Avot in M. Nezikim

M.B. Lerner, "The Tractate Avot," Literature of the Sages: First Part, ed. Shmuel Safrai (Philadelphia: Fortress, 1987) 273.

In the Mishnah, the tractate Avot ("fathers") appears in the division Nezikin ("damages"). Avot concerns such issues as oral Torah, ethics, and theology. Why's it in Nezikin, which relates to damages? According to Maimonides, Avot is a moral and spiritual guide for magistrates. In Lerner's words, "Just as a magistrate is in need of a proper code of laws, so too is he in need of a manual of general ethical principles and teaching, and prudent counsel in judicial matters."

This is a profound statement. Judges are not just magistrates, but they operate within an ethical and a theological framework.

Some believe that a judge should not just interpret the law, but should also enforce justice and righteousness. Those are the sorts of judges Barack Obama says he'll appoint: the ones who take the underdog into consideration. Would the compilers/authors of Avot agree? Perhaps. Or maybe they wouldn't have seen a contradiction between the law and justice. They simply wanted the magistrates to appreciate the just foundation of the law.