Modern-day methods of dispute resolution, and the issues raised by the differences between litigation and arbitration, have ancient roots. As this article demonstrates, the fundamental philosophical questions we face every day in the dispute resolution field were also faced by rabbis and Hebrew sages nearly 2,000 years ago. The debates of these sages, and their opinions, are reflected today in our attitudes and laws about dispute resolution.
This article explores some biblical and Talmudic materials on dispute resolution, and compares them with our modern approach to methods of dispute resolution. Specifically, the article traces the treatment of Alternative Dispute Resolution (“ADR”) in these age-old texts into our treatment of ADR today, demonstrating that the philosophy of Talmudic times is firmly embedded in our jurisprudence today.
I. THE TORAH
The Bible (hereinafter referred to by its Hebrew name “Torah”) contains, of course, one of the earliest legal codes. Throughout much of the Torah, laws are prescribed and punishments are defined. Some of the laws prescribed are simple and — from today=s perspective — self-evident (e.g. the Ten Commandments); others are more arcane and obscure. The Torah contains laws that are both societal (what we think of as “criminal”) and laws that are private (what we think of as “tortious” and, in some cases, “commercial”).