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The Rabbis—Preventive Law Lawyers*
Published online by Cambridge University Press: 12 February 2016
Extract
There is a growing interest in observing the work of lawyers in active practice. There are similarities and differences among lawyers. Broadly stated we may classify lawyering functions into two categories, practice of litigation law and preventive law. Usually it can be said that lawyers who represent disputing parties are involved in litigation practice. Such a dispute situation arises out of some past events. The clients of the preventive law lawyer come to him for advice, guidance, or counsel before the client engages in a course of action. The client often wants to know how best to conduct his affairs within the legal structure so as to minimize the risk of later trouble and so as to maximize his legal rights.
Also, observations have led to inquiry regarding the nature of the lawyering functions. Lawyers exist and practice in different countries under different social, cultural, economic and legal structures. Yet often the clients have similar desires. Disputes arise between people, and the disputing parties seek the help of lawyers to represent them in the litigating process. Also, though less publicized, clients seek the help of legal advisers before engaging in commercial ventures. For a number of academic and practical reasons, the roles and functions of lawyers and legal advisers in different societies could be compared and analyzed.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973
References
1 The Annual Report of the American Bar Foundation (1970–71) states: “Among the subjects being considered for possible future work are studies of what lawyers in fact do and how they do it…” (p. 10).
2 Brown, , “Preventive Law/Curative Law” (1965) 40 J. St. Bar Calif. 258Google Scholar; Brown, , “A Comparison of Litigation and Preventive Law Practices: Setting Fees in Advance” (1968) 43 J. St. Bar Calif. 107.Google Scholar
3 Probert, and Brown, , “Theories and Practices in the Legal Profession” (1966–1967) 29 U. of Fla. L. R. 447.Google Scholar
4 Wigmore, A.Kaleidoscope of Justice, Containing Authentic Accounts of Trial Scenes from All Times and Climes (1941).Google ScholarBedford, , A Traveller's Report (1961)Google Scholar gives a journalist's account of trials in five countries: England, Germany, Switzerland, Austria and France.
5 Brown, , “Comparative Lawyering: A Proposal for the Study of the Functions of Lawyers in Different Jurisdictions” (1971) 23 Revue Hellénique de Droit International 1Google Scholar (reprinted in (1971) 6 Docket Call, no. 4, p. 1).
6 There are few books in English that discuss the nature and content of the rabbinic responsa literature. One that does is Freehof's, Solomon B.The Responsa Literature (Philadelphia, Jewish Publication Society of America, 1955).Google Scholar See also, Lauterbach, Jacob, “She'elot u Teshubot” The Jewish Encyclopedia, vol. XI (New York and London, Funk and Wagnalls, 1907) 240–250.Google Scholar The newer Encyclopaedia Judaica (Jerusalem, Keter, 1971) gives some additional material which may also be consulted; for instance the article ‘Responsa” by Israel M. Ta-Shma and Shlomo Tal, vol. XIV, cols. 83–95. Henceforth, The Jewish Encyclopedia will be indicated simply as the J.E., and the Encyclopaedia Judaica as E.J.
7 On the matter of the particular legal-moral context in which Rabbis propounded their legal advice, whether before or after an enterprise, see Silberg, “Law and Morals in Jewish Jurisprudence” (1961) 75 Harv. L.R. 306 at 307.CrossRefGoogle Scholar
8 See Horowitz, George, The Spirit of Jewish Law (New York, Central Book Company, 1953).Google Scholar
9 The J.E. and E.J., of course, have articles on all these various items. See especially Ginzburg, Louis, “Law, Codification of” J.E. vol. VII, pp. 635–647Google Scholar and Elon, M., “Codification of Law” E.J. vol. V, cols. 628–656.Google Scholar Aside from the various journal and encyclopedia articles, there are very few works in English that describe and characterize the various types of rabbinic legal literature. Most of the books on the subject of Jewish law are either very popular, assume the reader has a sound general acquaintance with some rather complex and exotic historical periods, or deal with highly technical matters. Horowitz's book, see supra n. 8, is a notable exception.
10 There is no scholarly work on the history and character of the rabbinate as such. The encyclopedias do, of course, have articles on “Rabbi”, q.v. Rabbis were jurists, professors of law, and judges, but they were not what might be called attorneys-at-law. The rabbinate has never constituted a professional body of attorneys-at-law. The attorney-at-law, as he is known in Anglo-American law, is unknown in the Jewish system. Attorneys-in-fact are known although they operated with certain restrictions. Such attorneys-in-fact served on behalf of their principals in specific sorts of cases. Defendants, in some instances, might have the benefit of pleaders to present their cases before a rabbinic court. Such pleaders, even though paid a stated sum, are a far cry from a professional bar and pleaders are certainly not necessarily Rabbis. Indeed, to act as a pleader gratis was held by one authority to be especially praiseworthy. These pleaders appear as well to have been attorneys-in-fact, and not in any sense an identifiable, professionally-trained group. See Amram, D.W., “Attorney” J.E. vol. II, p. 293ff.Google Scholar; and Cohn, Haim, “Attorney” E.J. vol. III, cols. 837f.Google Scholar see also Shulhan Arukh, Hoshen Mishpat, 123:11; a plaintiff may give his power of attorney to one of his witnesses and that witness has to be paid a stipulated fee.
11 The Mishneh Torah or Yad Hazakah (The Strong Hand). The work is in fourteen volumes and has been amply commented upon during its 800-odd year existence. See J.E., Moses b. Maimon. Maimonides also wrote responsa and a standard commentary to the Mishneh. He is perhaps one of the greatest jurists who ever lived, but is almost never considered in such a way.
12 See Freehof, op. cit., p. 57.
13 See Elon, M., “Takkanot” and “Takkanot Ha-kahal” E.J. vol. XV, cols, 712–737.Google Scholar
14 See Greenhut, Lazarus, “Yom Tov b. Moses Zahalon” J.E. vol. XII, p. 631Google Scholar; and Klein, Isaac, “Zahalon” E.J. vol. XVI, cols. 919f.Google Scholar
15 Responso of Yom Tov b. Moses Zahalon, (ed. Venice, , 1694) § 126.Google Scholar This responsum is written in the technical language of rabbinic jurists: a mixture of Hebrew and Aramaic, with many citations—often elliptical—from Talmud, other responso, etc.
I have prepared a precise translation of the text, insofar as I could, for a work on marine insurance in rabbinic law. That translation, with critical apparatus, would be too lengthy and detailed for the purpose of this present study. Therefore, a paraphrase seemed the best way to present Zahalon's case. Medieval rabbinic Hebrew does not translate smoothly into modern idiomatic English.
16 Jacob b. Asher, Spain, XIV century. He wrote the compendium Arba'a Turim (The Four Rows), a collection of rabbinic law based on the Talmud, and major succeeding legal works; the volumes cover only the portion of the Jewish law actually in practice at that time; e.g., laws dealing with such things as sacrificial worship are omitted. The work has four volumes. The volume called Yoreh Deah deals with various categories of ritual law, exclusive of festivals, holy days, the Sabbath, etc. Yoreh Deah includes the laws prohibiting the giving and receiving of interest among Jews. Jewish law did not look upon interest as an infraction of its ecclesiastical-canon law and an affront to religious sensibilities.
17 Isaac b. Sheshet Prefet, 1326–1408, Spain and Algeria. He was a legal authority of high repute.
18 Dembitz, Louis N., “Usury” J.E. vol. XII, p. 388ff.Google Scholar; and Cohn, Haim, “Usury” E.J. vol. XVI, cols. 27–33.Google Scholar Interest was of two types: “fixed” or “biblical” interest, which was completely proscribed and “indirect” or “rabbinical” interest which might be allowed in some specific instances.
19 Baruch b. Meir of Rothenburg, 1215–1293, Germany. He was a prolific writer, a jurist of the first rank, and a communal leader.
20 Mordecai b. Hillel, XIII century, Germany. He was a student of Meir of Rothenburg. R. Meir's case is found in Sefer Mordecai to T.B. Bava Mezia, Ch. 5, § 316.
21 Solomon b. Adret, 1235–1310, Spain. Adret was most highly esteemed by succeeding generations. He wrote numerous responsa and several legal commentaries. See his responsa, (ed. Hanau, 1610) § 686.
22 See Responsa of Joseph ibn Lev (Amsterdam, 1726) sec. 8, § 49, § 50. Ibn Lev served as Rabbi in Salonika and Constantinople, XVI century.
23 See Tur, Yoreh Leah, 174. This chapter gives the rules on a sale of real estate with a “buy-back” option.
24 Grannis v. Stevens (1916) 216 N.Y. 583, 111 NE 263, reh. den. 217 N.Y. 664, 112 NE 263. (Loan, then week later an employment agreement to employ the lender: held usurious. The lender did not render substantial service.) “A transaction (of this kind) … may be a mere device or subterfuge to conceal usury and may be assailed as and found to be such”. Humphrey v. McCauley (1891) 55 Ark. 143, 17 CW 713 where lender's services were in fact rendered but no adequate proof or finding of the value of services: (held usurious). Shirley v. Britt 152 C.A. 2d 666, 313 P 2d 875 (4th Dist. 1957) (where two contracts were made on the day: held usurious, substance prevails over form), but see Goldenzwig v. Shaddock 31 C.A. 2d, 88 P 2d 933 (held not usurious, where a jury found that same day agreements were independent).
25 “… the incidence of taxation depends upon the substance of a transaction”. Com. v. Court Holding Co. 234 M.S. 331, (1945). “A single transaction may not be broken up into various elements to avoid a tax”. Starr v. Com. (4 Cir. 1936) 82F. 2d 964, Heller v. Com. 147, F. 2d 376 (9 Cir. 1945), cert. den. 325 U.S. 868 (1945). Taxation in the United States (World Tax Series, Harvard Law School, 1963) 822–23.
26 Brown, , “Ethical Requirements” (1964) 39 Calif. St. Bar J. 913Google Scholar; Ownbey, , “The Positive Law Ethic” (1965) 38 So. Calif. L. Rev. 421.Google Scholar
27 As to tax rulings: Rev. Proc. 69–6 states that rulings will not be issued where the request for ruling presents “[a] matter involving alternative plans of proposed transactions or involving hypothetical situations”. Smith, , “Tax Rulings—Their Use and Abuse” (1970) So. Calif. Tax Inst. 663, 676Google Scholar, “A request for a ruling should not be submitted with alternative transactions”. Advisory opinions, when authorized are generally limited to precise constitutional law questions submitted by a legislative body or by the state's chief executive. Note: “Advisory Opinions on the Constitutionality of Statutes” (1956) 69 Harv. L.R. 1302. Likewise, in Ireland, advisory opinions are limited to constitutional questions of a proposed act. The process of adversary proceeding is maintained by requiring argument of court appointed counsel. Constitution of Ireland, Article 26.1 (1); 2 (I).
28 Cavers, , “Legal Education and Lawyer-Made Law” (1952) 54 W.Va. L. R. 177.Google Scholar
Brown, , “The Law Office—A Preventive Law Laboratory” (1956) 104 U. of Pa.L.R. 940.CrossRefGoogle ScholarBrown, , “Experimental Preventive Law Courses” (1956) 18 J. Leg. Ed. 212.Google ScholarRutter, , “Jurisprudence of Lawyers' Operations” (1961) 13 J. Leg. Ed. 301.Google Scholar
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