Yehudah ben Tabai says: [When serving as a judge] do not act as a lawyer. And when the litigants stand before you consider them [both] as guilty, but when they are dismissed from you consider them [both] as innocent, provided they have accepted the verdict."
Ethics of the Fathers 1:8
At first glance, this teaching of Jewish ethics seems largely irrelevant. After all, it's addressed to judges, and how many of us are judges? Furthermore, the previous Mishna teaches us to "judge all people favorably," yet here the judge is told to see the litigants as guilty!
By going beneath the surface, we will discover that this Mishna is highly relevant to everyone, not just judges, and is consistent with other Jewish teachings.
First, we need to understand Yehudah ben Tabai's teaching in its historical context. His generation underwent horrific turmoil. The nadir was the massacre of the sages of the Great Sanhedrin and their subsequent replacement by the corrupt powers-that-be with people unlearned and/or unfaithful to Judaism.
Eventually the situation was corrected through the herculean efforts of one of the great women in Jewish history, Queen Shelomit, and her brother Shimon ben Shatach. Assessing the damage, Yehudah ben Tabai, the reinstated leader of the Sanhedrin, saw that the vacuum caused by the massacre of the land's greatest scholars had allowed corruption to creep into the very fabric of the judicial system, threatening the morale of the nation struggling to regain its footing.
A system is only as good as the people who use it. Even the best system can fail if not implemented with wisdom and integrity. Human affairs are rarely black and white. The job of a good judge is to sift the black and the white from the gray. If the judge is not highly attuned to the truth -- or worse, if he's corrupt -- justice will not be served, and society will break down. People feel cheated, the lawless become brazen, the innocent get swallowed up and the average citizen becomes cynical and jaded.
Yehudah ben Tabai saw a judicial system where judges were acting as lawyers. A lawyer is a paid manipulator, in a sense. Once he accepts the case, he's paid to win. This is unacceptable behavior for a judge who's ultimately an agent of God in the service of justice.
The truth is we don't have to assume the worst in these judges to understand the Mishna. According to Maimonides, the teaching here is addressed to a judge with good intentions who realizes that the litigant on the side of right may not win the case if he doesn't present the right argument. The judge might rationalize that it's acceptable to hint to such a litigant how to argue his case. Nevertheless, he should not. The integrity of the system must be preserved; the ends don't justify the means.
This, indeed, echoes a famous passage in the Torah:
You shall not pervert judgment, or show favor to any person1, and you shall not accept a bribe, for the bribe will blind the eyes of the wise and make just words crooked. Righteousness, righteousness shall you pursue, so that you will live and possess the Land that God your God gives you. (Deuteronomy 16:19-20)
Both the means and the ends must be righteous.
The repetition of "righteousness, righteousness" implies that righteousness must pervade the entire process. Both the means and the ends must be righteous. A judge cannot act as a lawyer even if he thinks that will help a just verdict be reached.
Yehudah ben Tabai knew that the spirit of this verse needed reinforcement. If the judges were known to act with utmost righteousness the people would regain faith in the system, regain hope in the future and feel life was worth living again.
THE JUDGE WITHIN
Perhaps the greatest relevance of this teaching is that in truth, each of us is a judge. We are continually called upon to pass judgment on situations that come up in our lives. Do we take that job? Pursue that relationship? Seek out change? Remain with the status quo? Do we accept money even though we're not absolutely sure it's completely honest?
Some -- perhaps many -- of these decisions are not necessarily so clear-cut. Compounding the dilemma, our decision-making apparatus may be less than perfect. Rabbi Eliyahu Dessler writes in his classic Michtav M'Eliyahu (Strive for Truth, in English, Vol. 1):
"If a scientist is going to carry out some very intricate and delicate experiments, and the gravest consequences attend on the slightest imprecision in his results, his first thought will be to ensure the accuracy of his instruments. Every human being is such a scientist. He is engaged in the most fateful series of experiments there can possibly be -- the experiment of living. He is in constant need of accurate judgment to decide what to do and what not to do. He has to choose his life-path and avoid the traps set for the unwary. But how is he to do all this unless he first checks his measuring scales?"
If part of our mind is improperly tilted toward a predisposed bias, we will not draw the correct conclusions.
The mind on which we rely is itself an extremely delicate instrument. If one part of it is out of balance or improperly tilted toward a predisposed bias, we will not draw the correct conclusions.
This is poignantly illustrated by a story in the Talmud:
Every Friday a worker would bring Rabbi Yishmael the son of Rabbi Yossi a basket full of fruit. On one occasion, however, he brought it to him on a Thursday.
"Why the change?" the rabbi asked.
"I have a court case and thought that at the same time I might bring the fruit to you."
The rabbi immediately rejected the gift and said, "I am disqualified to act as your judge."
Later, when he overheard the court proceedings for his worker the rabbi found himself thinking, "If he wished he could plead thus, or if he preferred he might plead thus." Then he caught himself and exclaimed, "Oh, the despair that waits for those who take bribes! If I, who have not taken [the fruit at all] -- and even if I had taken I would only have taken what is my own -- am in such [a state of mind], how much more would that be the state of those who accept bribes."
Rabbi Yishmael ben Rabbi Yossi was a saintly person of the highest order, as we can see from his refusal to accept the fruit -- his own fruit -- a day earlier than usual because of his concern with the possibility of bias. Yet he found himself turning over in his mind arguments which would help the man to win his case because of this extremely slight bias. If this applies to someone of his stature, how much more so must the slightest bribe disturb and deflect our most intimate thought processes!
Many of the important decisions in our lives come along with a subtle (and often not-so-subtle) bribe. Are we pursuing that job/career to please or impress others? Or are we doing it because it's our calling and/or it's an honest way to make a living without selling our souls in the process? Are we considering that relationship because the person is good-looking and/or wealthy? Or because they have substance? Are we taking this money possibly tinged with dishonesty after we sincerely researched the issue and determined it's completely honest? Or did we rationalize it away because, after all, everyone does it?
The Mishna states: "When the litigants stand before you, consider them [both] as guilty…"
When we have "litigants," -- i.e. two opposite choices before us -- "consider them both as guilty," i.e. be suspicious that your mind may be bribing/tilting you toward one side over the other. And if you accept the bribe, you may end up doing something that's not right for you: you may take the wrong job, enter into a destructive relationship, take money that's dishonest, etc. Therefore, reject all bribes, even the seemingly insignificant ones.
LIVING WITH OUR CHOICES
The Mishnah then concludes:
"When they [the litigants] are dismissed from you consider them [both] as innocent, provided they have accepted the verdict."
"When the litigants are dismissed," -- i.e. after you've made your choice - "consider them [both] as innocent," i.e. don't fret or ruminate over the choice not made. More people suffer emotional pain over past choices than the actual pain of those choices. Rid such ruminations from your mind.
How? "Provided they have accepted the verdict:" If you have been honest in the means by which you came to your decision -- if you have given both sides of the argument their just due -- and you have made your decision not based on impatience, weakness or acceptance of some subtle bribe, then accept the verdict, i.e. accept the fact that you have made the right choice. That's true even if it doesn't immediately look like the right choice. That's true even if the right choice you made has or creates problems. You will never know where the other choice might have led. It may very well have been fraught with more problems than the path chosen.
If you go through the process honestly, you should feel a sense of satisfaction. Not only do you accept the "verdict," but the "litigants" -- those opposing choices -- accepted it too. Even the side not chosen seems to cry out and say, "You have chosen well."
"There's no joy like the removal of doubts," the Sages teach. When you've been scrupulously honest with yourself and the decision-making process, all doubts are removed and you experience the most profound joy. That's the result of your absolute pursuit of righteousness, of making sure the process of coming to the decision was as straight as could be.
1. Judaism gives the concept of justice infinitely greater importance than did other ancient philosophies, which accepted the stratification of society. Although people are subject to inequalities in their nature and abilities, each individual has an equal worth before the court of law.