day and daysman and dayment and king james version and Job 9:33 and coverdale and arbitrator and umpire

One of the first things a new theological student learns about the Greek of the New Testament is that there two major terms for "time." One, chronos, emphasizes the passage of time without any stress on the significance of events in the period; the other, kairos, stresses the special or revelatory significance of time. All life happens between chronos and kairos, so to speak. Or, to put it differently, chronos is one d... thing after another; kairos is one d.....significant event.

It struck me that our word "day" is a word that captures in its various definitions both of the biblical meanings of time. On the one hand is the "chronological" meaning of "day"-- "the time of sunlight," as the OED has it. On the other hand we know that "day" can signify a "great day" or an important day. The theological concept of the Judgment Day, picked up in English social history with the "Domesday Book" of the late 11th century, stresses this meaning. In addition, a "day" may be a person's time for receiving someone. "We found she was in town, and went on her 'day.'"

Day as Verb

But not content with this little discovery, I pressed ahead on "day" and discovered that it had a rich significance in law that has been lost to our day, and this usage relates to day as a verb. "To day" means "To appoint a day to anyone" or "to cite or summon for an appointed day," such as in the 15th century sentence, "he should be sente fore and dayed ernestly agayn, for to abyde such jugement."

But the second usage of "day" as a verb is "to submit (a matter) to, or decide by, arbitration." We know that the use of "day" in this manner was already obsolete when Samuel Johnson was compiling his dictionary in the 18th century, but an OED example from the 16th century is "They have him enforced when all their money was...spent, to have their matter dayed, and ended by arbitrement."

This use of "day" then spawned two nouns, "dayment" and "daysman." "Dayment" is simply defined as "arbitration," such as in the sentence "to spende all..that money and put it to dayment at last." A "daysman" is an "umpire or arbitrator; a mediator" in its archaic usage, according to the OED. From a 16th century legal source we have, "If neighbors were at variance, they ran not straight to law: Daysmen took up the matter, and cost them not a straw." Or, in another case, "They had some common arbitrators, or dayesmen, in every towne, that made a friendly composition between man and man."

More on Daysman

The sense from the quotation just given is that arbitration, or dayment, was not only a cheaper procedure than a court trial, but was the principal method to reconcile parties and deliver quicker justice than might be attainable through the King's Bench or Common Pleas or Exchequer. In his magisterial history of English law in the 16th century, Baker points to the popularity of arbitration at any stage of the legal proceedings in this period, even though the surviving records of arbitrations are much more scanty than purely judicial proceedings (Oxford History of the Laws of England, 333-34). Thus daysmen were important in that period, even though the word has long disappeared from our vocabulary.

Yet even though the word is no longer used, its 16th-17th century usage is preserved in a most unlikely place: the Book of Job in the King James translation of the Bible (1611). When Job is expressing his frustration with not being able to know how to approach God in his distress, he expresses a contrary to fact wish (Job 9:33) which the KJV translated as follows: "Neither is there any daysman betwixt us, that might lay his hand upon us both." It is interesting that the KJV translators were following the 1535 English translation of the Bible by Miles Coverdale, who rendered 9:33 as follows: "Nether is there eny dayes man to reprove both the partes, or to laye his honde betwixte us."

Thinking about Daysman

The leading commentator on the Book of Job, David Clines, comments on this passage that the author isn't specific as to whether what is in view is a person who has the power to make decisions or just to try to reconcile the parties (Job 1-20, p. 243). He actually translates the Hebrew word (Mochia) as "mediator," which seems to me precisely wrong. What is in view in Job 9:33-34 is an umpire-like figure who can "lay his hand upon us both." The phrase "lay his hand" only appears in the Hebrew Bible in one other place, which happens to be the most beloved Psalm of Job, Ps. 139 (verse 5). In that context the words "lay his hand upon" suggests the authority of God to make something happen in the Psalmist's life. In law the person who can make decisions by "laying his hand" on both parties is the arbitrator, not the mediator. A mediator in American law is a person who can get parties together and make suggestions (and even some warnings/threats), but s/he has no authority to force a decision on the parties. Thus, I think the KJV has it right after all--what Job is longing for is not simply a mediator, but an arbitrator, a daysman with all his power.

Conclusion--Recovering Daysman

Whenever you and your client have an arbitration, it is a big day. Lots of money and lots of people may be riding on the arbitral decision. Most arbitrations last only a day, though some are longer. Why not capture the vital and growing significance of arbitration to law by returning to the common law term of "dayment" and "daysman"? The arbitration is like the "day" of judgment; the arbitrator is the one ("man") who brings the judgment as a result of that day. Arbitrators as daysmen (and women) will capture something very important about the concept that is lost in the word "arbitrator"--that a very important judgment is being rendered "on this day" by the daysman.