Playing at being lawyers -- or just being helpful?

Yehudah ben Tabbai (Avot 1:8) teaches a rule for dayanim, trial judges in Jewish courts, that at first seems superfluous. They must be above the dispute and not participate in it as if they were engaged as counsel:

אַל תַּֽעַשׂ עַצְמְךָ כְּעוֹרְכֵי הַדַּיָּנִין, וּכְשֶׁיִּהְיוּ בַּעֲלֵי הַדִּין עוֹמְדִים לְפָנֶֽיךָ, יִהְיוּ בְעֵינֶֽיךָ כִּרְשָׁעִים, וּכְשֶׁנִּפְטָרִים מִלְּפָנֶֽיךָ יִהְיוּ בְעֵינֶֽיךָ כְּזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין

[When sitting in judgement], do not act as a lawyer. When the litigants stand before you, consider them both guilty; and when they leave your courtroom, having accepted the judgement, regard them as equally righteous.

It is a matter of common knowledge that the job of judges is to hear disputes and judge them, while lawyers are engaged to help their clients by researching the relevant laws, collecting evidence, constructing favourable arguments, and then by putting the evidence and arguments before the judges in a manner that is most likely to be accepted by them.

The Torah makes it clear that the judge must be impartial and should not side with any party to a dispute. The dayanim are forbidden to let themselves be influenced by bribes or partisan considerations because they are charged with the responsibility of reaching a just decision (Devarim 16:18-20). The Vilna Gaon’s commentary on this mishnah goes further, supporting it with a verse from the prophets (כִּי כַפֵּיכֶם נְגֹאֲלוּ בַדָּם, וְאֶצְבְּעוֹתֵיכֶם בֶּעָוֺן; שִׂפְתוֹתֵיכֶם, דִּבְּרוּ-שֶׁקֶר--לְשׁוֹנְכֶם עַוְלָה תֶהְגֶּה, “For your hands are defiled with blood, and your fingers with iniquity; your lips have spoken lies, your tongue mutters wickedness”, Isaiah 59:3). According to Rashi (Shabbat 139a) this verse applies to judges teaching the litigants how to argue their cases.

Does all of this mean that dayanim may not intervene on behalf of a litigant? One might think so—but there is a contrary opinion too.

R’ Ovadyah Hedaya (Seh leBet Avot) cites a little-known work of halachah, the Shulchan haTahor of R. Yitzchak Ayzik Yehudah Yechiel Safrin of Komarno. This work, which seeks to reflect Jewish law as viewed in light of the mysticism of Chassidut and Kabbalah, postulates that a dayan may come to the rescue, as it were, of a litigant whose case has some merit but who is so flustered by the heat of the moment that he is incapable of expressing himself. This sort of intervention is mandated by the principle of petach picha le’ilem (“open your mouth for the one who is dumb”).

Clearly this principle has its limitations and cannot be invoked in order for a dayan to be dan lekaf zechut on behalf of one adversary against another. This is why Yehudah ben Tabbai adds that, before a bet din (Jewish court) gives its decision and the litigants accept it, a dayan must regard them both as being in the wrong.

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When war breaks out

We have all been shocked and distressed by the sudden turn of events that transformed the tranquil spiritual haven of Shabbat and the festival of Shemini Atzeret in Israel into a bloodbath of terror, chaos, violence and death. At the time of writing this piece, how this could have happened is beyond comprehension. We can only mourn the dead, console the living, take care to safeguard our own lives, pray that no more innocent human life should be lost on either side -- and remember to place our trust in God.

What does Pirkei Avot have to offer in a situation such as this? The Ethics of the Fathers is not a soldiers’ manual. One of its overarching themes is that of peace. We are taught to love and pursue it (Avot 1:12) since it is one of the three bases upon which the world endures (Avot 1:18) and one of the 48 qualities that enable a person to acquire Torah (Avot 6:6). Anger and violence are not condoned, and the praise accorded to strength is not that of the warrior but of the person who exercises self-control (Avot 4:1). Beyond that, the maxims and principles articulated in Avot are not suited to military conflict. Is it meaningful to expect a soldier to judge favourably the sniper who his aiming to shoot him, or to greet his enemy with a happy, smiling face?

But Avot will have an important place in the unfolding of the story of this tragic conflict. Eventually the events leading up to the Hamas invasion will be subjected to the close scrutiny of an official inquiry. This is where Avot is particularly relevant, since another of its overarching themes is that of justice—another of the bases upon which the world endures. The tractate contains substantially more references to the judicial process than it does to peace, and there is good reason for this. Peace is an end that we seek to achieve, while justice is both an end in itself and a means of achieving it.

Yehudah ben Tabbai teaches (Avot 1:8):

כְשֶׁיִּהְיוּ בַּעֲלֵי הַדִּין עוֹמְדִים לְפָנֶֽיךָ, יִהְיוּ בְעֵינֶֽיךָ כִּרְשָׁעִים, וּכְשֶׁנִּפְטָרִים מִלְּפָנֶֽיךָ יִהְיוּ בְעֵינֶֽיךָ כְּזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין

When disputants stand before you, consider them as being guilty; and when they leave your presence, regard them as innocent because they have accepted your ruling.

This mishnah does not overtly mention commissions of inquiry, but the principles it incorporates are highly relevant. In his Avot leVanim, R’ Chaim Druckman links it to the tail-end of a verse from Leviticus:

בְּצֶדֶק, תִּשְׁפֹּט עֲמִיתֶךָ

“In righteousness you shall judge your fellow” (Vayikra 19:15).

Citing explanations of this Torah snippet by Rambam and Rashi, R’ Druckman builds on his theme that the “righteousness” referred to here covers the procedural aspects of a hearing as well as its decision. It is imperative to treat everyone who comes before a tribunal in a fair, open and impartial manner.

What does this entail? For one thing it means letting everyone have their say, not pressing some parties and witnesses to say more while seeking to stifle or curtail what others have to say. For another thing it means disregarding rank, status, fame or notoriety of those who come under scrutiny.

All of this is in practice more difficult than one might at first think. The public will, quite understandably, looking for people to blame. These may be politicians or those with military and intelligence expertise. They may be senior or junior, and either possessing military or government experience or lacking it. Both the public and the investigators will have been exposed, inevitably, to a large quantity of information promulgated by the media, some of which may be factual but which may also have been designed to shape public opinion.

The responsibility of those who examine the lead-up to this war, its conduct and possibly its consequences is immense, and the pressure to which they will be subjected may be close to overwhelming. Nonetheless, Avot urges them to take strength and conduct their duties in a manner that is absolutely transparent and impartial, so that there can be no accusations of cover-ups, no allegations of favouritism—and so that, with the truth at its disposal, Israel will be in a position to dispense true justice.

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