An Alternative Dispute Resolution (ADR) Provision from Antiquity and its Connection to the Passover Story
This evening Jews around the world will gather with their families to celebrate the holiday of Passover by holding a Seder. The Seder, which literally means the "order" is a symbolic meal ritual through which generations of Jews have shared with their families the communal historical memory of their ancestors' great liberation from slavery in Egypt some 3,500 years ago. Notwithstanding the numbers of individuals participating in Seder this year (some studies put the number at close to 70% of the Jewish community), few of those celebrants will realize that part of the traditional biblical exodus narrative contains a reference to what might very well be the first recorded mandatory arbitration provision in history.
The story of the Israelites' emancipation and travel through the desert forms the core of both the biblical book of Exodus and the traditional Seder text, the Hagada, literally, the “telling.” Although both accounts follow the same story line, there are quite a few differences. The Hagada, which contains the shorter version, explicitly recognizes that it does not capture the full event and advises, "all who expand [and speak of additional aspects of the liberation story] are to be praised."
One striking difference between the two texts is the almost complete absence of Moses in the Hagada, in stark contrast to his ubiquitous presence in the book of Exodus. Another significant personage who does not appear in the Hagada is Jethro. Although Jethro appears twice in Exodus, he is not mentioned in the Hagada. Each time Jethro appears in the Bible he is seen giving advice. The first time he appears, the Bible describes how Jethro advised his daughters to invite Moses over to "break bread," which led to the marriage of Moses and Ziporah. In his second appearance we read about how Jethro provided Moses with unsolicited advice regarding Moses' dispute resolution responsibilities. Jethro arrives at the Israelite encampment and observes that Moses is overwhelmed with judicial responsibilities. In response, Jethro advises Moses to create a more efficient judiciary by instituting a system of lower courts and appointing judges to staff them. Moses listens and appoints the judges.
Following Moses’s establishment of the judiciary, the Bible continues with the Ten Commandments narrative, which is immediately followed by a fairly extensive section detailing various civil, criminal and other black letter law provisions, namely the additional legal instructions that Moses received during his 40 days on Mount Sinai. This "black letter law" section is introduced by an instruction, "[a]nd these are the judgements (Mishpatim) that you shall place before them."(Exodus 21:1). The precise meaning of this instruction is unclear. The word Mishpatim is the plural form of the word Mishpat, which has multiple meanings, including "judgment, ruling and case," each of which derives from the Hebrew root "Shin, Peh, Tet," or Shofet, a judge. Additionally, who exactly is the pronoun "them" referring to?
The simplest understanding of the charge "you shall place before them" appears to be an instruction to the audience to present all future questions of law or legal disputes in front of some known individuals who have previously been charged with dispute resolution; that is before those same judges who had previously been appointed by Moses upon Jethro's advice. Although other interpretations of the "place before them" charge have been proposed. (See, e.g., Yisroel I.Z. Herczeg, The Torah /With Rashi's Commentary Translated, Annotated, and Elucidated, Volume 2, 248 (4th Ed. 2002) (understanding the charge as instructing Moses to present the law clearly and in detail, "like a table that is set and prepared to be eaten”), the historical consensus of Jewish legal authority, since at least the second century, has been that the biblical "place before them" text presents a communal mandatory arbitration provision requiring all Jews to present their legal disputes to a panel of rabbinic judges and prohibiting the initiation of legal proceedings in a secular court ab initio. (See, e.g., Yisroel S. Schorr, Ed., The Gemara: The Classic Vilna Edition, Tractate Gittin 88(b)3 (Travel Ed. 2008) ("From this verse we derive that judicial proceedings are valid only when conducted ...'before them'").
In contrast to the large numbers of Jews worldwide who will participate in a Seder tonight, a much smaller segment of the world Jewish community considers this ADR provision as religiously binding, or, at a minimum, relevant to their decision making process when approaching dispute resolution options. Those Jewish individuals who do maintain fealty to the ancient "place before them" mandatory arbitration provision try to resolve their disputes before arbitration panels comprised of rabbinically trained arbitrators. These panels are each known individually as a Beit Din, or collectively as Batei Din, "house" or "houses of judgement," respectively.
I plan to write another blogpost to discuss a number of challenges that arise because of the existence of the Beit Din alternative, including issues of forum shopping, of women who are unable to obtain religious divorces, and generally of individuals who attempt to game the dual system in ways that are obstructive of justice. Additionally, there are some interesting implications that arise with respect to drafting dispute resolution clauses in contracts, which I will address as well. I welcome any suggestions as to any other sub-topics that you would like me to attempt to address at that time.