orchei hadayanim.

Hacohen and Frimer both quote the gemara in Shabbat 139a:

אמר ר"א בן מלאי משום ר"ל מאי דכתיב (ישעיהו נט) כי כפיכם נגואלו בדם ואצבעותיכם בעון שפתותיכם דברו שקר לשונכם עולה תהגה כי כפיכם נגואלו בדם אלו הדיינין ואצבעותיכם בעון אלו סופרי הדיינין שפתותיכם דברו שקר אלו עורכי הדיינין לשונכם עולה תהגה אלו בעלי דינין

Frimer explains and translates:

Secondly, there exists in Jewish law a deep-seated suspicion that lawyers are somewhat less than totally honest, truthful and forthright. For example, we find the prophet Isaiah chastising the Jewish people in the Diaspora saying:

"For your hands are defiled with blood, and your fingers with iniquity; your lips have spoken lies, your tongue muttereth wickedness (Yishaya 59:3)"

According to the Talmud, the Third Century C.E. rabbinic scholar, Rabbi Simeon ben Lakish, interpreted this verse homeletically as applicable to a corrupt legal system:

"For your-hands are defiled with blood," - these are the judges;
"and your fingers with iniquity" this refers to the judges' scribes;
"Your lips have spoken lies" - these are the legal counselors;
"Your tongue muttereth wickedness" - these are the litigants.

Hacohen points out that from this gemara we can see that the phrase orchei hadayanim עורכי הדיינים cannot be referring to (the greatest of) judges, for they are third in the hierarchy - just where lawyers should be.

Hacohen writes that the famous piyut read on Rosh HaShana - לאל עורך דין - L'El Orech Din - is referring to God as the greatest of judges, not a lawyer. However, later commentaries, unfamiliar with the original meaning of the word, describe God as an advocate, defending the Jewish people on their day of judgment.

When do we first see orech din for lawyer (and not orech hadayanim)? According to the Hebrew Wikipedia article, it was in 1872:

"ויינתן לו הרשיון (דופלום) להיות עורך דין (אדווקאט)" (אהרון יהודה ליב הורוויץ, תולדות בנימין פרנקלין פיצצאטי, ירחון "הכרמל", תשרי תרל"ב).

No comments: