[From elseweb: Dude]
The other night, at a shivah house [house of mourning], I was enlisted to give a short dvar torah [torah thought] after minchah [minchah]. Sometimes that happens and I have a short piece from a shiur or a derashah ready to hand – I write notes on Pirkei Avos in my siddur, and I draw on them often – but sometimes an original thought strikes out of nowhere, and it’s good, and then it’s gone. I had such a thought that night, and I don’t want to lose it, so I’ll record it here.
I looked at the first chapter, the eighth mishnah, in which Yehudah ben Tabbai warns judges: Don’t act as an attorney for the litigants, see the litigants as wicked when they stand before you, and then, when they have accepted the verdict, they should be meritorious in your eyes.
Reading the mishnah, I realized that a judge is a unique character in the Jewish ecosystem.
The Torah presents several positions of authority, in which individuals are responsible for others – think king, prophet, and kohen, as obvious examples. As a general rule, these figures are shluchim of the tzibbur, agents acting on behalf of the community. The king is required to look after the needs of the community; see Rambam’s Hilchos Melachim 2:6, for example. The prophet is expected to defend the Jews before Gd; see Pesachim 87a on Hosheia for a case study. The gemara in Nedarim 35b-36a debates whether kohanim are our agents or agents of Gd, but it is clear that they serve us, at the least, in approaching Gd for forgiveness when we sin. A judge, though, represents Gd, not us. אלקים נצב, HaShem is present in a court when it convenes. The judge is expected to impartially present the law. After he has tried to convince the parties to go for arbitration and compromise (Sanhedrin 6-7), he is required to execute the law without bias or prejudice.
Therefore, the judge is cautioned: Don’t try to be an attorney for the sides, arguing on their behalf. There is a halachic discussion about when it is appropriate to suggest claims for a litigant; see Gittin 58b. But despite the fact that there are occasions when a court does proactively present arguments, the general rule is that the court must be an impartial listener, standing apart from the litigants rather than identifying with their cases.
The judge is also cautioned to see the litigants as wicked, despite our general rule of דן לכף זכות, of judging others favorably. As the commentators note on this mishnah: A judge will not be able to find fault if he sees the parties as righteous. He must be suspicious; he is not their friend, he is not their agent, but rather he stands apart.
And then the judge is given his third piece of advice: When the case is over, you are no longer a judge.You are non-judgmental. You no longer represent Gd. You no longer have license to suspect. Now you are like every other Jew, and you are obligated to see everyone in the most favorable light possible (Avot 1:6). And more: You are not to judge at all, favorably or otherwise, until you have been in his place (Avot 2:4).
As the Rambam wrote in the first part of Iggeret haSh’mad, our greatest leaders (Moshe, Eliyahu, Yeshayah), and even an anonymous malach, were chastised by Gd for finding fault in the Jewish people. A judge must stand apart, but a Jew must stand with. Yehuda ben Tabbai warns the judge: Know when to be one, and know when to be the other.