Judgmental and Non-Judgmental Jews

[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.

Chanukah 2008 – How to create a unified nation

Here’s a free dvar torah for your Chanukah party:

I’m supposed to be a good guy, and so I’m supposed to make sure that you don’t think ill of me – this is the mandate of והייתם נקיים מה' ומישראל, “You shall be innocent in the eyes of Gd and Israel.”

But you’re supposed to be a good guy/girl, and so you’re supposed to assume the best about me – this is the mandate of הוי דן את כל האדם לכף זכות, Judge everyone favorably.

The two obligations are contradictory; either I should be able to do what I want and rely on you assuming the best about me, or I should be restricted to behavior which is clearly good and you should be able to assume that what you see is what you get!

This issue comes up on Chanukah, regarding the halachah of a home with multiple entrances facing different directions.

Traditionally, Jews have lit the menorah at the site where the public entered their home/yard. Therefore, the gemara teaches – and it is brought in Shulchan Aruch – that one who has multiple entrances facing different directions should light at each one, lest passersby only see a menorah-less entrance and think he didn’t light the menorah.*

The question is the same: Why don’t we tell the on-looker to assume the best about me? Why do I need to worry about his sinful assumption of wrongdoing?

Rav Menashe Klein, in his Mishneh Halachos (5:95) points to the fact that the gemara (Yerushalmi Shekalim 3:2, if I remember correctly), in discussing the law of avoiding suspicion, quotes an additional pasuk as the basis for requiring me to act in clearly positive ways: ומצא חן ושכל טוב בעיני אלקים ואדם, You shall find favor in the eyes of Gd and Man.

This is a more proactive commandment, summoning the Jew to behavior which will earn him credit in the eyes of others, rather than require them to seek out justifications for his behavior. We are obligated to be our best selves in our own eyes, in the Eyes of Gd, and in the eyes of our fellow Jews.

To me, this is a beautiful idea, for it is only upon the basis of a proactive philosophy that we will create a truly unified people.

[You can also fill in here with a nice piece on the lights of the menorah each being unique, but pointing toward the center light, per the commentaries to Bamidbar 8:2.]

*Note: Those of us who live in cold/windy climates, as well as those of us who live in areas where a Jew lighting a menorah is in danger, light indoors. Therefore, the Shulchan Aruch says that in our times, anyone who sees a menorah-less side of the house will just assume we lit inside, and there is no obligation to light in two different spots.