Rabbi Yishmael ben Yose has some strong opinions about judges and judging. After effectively accusing anyone who wants to be a judge of being a pompous idiot (Avot 4:9), he continues (at Avot 4:10):
אַל תְּהִי דָן
יְחִידִי, שֶׁאֵין דָּן יְחִידִי אֶלָּא אֶחָד
Do not judge on your own, for no-one is qualified to judge alone except the
One.
Most Jewish courts deal
with ordinary civil disputes involving loans, debts, breach of contract and the
like, aa well as supervising Jewish divorces, and these courts generally
consist of three dayanim. It is permitted for a dayan to judge by himself (Sanhedrin
3a), but the practice is not generally encouraged. The circumstance in which
this happens is likely to be where the judge has a particular legal expertise
and where both parties to a dispute request it. This being so, one may ask why Rabbi
Yishmael ben Yose is so dead set against it. The mishnah calls for an
explanation.
One approach, taken by
Rabbi Menachem Mendel Schneerson (Pirkei Avot im Sha’are Avot) is to
remove the mishnah from the context of litigation and direct it towards the
individual. When we judge ourselves, we must be aware that we are not impartial,
since no man is a rasha in his own eyes. We cultivate our own biases and
may not even recognize them. When judged by God, however, our thoughts and
actions can be objectively scrutinized. While this is an important lesson, one
might ask whether Rabbi Yehudah HaNasi, who redacted the Mishnah, or the Tanna
who taught it, intended it to be removed from the sphere of civil dispute
resolution, given that it is both preceded and followed by court-specific
statements.
An attempt to widen the
scope of the mishnah without removing it from a judicial context can be found
in Rabbi Shlomo P. Toperoff’s Lev Avot. There, he focuses on the methodology
of the judicial process in terms the standards we use both in court and out of
it for judging others.
Rabbi Toperoff takes the
words אַל תְּהִי דָן יְחִידִי (al tehi dan yechidi, “do not judge on your
own”) and effectively renders them as “do not do strict justice alone” since
the root of the word דָן
(dan, “a judge”) share a
common root with din, “strict justice”. He argues that the Jewish way is
to judge simultaneously in accordance with two standards: din, strict
justice and rachamim, justice tempered by mercy.
This advice is admirable.
We see it implemented in every judicial system in which a court’s decision on liability
is based on strict justice but its resulting order takes into account factors
that mitigate or aggravate the decision itself. However, Rabbi Toperoff then
proceeds to give an example that detracts from the principle he advocates.
On the basis that mishpat
(justice) is the equivalent to din and that tzedakah (charity) is
the equivalent of rachamim, Rabbi Toperoff cites 2 Samuel 8:15 (וְדָוִד֙
עֹשֶׂ֣ה מִשְׁפָּ֔ט וּצְדָקָ֖ה לְכׇל־עַמּֽוֹ , “And David executed
mishpat and tzedakah towards all his people”), he continues:
How did David execute both at the same time? One rabbi interpreted the
verse literally as meaning that when David realised that the condemned man was
poor, he himself undertook to pay the fine. In this manner, David dispensed
justice with charity.
The rabbi concerned was
undoubtedly well-meaning. However, no serious judge or dayan would find it
helpful guidance in dealing with a case before him today. It would be hard to
find judges prepared to hear cases if they were expected to finance fines and
damages out of their own pockets and, if a judge was to be required to
indemnify the guilty or liable party, any deterrent effect of the court’s award
would be diminished or entirely eliminated. A poor person would then be at
liberty to plough his car through a crowd of pedestrians in the knowledge that
the unfortunate judge would be expected to pick up the bill. In short, this
sort of explanation does nothing to promote the real-world value of Pirkei Avot
as a guide to good and ethical behaviour.
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