Mekhilta de Rabbi Ishmael, Kasfa (Mishpatim) 20

Centuries: 3rd CE

Languages: Hebrew

Category: Jewish

Literary Genre: Midrash

Reference: Kasfa (Mishpatim) 20

Title: Mekhilta de Rabbi Ishmael

Commentary:

Section C forbids a judge from admitting professional defenders in court. Professional defenders and accusers had important roles in Roman courts (see Riggsby, Roman Law, p. 115; Hidary, Rabbis and Classical Rhetoric, p. 222). In contrast, rabbinic literature portrays judges questioning witnesses in Israelite courts, without mention of defenders and prosecutors (for more on “adversarial and inquisitorial courts,” see Hidary, Rabbis and Classical Rhetoric, p. 217-221, specifically in a rabbinic context, p. 222-238). The Greek terms sanegor (from sunēgoros, meaning a defender) and qategor (from katēgoros, that denotes an accuser or prosecutor) rarely appear in tannaitic texts. Interestingly, with the exception of our midrash, which bans the presence of defenders, the two other tannaitic passages that include the word qategor (Tosefta Sotah 6:5 and Mishnah Avot 4:11) refer to the heavenly court. Additionally, Mishnah Avot 4:11, includes the word praqlit (from the Greek παράκλητος/paraklētos), as an “intercessor” or “advocate”; the few other tannaitic sources that incorporate this word discuss the relationship between Israel and God, but never an earthly Israelite court (see, for example, Tosefta Peah 4:21; Parah 1:1). The tendency to portray the heavenly court similarly to a Roman court became common in amoraic texts (see, for example, Jerusalem TalmudRosh Hashanah1:3, 57a-b). This pattern is noteworthy, given the absence of advocacy or prosecutorial positions in rabbinic descriptions of Jewish courts. As mentioned above, our passage explicitly rejects the use of defenders and links them with dishonesty, for unfair decisions are attributed to their presence, and as Richard Hidary remarks: “This midrash forbids a judge to appoint defense advocates because doing so would bias his judgment” (Rabbis and Classical Rhetoric, p. 223). The midrash then cites Exodus 22:8 to support this the exclusion of defenders: “In any case of disputed ownership involving ox, donkey, sheep, clothing, or any other loss, of which one party says, ‘This is mine,’ the case of both parties shall come before God” (v. 9 in NRSV). In this verse, and various others, the word God (Elohim) is interpreted as a reference to judges. The quotation from Exodus 22:8 is used to demonstrate that the Torah instructs litigants to approach judges directly, without professional accusers or defenders. It is important to consider this teaching in the context of Roman legal norms, for its prohibition of sunēgoros offers an alternative that dominant system. Furthermore, this source suggests that innocents may be convicted in Roman courts.