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The Role of the Lawyer in Jewish Law*

Published online by Cambridge University Press:  24 April 2015

Dov I. Frimer
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Extract

The lawyer in American law is an integral and essential part of the legal system. At the inception of this nation, the lawyer's role received official sanction by the Sixth Amendment to the Constitution, which guaranteed the right to assistance of counsel “in all criminal proceedings.”

In Jewish law, by contrast, we find no such guarantee regarding the right to counsel. On the contrary, the lawyer was a concession, forced upon the Jewish legal system by certain exigencies. At no time was the lawyer viewed as essential to the adjudicative process. If anything, the lawyer was formerly seen as an obstacle to ascertaining truth. Nonetheless, the personage of the lawyer has today become an accepted feature of the Jewish legal world.

As in other systems, the lawyer in Jewish law plays primarily two roles, that of advocate and that of legal consultant. In this essay, I will highlight the various aspects of these roles, analyzing the function filled by the legal profession within Jewish law.

Type
Articles
Information
Journal of Law and Religion , Volume 1 , Issue 2 , 1983 , pp. 297 - 305
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1983

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Footnotes

*

This article is based on a paper presented to the Conference on the Legal Profession in the Middle East, sponsored by Suny Law School, Buffalo, New York and Bar-Han University Faculty of Law, Ramat-Gan, Israel, on Monday, April 26, 1982.

References

1. Jewish law, in its equivalence to the Hebrew term “Halakha,” comprises all the normative rules of Judaism including the laws applicable between individuals and the precepts concerning the human and the divine. Traditional Jewish law is observed today (with minor variations) by Orthodox Ashkenazi and Sephardi Jews throughout the world. Departures from the “Halakha” by progressive Judaism, whether Conservative or Reform, are not called “Jewish law” even by those adopting them but are recognized as accommodations to changed social circumstances. Jewish law must be sharply distinguished from Israeli law. The legal system of the modern State of Israel has its roots primarily in the British common law tradition stemming back to the post-World War I period when Israel was a British mandate. Only in rigorously defined areas (e.g. marriage and divorce) will Israeli courts apply the relevant Jewish law to the case at bar. For a basic description of Jewish law, its sources and its different periods see: Elon, M., The Principles of Jewish Law 5–46 (1975)Google Scholarreprinted in 12 Encyclopedia Judaica 109–151 (1972)Google Scholar.

2. For an insightful analysis and comparison of the adversary system with the inquisitorial systems, see Taruffo, , The Lawyer's Role and the Models of Civil Process, 16 Is. L. Rev. 5 (1981)Google Scholar.

3. Maimonides, , Hilkhot Eydut 1:4, 3:1Google Scholar; Arukh, Shulhan, Hoshen Mispat (Hereafter Cited H.M.) 28:7–8Google Scholar.

4. Arukh, Shulhan, H.M. 75:1Google Scholar.

5. Id. 17:9. For a detailed analysis of this very intriguing aspect of law, see reprinted in Lipkin, , Arikhat Din B'mishpat Hatorah, 31 Sinai 265–80 (1952)Google Scholar translated 22 Torah Shebe'Al Peh 107, 123–139 (Hebrew, 1981)Google Scholar.

6. Ezekiel 23:7; Maimonides, , Hilkhot To'ein V'nit'an 16:19–10Google Scholar.

7. Leviticus 5:1; Arukh, Shulhan, H.M. 28:1Google Scholar.

8. Arukh, Shulhan, H.M. 17:3Google Scholar, 28:2 and commentaries ad. loc. It should be emphasized, however, that Jewish law has a rigorous rule against self-incrimination. See at length Kirschenbaum, A., Self-Incrimination in Jewish Law (1970)Google Scholar; Lamm, N., Faith and Doubt 270–289 (1971)Google Scholar; Enker, , Self-incrimination in Jewish law (A Review Essay), 4 Dine Israel cvii (1973)Google Scholar.

9. Arukh, Shulhan, H.M. 9:6–8Google Scholar.

10. Maimonides, , Hilkhot Sanhedrin 11:8Google Scholar; Hashulhan, Arukh, H.M. 18:10Google Scholar.

11. Arukh, Shulhan, H.M. 13:1Google Scholar.

12. See M. Sanhedrin 3:1.

13. Sanhedrin 23a.

14. Y. Sanhedrin 3:1 (21a). See Hagra, Be'ur, H.M. 13:1, note 3Google Scholar.

15. Rosh, Sanhedrin, Chap. 3 § 2.

16. Hebrew for judges. Used in particular for Jewish court judges.

17. Yosef, Beit, H.M. 124Google Scholar, citing Rabbi Solomon Ibn Abraham Adret.

18. Shebuoth 31a. See Mohresha, ad. loc.

19. Ezekiel 18:18.

20. Isaiah 59:3.

21. Shabbath 139a.

22. See Aboth De Rabbi Nathan, Version 1, Chap. 10; Version 2, Chap. 20 (ed. Schechter, 43); Ketubbot 52b, 85b-86b.

23. In Aboth De Rabbi Nathan, Version 2, id., this admonition is cited in the name of Rabbi Simeon ben Shetah.

24. Mishnah Aboth 1:8.

25. For a detailed history and analysis of the gradual development of the lawyer's role in Jewish law, see Rakover, N., The Jewish Law of Agency in Legal Proceedings 85–179, 310–65 (Hebrew, 1972)Google Scholar. See also Baltai Hadin Vesidreihem Aharei Hatimat Hatalmud 95–99 (Hebrew, 1924)Google Scholar; Conn, H., Attorney, The Principles of Jewish Law 573–74 (Elon, M. ed. 1975)Google Scholar, reprinted in 3 Encyclopedia Judaica 837–838 (1971)Google Scholar; Kirschenbaum, A., Representation in Litigation in Jewish Law 6 Dine Israel xxv (1975)Google Scholar. Schreiber, , Jewish Law and Decision Making: A Study Through Time, 391–393 (1979)Google Scholar.

26. These Jewish law rules of agency and assignment, which were utilized in the appointment of an attorney, have had an often overlooked impact on the origin of the legal profession in England. See Raninowitz, J., Jewish Law: It's Influence on the Development of Legal Institutions 270–72 (1956)Google Scholar.

27. Arukh, Shulhan, H.M. 14:1Google Scholar.

28. Rabbi Isaac Ben Sheshet Perfet Responsa Harivash, § 235.

29. Gideon V. Wainwright, 372 U.S. 335, 345 (1963).

30. Rules of Procedure in the Rabbinical Courts of Israel § 41–44 (1960)Google Scholar.

31. Id. at §51-52.

32. Id. at § 54.

33. Id. at § 57-58.

34. 5 Rabbi Ouadiah Hadaya Responsa Yaskil Avdi, Evan Ha'ezer § 63Google Scholar.

35. See, Mikel v. Scharf, 105 Misc. 2d 561, aff'd 445 N.Y.S.2d 690 (1981), where a rabbinical arbitration decision was vacated by the court on the grounds that inter alia the rabbinical panel denied one of the litigants the privilege of representation by an attorney.

36. See Cohen, , Ma'amad Orkhei-Hadin Behalakha, 22 Torah Shebe'Al Peh 64 (Hebrew, 1981)Google Scholar.

37. It should be noted that the divergence of views between American law and Jewish law, as to the role and function of legal representation, expresses itself with regard to various questions of professional ethics, including such questions as these: (a) To what extent is a lawyer permitted to prepare his client and witnesses before trial?; or (b) To what extent is a lawyer permitted to put forth claims about which there is concern regarding their veracity, correctness or accuracy? In both of these cases it would seem that the Jewish position is more restrictive than its American counterpart. These issues, however, are beyond the scope of this paper. For the Jewish law position on these matters, see Lipkin, supra note 5, at 5456 and 22 Torah Shebe'Al Peh 115–118 (1981)Google Scholar. See also Hashulhan, Arukh, H.M. 17:15Google Scholar.

38. See at length Lipkin, supra note 5, at 47-50 translated in 22 Torah Shebe'Al Peh 108–112Google Scholar; Lifshitz, M., “Oreikh Hadin-Ma'amado V'Tafkedo Lefi Hatalmud,” Yad Re'eim 224–227 (Hebrew, 1974)Google Scholar.

39. Cohen, supra note 36, at 69.

40. Rabbi Hagyim Ben Israel ben Veniste Knesset Hagedolah, H.M. (1660), § 17, “Haga'ot Hatur,” no. 19Google Scholar.

41. Id., Lifshitz, supra note 38 at 227.

42. Hashulhan, Arukh, H.M. 17:15Google Scholarcf. Passamaneck, Brown, The Rabbis-Preventive Law Lawyers, 8 Isr. L.R. 538 (1973)Google Scholar. See also 1954 decision of the Rabbinical High Court of Israel cited by Rabbi Hadaya, supra note 34, H. M., § 11, nos. 1-6.

43. Jewish law, of course, prohibits a lawyer from advising a client to illegally arrange his or her affairs. See 6 Rabbi Menashe Klein Responsa Mishneh Halakhot § 313.2Google Scholar. Jewish law also considers it unethical for a counselor to advise a client on how to circumvent and thereby frustrate laws which were designed to promote social benefit and the public good. See, Lifshitz, supra note 38, at 230.

44. See Lipkin, supra note 5, at 52-54, translation at 114-115; Lifshitz, supra note 38, at 227-230.

45. “He who passes by, and meddles with a strife not his own, is like one who takes a dog by his ear,” Proverbs 26:17Google Scholar.

46. Rashbam, Baua Batra 174b, s.v. “Eizehu.”

47. “… and that thou hide not thyself from thy own flesh,” Isaiah 58:7.

48. Basri, D., 1 Ethics of Business, Finance and Charity According to Jewish Law 440 (Hebrew, 1981)Google Scholar; (Rabbi) Cohen, supra note 36, at 74.

49. Rabbi David Cohn to Dov Frimer (April 24, 1982), see also 6 Rabbi Manashe Klein Responsa Mishneh Halakhot § 313.1Google Scholar.

50. Rabbi Solomon ben Sunon Duran Responsa Harashbah § 393.