Showing posts with label legal terms. Show all posts
Showing posts with label legal terms. Show all posts

Saturday, February 24, 2007

medina

(I did a number of Purim related words last year - you can see them in the category "Purim". If you can think of any others to discuss, feel free to let me know in the comments or by email.)

The word medina מדינה appears in the book of Ester many times. According to Kutscher (Milim V'Toldotehen 20-21), in the Bible (Ester as well as Melachim, Yechezkel, Daniel, Ezra, Nechemia, Kohelet and Eicha) - medina, both in Hebrew and Aramaic, always (or almost always) means "province" or "district".

However, in Rabbinic Hebrew, Kutscher writes that the word usually means "city".

How did this change come about? In this article, Professor Charles Torrey writes that there is evidence of medina meaning "city" as far back as the 5th century BCE. He describes the difference in meaning as follows:

The regular Aramaic word for 'city' in both Western and Eastern dialects was medina. This was certainly true during the period of Persian rule in Western Asia and thereafter, whatever may have been the case at a still earlier date. There is no clear evidence that the word was ever used in any other meaning outside of the Hebrew territory. The borrowing by the Hebrews seems to have taken place in the way which is illustrated in countless other instances in the history of language, the new word being given a new meaning by the borrowers. Having a fixed term of their own, עיר, for 'city,' as well as the locally used קריה, they adopted the Aramaic מדינה (literally, 'place of government,' 'seat of jurisdiction') giving it the meaning 'province,' 'sphere of jurisdiction' (equally justified etymologically), for which they had no other term; this signification was very possibly suggested by an old native use in the sense 'capital city' of an administrative district, the same use which we find adopted by the Persians and employed in Egypt. Thenceforward the word meant 'province' in Hebrew-Jewish writings, until at some time in the early Christian period its use in this sense was crowded out by the regular and original native Aramaic use.


So according to this theory, the word medina originally meant "jurisdiction" (from din דין - law) in Aramaic, with the sense of "city", was borrowed by Hebrew to mean "province", and then as the Aramaic influence on Hebrew grew, came to mean "city" in Hebrew as well.

This helps us understand the midrash in Ester Rabba 1:1

כל מקום שנאמר שדה - הוא עיר. עיר - מדינה. מדינה - אפרכיה

"Whever you find (in the Bible) the word field (שדה) it implies "city" (עיר), wherever you find city (עיר) it implies a medina ("metropolis" according to the Maurice Simon translation or "capital" according to Jastrow), wherever you find metropolis (מדינה) it implies province (אפרכיה)."
For those people reading the midrash when it was written, there was a need to explain why the word medina in the book of Ester did not mean city, but rather province.

Arabic adopted the word medina as "city" from Aramaic, and Kutscher points out that this is where the Arabian city Medina gets its name. Stahl writes that this name was originally given to the city by the Jewish residents. This Philologos column also discusses the issue:

We thus know that whoever settled in Yathrib and gave it its non-Arabic name of “the Medina” or “the city” were originally Aramaic speakers from elsewhere. At first this was just a local usage employed by these immigrant Medinians for their town, just as New Yorkers, when talking among themselves, call New York “the city,” too. (If you come from Philadelphia, on the other hand, you call New York “New York,” just as other Arabians went on saying “Yathrib.”) This usage must then have spread to the Arabic-speaking population of Yathrib, which attached the Arabic definite article to make it “Al-Medina” (as Arabs call Medina to this day), a form then adopted by the Aramaic speakers when they eventually switched to Arabic themselves. And it is highly likely that these immigrants were Jews from Palestine or Babylonia, both Aramaic-speaking areas in the early centuries C.E., because we also know from Arab historians that, in Muhammad’s time, three large Jewish clans — the Banu-Nadir or “Sons of Nadir,” the Banu-Korayzeh and the Banu-Kainuka — dominated the city. In addition, there were in Medina two large non-Jewish clans, the Aws and the Khazraj, whose origins were in Yemen.


So we've seen medina meaning province and city. What about the modern meaning of "state"? Daniel Elazar writes:

There is no generic term for state in the Bible or the Talmud. The Hebrew term medinah, now used for state, appears in both; in the Bible it refers to an autonomous political jurisdiction (the equivalent of a Land in German or one of the fifty states of the United States), that is, a territory under a common din (law), whose identity is marked by having its own political institutions but not politically sovereign in the modern sense. In the Talmud, the term is used even more vaguely from a political perspective, as in medinat hayam, roughly translated as some distant jurisdiction. Only in modern times did medinah come to be used to describe a "sovereign state."
Both Kutscher and Torrey relate to the Greek translation of the word medina in their efforts to understand its meaning at the time. A common translation is "polis" - the Greek word for "city-state". Since the Greeks blurred the boundaries between cities and states, perhaps any translation of the Hebrew/ Aramaic medina would be similarly blurred.

In any case, modern Hebrew uses both medina and "polis" - we have mediniut מדיניות - for "policy", but politika פוליטיקה for "politics". And while medinai מדינאי and politikai פוליטיקאי - are basically synonyms, medinai - statesman sounds a bit more noble than politikai - politician.

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).




Thursday, February 15, 2007

acharei rabim l'hatot

In this week's parasha (Mishpatim) we find a verse (Shmot 23:2) with a familiar phrase:

לֹא-תִהְיֶה אַחֲרֵי-רַבִּים, לְרָעֹת; וְלֹא-תַעֲנֶה עַל-רִב, לִנְטֹת אַחֲרֵי רַבִּים--לְהַטֹּת.

The phrase acharei rabim l'hatot אַחֲרֵי רַבִּים--לְהַטֹּת is often translated as "follow the majority", and in addition to being the basis for a majority rule in a court, it also is used as an early basis for democratic rule.

This understanding of the phrase is based on Talmudic sources such as Chullin 11a and Bava Metzia 49b. Based on this, Kaplan's Living Torah translates the verse as follows:



"Do not follow the majority to do evil. Do not speak up in a trial to pervert justice. A case must be decided on the basis of the majority."


However, in his footnote, he provides two alternate translations:



"Do not speak up in a trial, leaning toward the majority to pervert justice" (Mekhilta, Rashbam, Abarbanel)

"Do not speak up in a trial to turn aside, following a majority to change someone else's decision" (Chizzkuni)


Other translations also follow this approach of acharei rabim l'hatot being a prohibition instead of an instruction:



"You shall neither side with the mighty to do wrong - you shall not not give perverse testimony in a dispute so as to pervert it in favor of the mighty - (verse 3) nor shall you show deference to a poor man in his dispute" (Sarna, JPS)

"You are not to go after many (people) to do evil. And you are not to testify in a quarrel so as to turn aside toward many - (and thus) turn away." (Fox)

"You shall not follow the many for evil, and you shall not bear witness in a dispute to go askew, to skew it in support of the many." (Alter)

"Do not be a follower of the majority for evil; and do not respond to a grievance by yielding to the majority to pervert [the law]" (Artscroll Stone Chumash)

Even Artscroll here is willing to reject the halachic obligation to follow the majority in order to present the plain meaning of the text. But they have a good precedent. Rashi does the same:



You shall not follow the majority for evil There are [halachic] interpretations for this verse given by the Sages of Israel, but the language of the verse does not fit its context according to them. From here they [the Sages] expounded that we may not decide unfavorably [for the defendant] by a majority created by one judge. They interpreted the end of the verse: אַחִרֵי רַבִּים לְהַטֹת, “after the majority to decide,” [to mean] that if those [judges] voting [that the defendant is] guilty outnumber those voting [that the defendant is] innocent by two, the verdict is to be decided unfavorably according to their [the majority’s] opinion.

...

I, however, say, [differing from the Rabbis and Onkelos] that it [the verse] should be according to its context. This is its interpretation:



You shall not follow the majority for evil If you see wicked people perverting justice, do not say, “Since they are many, I will follow them.”


and you shall not respond concerning a lawsuit to follow, etc. And if the litigant asks you about that [corrupted] judgment, do not answer him concerning the lawsuit with an answer that follows those many to pervert the judgment from its true ruling But tell the judgment as it is, and let the neck iron hang on the neck of the many. [I.e., let the many bear the punishment for their perversion of justice.]




Why is Rashi so compelled to reject the halachic approach? It would seem to be due to the teamim (the Biblical cantillation notes and accents). This site quotes Ibn Ezra as saying "that any interpretation of a verse that doesn’t agree with the Teamim should not be listened to."

Michael Pearlman, a great scholar of taamei hamikra, published a number of lessons explaining how understanding the teamim was very important to a proper understanding of the text. In his lesson on our verse, he shows that the halachic approach divides the second half of the verse into two sections:

וְלֹא-תַעֲנֶה עַל-רִב לִנְטֹת
אַחֲרֵי רַבִּים--לְהַטֹּת

each containing a separate imperative. But the teamim show that achraei rabim l'hatot is parenthetical to the earlier part of the verse. I don't have the text with the teamim (or a scanner handy to show Pearlman's work) but here is my rendition of his diagram:



Pearlman then goes on to quote Mendelssohn's Biur as saying that Rashi and the Rashbam's approach is based on the teamim.

One aspect of this discussion I find interesting, but haven't found anyone who talks about it, is the meaning of rabim. I think it's significant that Sarna translates "mighty", Fox and Alter use "many", and Artscroll and Kaplan use "majority". It changes the understanding of the entire verse - and perhaps knowing what the proper (earliest?) meaning of the word would provide the most authentic translation.

Tuesday, February 13, 2007

kategor

As we mentioned earlier, kategor קטגור is a Talmudic term for "accuser, prosecutor". It appears as the opposite of praklit in Avot 4:13, and as the opposite of sanegor in Rosh HaShana 26a. Its verbal form - "to accuse, denounce" is קטרג, and developed through metathesis. In modern Hebrew neither is widely used, and instead we find the term (both verb and noun) tovea תובע for "prosecute, prosecutor".

Klein's etymology is:


From Greek kategoros (= accuser; literally: "one who speaks against somebody before an assembly", from kata (= against), and the stem of agoreyein ( = to harangue, assert; literally: 'to speak in the assembly'), from agora (= assembly)
We saw other words related to agora in the post about sanegor; kata, meaning "down, against", appears in such English words as catapult, catastrophe and catalog.

If the word kategor seems to you like the English word "category" (and the modern Hebrew word קטגוריה kategoria) - it's no coincidence. According to the Online Etymology Dictionary's entry for "category":

Original sense of "accuse" weakened to "assert, name" by the time Aristotle applied kategoria to his 10 classes of things that can be named.
This site gives another possible path of development:

In ancient Greek "kategorein" is a concept of legal terminology and means the reading of a list of accusations performed in the process of charging someone.
Horowitz (pg 268) has a note about the word kategor:

This word is clipped or rather shortened in the common idiom (kara tagar) -קרא תגר which means "call the prosecutor".
I at first found this rather far-fetched. A slightly different form of tagar - tigra תגרה appears in Tehilim 39:11, and a related verb appears in Devarim 2:24, and these sources certainly wouldn't be influenced by the Greek kategor.

However, my sources tell me that there might be a connection between kategor and the development of the phrase kara tagar (if not the individual words.) If anyone knows about this - please post in the comments. Otherwise I'll update the post if I find anything.

Monday, February 12, 2007

sanegor

In the comments to yesterday's post, JFT asked:

So according to this Mishnah what is the difference between a praklit & a 'sanegor' which I believe is also a mishnaic word?
My response was:

From what I can tell, a praklit is more of a mediator, and a sanegor is like a defense attorney.


Well, we're going to be looking at legal terms in the next several posts, so we may as well start with sanegor סנגור. In Modern Hebrew, a sanegor is a defense attorney, and the סנגוריה הציבורית is the Public Defender's Office.

In Talmudic Hebrew, a sanegor is often shown as the opposite of a kategor קטגור - a prosecutor (we'll explore this term later).

Klein provides the following etymology:

Greek synegoros ( = advocate; literally: 'one who speaks for somebody before an assembly'), from syn ( = with, together with) and the stem of agoreyein (= to harangue, assert, literally: 'to speak in the assembly'), from agora (= assembly).


The Greek root syn appears in such words as synonym, synagogue, and synchronize - in which it means "together" or "same".

Agora is familiar from agoraphobia - "fear of open spaces" as well as allegory (literally "speak in the assembly").

In Israeli slang we find the noun sanjar סנג'ר - meaning something like errand boy or gofer, and the derivative verb סנג'ר - "to send someone to do menial errands". According to Rosenthal, this term derives from the English word "messenger". However, the Babylon site defines the verb סנג'ר as "to defend, plead for". I assume this is in error...

Sunday, February 11, 2007

praklit

In Modern Hebrew, a praklit פרקליט is an attorney - and the State Attorney's office is known as פרקליטות המדינה - Praklitut HaMedina.

However, in the Mishna, where it first appears, praklit means "advocate, intercessor", as in Avot 4:13 - העושה מצוה אחת, קנה לו פרקליט אחד - "Whoever does one mitzva, acquires a praklit for himself" and Sifra Metzora 3:3 - חטאת דומה לפרקליט שנכנס לרצות - "A sin offering is like a praklit that enters the (royal palace) to appease (the king)." It is also the translation by the Targum for the Hebrew melitz מליץ in Iyov 16:20.

The word derives from Greek, and Klein provides the following etymology:

Greek parakletos (= advocate), verbal adjective of parakatein (= to call to aid, summon, invite, console, exhort, encourage), from para ( = beside), and kalein ( = to call), which is cognate with Latin calare ( = to proclaim, call, shout).


Joel Hoffman in his book In the Beginning: A Short History of the Hebrew Language points out that Klein's entry has a typographical error, and writes that "the Greek verb "to call" from which the word ultimately derives is parakalein, not parakatein."

The word made its way into English as well as paraclete - meaning "comforter", and is found in Christian and Moslem tradition.