Chapter 1: Mishna 8: Part 1

Yehuda ben Tabai and Shimon ben Shatach received from them (Yehoshua ben Prachiah and Nitai HaArbeili). Yehuda ben Tabai says: Don't make your self like a "lawyer;" and when the litigants are standing before you, they should both be viewed as guilty; and when they depart from before you (after the verdict has been rendered) they should both be viewed as virtuous, when they have accepted the judgment.

(This and the following Mishna are giving instruction to judges, who are responsible for "mishpat" and "din". "Din" is more than what we would call in English "judgment" or even "justice." Din - as we have written in earlier shiurim - is having something conform to EXACTLY the way it is supposed to be. It implies an imperative, and ANY deviation would remove it from the classification of true "din." This is the underlying framework for these two Mishnayoth, which are teaching us how to ensure the integrity of the "din.")

One should not be like people who teach a litigant what he should say in order to win the case (in contrast to a litigant who simply says the straight truth). This is being directed to judges, warning them not to give any indication to the litigants what claim might win the case for them.

We have pointed out that the musar taught by Chazal was always in matters which were important fundamentals. Yehuda be Tabai saw that even a few inappropriate words can lead to a distortion of true justice. This behavior was a serious problem, where even great people fell in to this trap. (See Ketuboth 52b and 86a which recounts two cases where advice was given on how to utilize a legal loophole, something that is deemed inappropriate coming from a person in a position of judicial authority. Whether it is appropriate for a friend of one of the litigants -- that requires analysis of the commentaries on the above cited cases.)

"When the litigants are standing before you, they should both be viewed as guilty." It is possible for a judge to have a feeling that one of the litigants is a righteous person and the other is wicked, which could interfere with his ability to objectively judge the CASE, based on the claims and evidence. (He might look to justify the claims of the person he viewed as a righteous person, while being overly suspicious of the claims of his opponent.) He is therefore instructed to initially view both parties as guilty, ensuring that he will subject all claims to rigorous and critical scrutiny. We are not taught to view both parties as initially being righteous, for this (overly romantic view) would prevent the judge from going below the surface of the claims to root out the truth. But when he views each of them as guilty, he will be more likely to reach the underlying truth of the case.

"When they depart from before you (after the verdict has been rendered) they should both be viewed as virtuous, when they have accepted the judgment." Accepting the judgment is viewed as a special character trait, for most people aren't willing to accept their own guilt or deficiency. (See Shabbat 119a. The seeds of our culture of "victimization," where everything is someone else's fault, are not a modern invention...) When they wholeheartedly accept the judgment, this indicates a special level of righteousness.

There is an additional perspective on the contrast between the preliminary attitude viewing both litigants as being wicked, followed by viewing them both as being righteous. When two people are in an argument, even if one is in the right, there is shared destiny between them. The Gemara in Shavuoth (39b) teaches us that when the defendant gives a false oath, the plaintiff also bears an element of responsibility. This is extracted from the language of the verse (Shemoth 22:10) "An oath of G-d shall be between the two of them..." teaching that the oath affects both of them. (Rashi explains that the plaintiff is punished for not taking care to entrust his money to an honest person[!], leading to "chilul HaShem," a desecration of G-d's name through a false oath.) Litigation with a dishonest person indicates a certain deficiency even in the person who is in the right. So the Tanna teaches that during the litigation, the judge should view both of them as wrong.

But once they have accepted the judgment, they are both righteous. Accepting judgment after there was "machloketh," argument and dissension, can only exist if the people are basically righteous people, fulfilling the commandment "PURSUE righteousness" (Devarim 16:20). Initially, they were involved in dispute and dissension, which emanates from a negative source. (The parsha of Korach, with its accompanying commentaries teaches us how terribly destructive "machloketh" is.) But their mutual acceptance of the judgment shows that the initial dispute was really only due to their lack of clarity on what was right, to whom the money really belonged. A financial disagreement is different than a "machloketh." Once there was a judgment, their acceptance of that judgment shows that their fundamental drive is for righteousness. Therefore, they should both be viewed as righteous people who have accepted the judgment.

(Contrast this with the bitterness that frequently follows a hotly disputed legal battle, and the scars that are left between both parties afterwards. That's because court cases today are about "winning." The Torah view of a court case is the pursuit of truth. The loser should be as happy as the winner, for a Jew does not want to have money in his possession that does not honestly belong to him.)

The class is taught by Rabbi Shaya Karlinsky, Dean of Darche Noam Institutions, Yeshivat Darche Noam/Shapell's and Midreshet Rachel for Women.