A virtual conference sponsored by Canopy Forum of the Center for the Study of Law and Religion at Emory (CSLR) featuring scholars, experts and practitioners on the topic of religious arbitration. View the full video and browse all essays here.
“The Role of Lawyers in Rabbinic Arbitration”
Chaim Saiman1All views here are Saiman’s own and do not represent the policies or positions of the Beth Din of America.
Over the past two decades, law and religion disputes have assumed a predictable form. Law is cast by religious believers as the strong arm of the state with ambitions of imposing its secularizing ideology onto an ever-expanding range of human behavior. Religion, in turn, is caricatured as a rearguard institution that provides believers with a safe space to retreat when they cannot abide the worldly torrents. Media is primed to locate these fights within an established narrative about how law, religion, and politics are contested. The case of American-trained lawyers appearing before contemporary beth dins (rabbinical courts) offers a counter-example to this narrative, where legal and religious institutions are structured to work symbiotically.
Advocates in rabbinical courts
The Anglo-American tradition has long assumed that litigants should be represented by professional advocates. This institution, however, is generally foreign to classical Jewish law. Mishna Avot — often memorized by young schoolchildren — teaches that one “should not play the part of an advocate in court.” Likewise commenting on the injunction in Exodus 23:7, “you shall veer away from falsehoods,” the tannaitic Midrash warns the judge “not to place advocates beside him” but hear from litigants directly without intermediaries. The Talmud understands Ezekiel’s description of “one who did which is not good amongst his people” to refer to one who has the power of attorney to present another’s claims in court. Rashi’s standard commentary explains that while the parties themselves can be pushed towards settlement, advocates — who are assumed to lack the legal capacity to settle for less than the demanded amount — will press the claims indefinitely.
Classical rabbinic terminology has no term for a lawyer/advocate. The rabbinic canon relies on Greek loan words such as p’raklet, sanegor, and kategor — reflecting that these roles are foreign to Jewish law (223-24; 240-41). Richard Hidary has shown that terms for lawyers and their equivalents do not appear in Talmudic accounts of how earthly courts function. Instead, in the Talmudic view, angelic prosecutors and defense advocates are appointed for souls standing trial in the heavens, but those appearing before rabbinic tribunals down below function without the aid of professional advocacy (240-42).
Over time, the practice of rabbinical court advocacy developed and became woven into beth din proceedings. Yet the institution of advocacy in Jewish law remains under a cloud of suspicion and rarely receives the warm reception afforded to lawyering in the American courts. Rabbis regularly bemoaned what they often saw as the corrupt, partisan, and dishonest practices of courtroom advocates. These themes continue unabated in rabbinic and popular ultra-orthodox discourse of today.
Beth Din’s Embrace of Lawyers
American law generally places relatively few demands on arbitration panels. But one likely requirement is for the panel, or the beth din, to grant parties the opportunity to obtain representation by the legal counsel of their choosing. Kahan v. Rosner tells of a brother and sister locked in an inheritance dispute who entered an arbitration agreement to appear before a particular beth din that required any attorney to be “approved by the Rabbinical Court.” Kahan’s selected lawyer was refused by the beth din, while the beth din’s suggested counsel was subsequently refused by Kahan. Kahan was not represented during the beth din’s proceedings which were later challenged and vacated. A New York court held that since the right to counsel was non-waivable, the beth din’s refusal to approve Kahan’s chosen lawyer for no articulable reason violated his rights under New York law.
These secular legal requirements could easily be seen as conflicting with the traditional halakhic skepticism of advocates. This is especially true to the extent the state can insist (through refusing to confirm a non-conforming award) the beth din allow non-Jewish persons and/or those not versed in halakhah to represent clients in its proceedings. Further, a tribunal seeking to limit the impact of secular law would also seek to restrict both the lawyer’s role and perhaps the types of lawyers allowed in beth din. For example, because beth din proceedings are structured by Jewish law, it is hardly outlandish to assume that only persons that share the beth din’s theological axioms, or persons ordained as rabbis or Jewish law judges, would be permitted to appear. Likewise, a beth din seeking to limit secular law incursions could aim to prevent lawyers from presenting substantive legal arguments to the Jewish law tribunal.
Notably, however, these hardball tactics designed to heighten the conflict between the state and Jewish legal systems are not typically pursued. Rather than fight these requirements as violations of religious freedom or threats to the independence of Jewish law courts, most institutionalized beth dins simply absorb the requirement of counsel as part of the background legal regime and proceed accordingly.
The Beth Din of America (BDA), however, goes even further. Instead of keeping legal counsel at arms-length, this rabbinical court expressly permits parties to select any lawyer — including non-Jewish lawyers — from any jurisdiction as counsel. This approach is particularly notable because the BDA prohibits to’anim (unlicensed rabbinical courts advocates) from representing clients in its proceedings. This policy is grounded both in the traditional halakhic reticence towards representation and on account of the reputation the unlicensed to’anim profession has earned for raising outlandish claims and increasing the cost and acrimony of the proceedings. The net result is somewhat counterintuitive. In concert with American law, the BDA permits representation by secularly licensed lawyers, yet it uses its inherent halakhic power to bar advocates with ostensible Jewish law expertise from appearing before it.
Embracing American legal culture
Perhaps the most dramatic move in this arena is that the BDA not only invites lawyers into its bar but even onto its rabbinic “bench”. In commercial cases, the custom is to appoint at least one male Orthodox Jew to the panel who is also a secularly licensed attorney familiar with the practice area relevant to the case (163-166). In some instances, this individual is also qualified as a rabbinic judge under Jewish law, while in others, that expertise is provided by co-panelists. These moves go far beyond any requirements placed by secular arbitration law and work to draw the sensibilities of American law into the substantive deliberations of the beth din itself.
Day-to-day workings of the beth din reveal how the presence of lawyers is intended to do more than tick the box of legal compliance. As a dayyan hearing cases at the BDA, I have heard lawyers claim they want to “cross examine the other party” or that a certain document is “owed” in discovery. From the position of traditional halakhah, these demands ring hollow, as halakhic procedure is more akin to the civilian-inquisitorial model than the lawyer-driven process of the common law. It is primarily the court’s job to interrogate parties and witnesses (Deuteronomy 13:15), and to the extent parties maintain such rights they are clearly secondary. The same is true of documentary discovery, which is substantially narrower under Jewish law than per its American counterpart.
The presence of secular lawyers representing parties and sitting on the BDA’s bench invariably draws American legal assumptions into the discussions in ways that can influence the overall tenor of the proceedings. For example, the BDA permits — and sometimes even encourages — lawyers to submit briefs making American law arguments to the panel. These submissions do not compel the beth din to adopt American law or even to frame its decision in such terms. But they inevitably provide an external benchmark to assess the BDA’s halakhic analysis and may shape the range of considerations that are understood as relevant to the ultimate decision.
The motivations for allowing lawyers into the proceedings range from the purely instrumental to the idealistic. First, the desire to make the beth din’s rulings confirmable and enforceable through the civil courts requires, at minimum, adherence to the basic norms of American procedural justice. Beyond this baseline, however, receptivity to secular law serves as a market signaling device. By welcoming lawyers into its forum, the BDA intends to communicate to its potential client base that it resolves questions within a Jewish law framework while maintaining a sophisticated understanding of and commitment to the laws and norms of the secular legal system. ♦
Chaim Saiman holds a Chair in Jewish law at Villanova University’s Charles Widger Law School. He teaches Jewish law, contracts and insurance and sits as rabbinical court judge with the Beth Din of America. Chaim has served as an expert witness in insurance law and Jewish law in federal court and is the author of Halakhah: The Rabbinic Idea of Law.
Saiman, Chaim. “The Role of Lawyers in Rabbinic Arbitration.” Canopy Forum, May 20, 2022. https://canopyforum.org/2022/05/20/the-role-of-lawyers-in-rabbinic-arbitration/