Here comes the judge...

One of the most trenchant statements in Avot comes from Rabbi Yishmael ben Yose, who says (at Avot 4:9):

“The person who separates himself from litigation removes himself from enmity, robbery and false oaths; but the person who relishes a ruling—he’s a wicked puffed up idiot.”

There is much that can be said about this statement for many reasons, since disputes do arise between even the best of people and the Torah makes extensive provision for their resolution. Judges and lawyers may not always (or ever) be loved for what they do, but we must accept that they are necessary and that even the exemplary figure of Moses was obliged to demonstrate the skills of advocacy and judgment in his long tenure as leader of the Children of Israel.

In his commentary on Avot, Rabbenu Yonah is sensitive to the notion of litigation as a necessary evil when he points to an apparent contradiction between the words of the Written Torah and Oral Law. The Torah explicitly provides that judges be appointed and that they should judge in accordance with justice. How then can Rabbi Yishmael urge people not to judge? Rabbenu Yonah's answer is that the instruction to judge only applies when there is no-one else to do the judging but that, where there are others who are available to judge, it may be better to leave it to them since, by doing so, a person can escape the perils of falling into doubt as to which way the case before him should be judged, presumably running the risk that he will reach the wrong decision.

On the face of things this answer may seem a little weak, but it looks better if one considers an analogy with the field of medicine. Just as there is a mitzvah ("commandment") to judge, and also a prohibition against misjudging, so too there is a mitzvah to save a life but a prohibition against wounding or killing another person. A person who has never delivered a baby by Caesarean section or learned how to resuscitate someone who has stopped breathing may possibly be expected to step into the breach and have a go when no-one else is available to tackle these tasks. But that same person would be strongly advised not to do so when qualified medical assistance is on hand.

There is another way of looking at the apparent contradiction between Written and Oral Law. The Torah requires that there be judges and that they judge. However, the teaching in Rabbi Yishmael's mishnah is not saying the opposite at all: it is addressing the judge’s state of mind. He should not detach himself from judging. Rather, he should judge with detachment. This means objectivity in not taking a personal interest in the outcome. Once a judge becomes emotionally involved in the parties and the outcome of their dispute, he no longer stands above it and the danger of losing the necessary quality of dispassionate objectivity is great.

The words of the Mishnah give some support to this reading of its meaning, since it does not contrast the position of someone who judges with someone who does not judge; rather, it contrasts someone who judges with the right attitude, one of distancing and detaching himself from personal considerations that may engender enmity, robbery and false oaths, with someone whose attitude is frankly unsuitable for the discharge of onerous judicial responsibilities.