WHO, OR WHAT, IS THE ONE AND ONLY?

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.

Taken at face value, the "One" is God. But Avot is supposed to teach us mussar and middot--how to behave. While we seek to emulate God when and where we can, our sphere of operation is the sphere of the mundane. So what message can we learn from this mishnah that will apply specifically to us?

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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"Where do you come from, where do you go?"

“Where do you come from, where do you go?” How often nowadays does one hear this refrain being sung by youngsters as they dance happily to the thumping beat of “Cotton Eye Joe”, a song that has worked its way into current simchah playlists.

The same issues are tackled in rather more serious fashion by Akavya ben Mahalalel in Avot 3:1:

הִסְתַּכֵּל בִּשְׁלֹשָׁה דְבָרִים, וְאֵין אַתָּה בָא לִידֵי עֲבֵרָה. דַּע מֵאַֽיִן בָּֽאתָ, וּלְאָן אַתָּה הוֹלֵךְ, וְלִפְנֵי מִי אַתָּה עָתִיד לִתֵּן דִּין וְחֶשְׁבּוֹן. מֵאַֽיִן בָּֽאתָ: מִטִּפָּה סְרוּחָה. וּלְאָן אַתָּה הוֹלֵךְ: לִמְקוֹם עָפָר רִמָּה וְתוֹלֵעָה. וְלִפְנֵי מִי אַתָּה עָתִיד .לִתֵּן דִּין וְחֶשְׁבּוֹן: לִפְנֵי מֶֽלֶךְ מַלְכֵי הַמְּלָכִים הַקָּדוֹשׁ בָּרוּךְ הוּא

[Translation] Reflect upon three things and you will not come to the grip of sin. Know where you come from, where you are going, and before whom you shall give a full account of yourself. Where you come from—from a putrid drop; where you are going—to a place of dust, maggots and worms; and before whom you shall give a full account of yourself—before the supreme King of Kings, the Holy One, blessed be He.

Mishnayot like this are ideal material for serious commentary as we approach Rosh Hashanah, which is not just New Year’s Day but יום הדין (Yom HaDin, The Day of Judgement).

The core idea of the mishnah is clear enough. We start off as nothing greater than a drop of seminal fluid and our bodies end up under a couple of metres of earth—but our soul, our quintessential being—must still settle its account with our Maker, when our credits and debits are totted up and we are duly rewarded or punished, or both.

Our lives are bookended by conception, at one end, and death at the other, and the mishnah ultimately spells this out when it repeats its three questions. But why does it not supply its answers when it first asks them?

The Maharam Shik suggests that, in posing the questions, Akavya ben Mahalalel invites us to take a deeper perspective. Though our lives are bookended by conception and death, we are not conceived in a vacuum; nor do we live within one. We come from our parents and our families, and ultimately from our forefathers Abraham, Isaac and Jacob. When we die, we leave behind us our children, grandchildren and the future generations that lie beyond them. So, when we consider how to state our case before the Heavenly Court, we should be thinking not merely of our own performance in life but also how we measure against those whose ideals and aspirations are our inheritance and how greatly we have served as role models for transmitting our faith and our values to the generations yet to come.

It goes without saying that the best time to consider these things is while we are still alive and can do something about them.

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Temper, Temper!

Here’s an interesting observation from R’ Yaakov Moshe Charlap (Mei Marom 2:52, cited by R’ Chaim Druckman, Avot leBanim) on the subject of how we judge other people. Avot Today has often cited the teaching of Yehoshua ben Perachyah at Avot 1:6, that we should judge people on a scale of favour, giving them the benefit of the doubt if it is possible to do so. R’ Charlap points out that our judgement of others can be as much a reflection of ourselves as of the person we are judging. Thus a person who is very rarely angry and only reaches that condition when sorely provoked, on seeing someone else displaying anger, is apt to conclude that this angry person must have been sorely provoked too and would not have lost his temper under normal circumstances. Presumably this works the other way too: someone who is quick-tempered, viewing someone else losing their temper, will empathise with them because his experience and perception is the same.

What does this mean in wider terms? Do we want to urge a man who is a wife-beater to judge someone else who abuses his spouse the same way because he appreciates how gratifying it may be? Surely not. Perhaps the point here is that, when looking at the conduct of another person and then excusing it or empathising with it, the onlooker should—without casting aspersions on the other person—use what he sees as a sort of behavioural barometer to measure the acceptability of this conduct. That way, before the onset of Rosh Hashanah and the great annual judgement to which we subject ourselves, we will have done a better and more honest job of assessing our own performance over the past year. That way too, we stand a better chance of putting our performance right for the year to come.

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