Like many Americans, most of what I know about law has been learned from film or television, primarily law and order, but this week I had the pleasure of digging into Jewish legal history and I’d like to share with you some of what I learned. In the time when our Sages wrote their advice, the system of jurisprudence that had developed was one of layers: the first layer consisted of a local Beit Din of three judges, not necessarily rabbis, but righteous learned men over the age of 25 from any walk of life that would meet in the morning at the city gates in small localities to decide disputes. The judges were not state, guild, or temple-appointed, but chosen from the community for this purpose. There was no plaintiff nor defense attorney, but civil disputes could be brought directly by litigants who would be expected to bring forth witnesses and materials for evidence and knowledgeable associates who could help plead their case through knowledge of law, both secular and religious with no clear boundary. Criminal cases were initiated by a minimum of two witnesses to the crime, who served the role occupied by prosecutors in the modern era. Those who bore witness in either kind of trial were not allowed to recount their testimony following the verdict, but those proven to be bearers of false witness were sentenced to suffer the penalty given to the one convicted upon their testimony. Matters of dispute between courts, complex legal interpretation, or affecting whole communities were escalated to the local or nearby lesser Sanhedrin, a court of 27 men over the age of 25 who would judge the case. Convictions in criminal cases required a majority opinion of at least two, while acquittals only required one. For even greater matters, the Supreme Court was the Great Sanhedrin in Jerusalem, composed of 71 men over the age of 40, typically, but not exclusively rabbis who also served as the de facto legislature for the nation of Israel. After the destruction of the Temple, the Great Sanhedrin persisted for several centuries in various cities in the land of former Israel before migrating to former Babylon. The frequently opposed leaders of this body were the Nasi, the prince, and the Av Bet Din, the father of the house of judgment or law, whom we will hear much from in the weeks and months to come.

It is in the context of this setting that I approached this week’s pair of verses and in them a great deal of interpretative bias, some of which has encroached on this ancient wisdom through modern, casual familiarity with legal principles, and some from the abundant freedom granted by the deep vocabulary of the English language. The word judge does not appear in either passage, nor does the phrase advocate, the concept of which was not yet formulated. Instead we see the term “ch’orchei dayanim’” ‘arranger’ or ‘editor’ of the dayanim, the Rabbin judges of the Sanhedrin. Nor does the term guilty or innocent appear, but ‘rasha’, the same term in previous weeks used as ‘wicked’ and ‘zacha’ worthy. If we understand the speakers and their audience, it is perhaps easier to understand the first verse as “Stay in your lane when resolving disputes and assume both litigants are wicked, that is seeking to win their case not out of belief in their righteousness, but out of a motivation to prevail.” And yet when the verdict has been rendered, remember that they are doing their jobs. Some other commentators have noted that both the winner and loser should be happy if the correct verdict is reached after each does their best to advocate for their position. Likewise, the companion verse encourages those in judgment not to lead the witnesses to answering in a way that would allow them to corrupt the judgment by telling the judges what they want to hear. The ideals laid out in these passages summarize what I consider one of the founding myths of our modern justice system that underpins our society. An ideal that frequently falls short, and yet, thus far, refuses to give up.

He used to say: If I am not for myself, who will be for me? And when I am for myself alone, what am I? And if not now, when?

Open Mishnah

Yehudah ben Tabbai and Shimon ben Shetach received it from them. Yehudah ben Tabbai says: Do not you, [(a judge)], make yourself like [those] orchei hadayanim [(lawyers), who arrange (“orchim”) cases for the litigants before the judges, it being forbidden for one (a judge) to reveal his judgments to one of the litigants, telling him: Do thus and thus so that you win your case — even if he knows that he is in the right. Alternately, “ke’orchei hadayanin,” like the great among the judges. This, in reference to a disciple sitting before his master, that he not make himself like the great among the judges, to speak before his master as a decisor of the law. “Orchei” as in “the erkaoth of the gentiles,” the erkaoth of the House of David.” And from others I have heard: “Do not make yourself as the great ones of the judges to force the litigants to come to judgment before you.] And when litigants stand before you, let them be in your eyes like wicked ones, [that you not favor one of them, saying “This one is a distinguished man and will not make a false claim.” For if you say this, you will see no guilt in him.], and when they take their leave of you, let them be innocent in your eyes when they have taken the judgment upon themselves. [Do not suspect the arraigned one as a thief but as one who erred and had no intention of stealing. Or, if an oath was imposed upon one of them and he swore, do not say that he swore falsely.]

Shimon ben Shetach says: Be thorough in cross-examining the witnesses, and be circumspect in your words, lest from them they learn to lie. [Let the judge not say: “Perhaps this and this is what happened,” or “If this were the case, Ploni would be innocent.” From such words, the litigant or the witnesses learn to say what never happened.]

9. Jehudah ben Tabai and Shime’on ben Shatach received from them. Jehudah ben Tabai said, Make not thyself as them that predispose the judges; and while the litigants stand before thee, let them be in thine eyes as guilty; and when dismissed from before thee let them be in thine eyes as righteous, because that they have received the doom upon them.

10. Shime’on ben Shatach said, Make full examination of the witnesses; but be guarded in thy words, perchance from them they may learn to lie.