Parshas Mishpatim (5771)
This week’s Torah portion, Parshas Mishpatim, starts off with G-d commanding Moses: “V’eileh ha’mishpatim asher tasim lifneihem - and these are the ordinances that you shall place before them [the Jewish people].”
Rashi quotes the Talmud in Gittin 88b which explains the words “that you shall place before them” to mean that disputes should only be brought before them, i.e. before Jewish judges who will rule according to the laws of the Torah. For Jews to initially bring their disputes in front of non-Jewish courts constitutes a Chillul Hashem, a desecration of G-d’s Name, as it implies that their justice system is superior to that of the Torah.
Now to be sure, the laws forbidding taking disputes to the non-Jewish courts are very complex, and exceptions are made when one of the parties refuses to go to a Jewish court (called a Beis Din in Hebrew) and the only way to get money from him is through a non-Jewish court. [To learn more about litigation in secular courts, click on: http://www.jlaw.com/Articles/litigation_in_secular_courts1.html]
The main lesson that we are being taught here is that the Torah’s laws and justice system, seeing as they were developed by the “Judge of all Judges” Himself, are all we need in order to settle our disputes fairly and justly, without needing to turn elsewhere.
One significant difference between the Jewish and secular justice systems is the relative absence of lawyers in the Torah’s judicial process. [I say relative absence because today we do find the phenomenon of to’anim, or rabbinical lawyers, who will plead the case on your behalf in front of the Beis Din. However, these ‘lawyers’ are not an integral part of the Jewish court system. In fact, they are Halachically unnecessary and, at times, may even be undesirable.]
A woman and her little girl were visiting the grave of the little girl's grandmother. On their way through the cemetery back to the car, the little girl asked, "Mommy, do they ever bury two people in the same grave?" "Of course not, dear." replied the mother, "Why would you think that?" "The tombstone back there said 'Here lies a lawyer and an honest man.'"
The Mishnah in Ethics of our Fathers (1:8) states: Yehudah ben Tabbai says, “Do not act as a lawyer of the Dayanim (Rabbinic Judges)….”
Some commentators understand this teaching to be an admonition to the Dayanim on the Beis Din that they should act as judges, not as lawyers. The Chassid Yaavetz (as quoted in Artscroll’s ‘Pirkei Avos’ Treasury) explains this to mean that a person who is judging a case should not employ his powers of debate and persuasion to justify the litigant whose position instinctively seems to be correct. Rather, he should objectively weigh only the claims and counterclaims presented by the involved parties, and the testimony of bona fide witnesses.
Many other commentators take this Mishnah to mean that while it is certainly Halachically permissible for a person to act as a lawyer and to offer his friend advice on how to state his case, or even to actually represent him in front of a Beis Din, it is preferable to avoid doing so, if possible.
Rabbi Aaron Tendler points out in his article on Rabbinic Attorneys at Torah.org, that according to the Ra”v (Rabbi Ovadia MiBartenura), this applies even if the lawyer is convinced that the person asking for his advice is in the right, and he wishes to save him from the underhanded tactics being used by his opponent. The reason for this is, since the Beis Din will offer a verdict only after both sides have had the opportunity to present their cases, it should be assumed that the judges will do their job properly and reach the correct conclusion. [For more on the role of lawyers in Jewish courts, see Rabbi Tendler’s complete article at: http://www.torah.org/advanced/business-halacha/5757/vol1no38.html]
Another possible reason why the Mishnah discourages the use of lawyers in Jewish court is because of the high fees that are often charged for their services, as humorously illustrated in the following story:
A non-Jewish judge once approached the famous Chassidic Rebbe, Rabbi Avraham Yehoshua Heschel of Apt (1748–1825), with the following challenge: In our secular court system, someone who has a monetary claim against his neighbor brings the claim to the court, and the presiding judge sets a date for the case to be heard by the court. In the meantime, the judge can take the time to look into the case and prepare for the trial. The two parties then hire lawyers to represent them in court. At the trial, the lawyers defend their respective claims, and the court renders its decision. After the trial has ended, there is always the possibility of appealing the court’s decision to a higher court. However, in your Jewish court system, both parties come straight to the local Rabbi and present their claims, and the Rabbi almost always renders his decision on the spot. What kind of justice system is that? The Rebbe responded with a parable: A wolf was chasing after a lamb and finally overtook it. It was just about to devour the lamb when along came a lion and tore the lamb out of the wolf’s grip. The wolf said, “Hey, that’s my lamb! You can’t steal it from me!” So they both agreed to present their claims in front of the wise fox. The fox decided that they should split the lamb in half, giving the lion and the wolf equal pieces. They both agreed with the fox’s decision, and they asked the fox to split it for them fairly. The fox split the lamb in two, but then he realized that one side was bigger, so he bit off from that side to make it equal. He then realized that now the other side was bigger, so he bit off a little from that side. Before he knew it, there was no more lamb left! So it is with your court system – explained the Apter Rav to the judge. The judges and lawyers spend so much time preparing for the trial, and then the trial itself drags on forever, plus the case then gets appealed to a higher court, so that by the time the case is finished and all the lawyers and court fees get paid, there is no money left for the litigants! Our Jewish courts aim to decide cases in a timely fashion so that the parties involved will not lose out.
And here’s a classic ‘lawyer joke’ along similar lines …
A group of dinner guests were blaming all of America’s troubles on lawyers when a woman said, “They aren’t all so bad. Why, last year a lawyer gave me $1000.” “I don’t believe it,” the host responded. “It’s true, I swear it,” said the woman. “I had a complicated personal injury case and what with the lawyer’s fee, the cost of expert witnesses, the expense of the appeal and so on, my bill was $41,000. When the judgment only amounted to $40,000, my lawyer simply forgave the difference.”
Now don’t get me wrong, I am not suggesting that all lawyers are crooks who are looking to cheat you out of all your money. I really think that 99% of lawyers give the rest a bad name …
A lawyer was on vacation in a small farming town. While walking through the streets on a quiet Sunday morning, he came upon a large crowd gathered by the side of the road. Going by instinct, the lawyer figured that there was some sort of auto collision. He was eager to get to the injured parties but couldn't get near the car. Being a clever sort, he started shouting loudly, "Let me through! Let me through! I am the son of the victim." The crowd made way for him. Lying in front of the car was a donkey.
All kidding aside, today’s lawyers really do serve a constructive purpose in society – in fact, some of my best friends are lawyers - and there are many wonderful and fine attorneys who are motivated by the sincere desire to help people and who do important work for which they should be commended.
That said, I believe that society (and especially all the lawyers out there, Jewish and otherwise) would greatly benefit from learning more about the Torah’s amazing justice system (a great place to start is www.jlaw.com), a system that was created by G-d Himself and that has served the Jewish people well for over 3300 years.