“I commanded your judges…” (1:16)
Continuing his account of the forty years that Bnei Yisroel sojourned in the desert, Moshe recalls the creation of the legislature at the behest of his father-in-law Yisro. The verse states that Moshe instructed the Judges “Shamo’u bein acheichem ushfatetem tsedek” – “Listen between your brethren and judge righteously.”1 Why does the verse not state “listen to your brethren” instead of “between your brethren”? Why is it necessary to instruct the judges to listen to the litigants? Is it not obvious that a judge must listen to the litigants prior to ruling? Why is it necessary for Moshe to make the statement “judge righteously”?
Citing the Sifri, Rashi relates that the requirement of a judge to be deliberate prior to ruling was included in Moshe’s instruction. Even if similar cases have passed before the court, they should not render judgement hastily.2 This interpretation is the source for the first Mishna in Pirkei Avos, “havu mesunim badin” – “be deliberate in judgement”.3 Apparently, the message is that each situation has nuances which may affect the outcome and should therefore be analyzed with care. Although this directive applies to criminal cases as well, it is written in the context of civil cases, “bein acheichem” – “between your brethren”, where mistakes are reversible and do not endanger life. Why does the Torah specifically use the example of where there are two litigants to give the message of “havu mesunim badin”? Why does the Torah not include this requirement in the directive for doctors to heal, where a lack of deliberation could result in the loss of life?4 Requiring caution prior to making decisions is a self-evident truth, yet this self-evident truth is given such priority that it is included in the oral transmission of the first generation of the Anshei Keneses Hagedolah.5 Why is it necessary to enjoin the judges concerning this matter?
The Mishna states that a judge should view both parties standing before him as wicked until the matter is resolved.6Generally, a person is presumed innocent until proven guilty. Why must the judge consider them guilty?
The majority of civil disputes in a joint business venture do not occur between individuals who have always maintained an adversarial relationship, for they are careful to explicitly state the recourses which should be taken for every possible situation that might arise. Most disputes occur when there is an element of trust between the two parties, and therefore many details of the fiscal relationship have been left unstated. Each person by nature has a subjective perception of reality, and therefore perceives the facts with his own bias. If a dispute cannot be resolved without Beis Din, the judge must be aware that each person is adhering to his own skewed perception, unwilling to see the perception of the other party and therefore refusing to reconcile. Since neither perception is the objective reality, it is the responsibility of the judge to ascertain the objective truth from both subjective opinions. He must therefore begin by viewing both litigants as wicked, i.e. distorting the truth.
The Torah is instructing the judge as to how to judge righteously. No two cases are absolutely comparable for each person’s perspective is entirely different, and determining the objective truth requires great deliberation. The judge does not listen to the litigants, rather, between the two opinions a third must be formulated. A doctor’s greatest collaborator in reaching a diagnosis is the patient; based upon the patient’s complaints and information the doctor arrives at his diagnosis. The litigant has an adversarial relationship with the judge, for the judge is searching for objective truth while the litigant is offering a subjective perception. It is therefore a much greater feat for the judge to be successful and he must be enjoined to remain unaffected by the deceptions of his litigants.
1.1:16 2.Ibid 3.1:1 4.Shemos 21:20 5.Avos 1:1 6.Ibid 1:8, See Sefer Chasidim who prohibits the judge from looking at the litigants faces for this reason.