Chapter 1                  Mishna 1                  Essay 2

 

   Be Deliberate in Judgement

 

 

THEY (the men of the Great Assembly) SAID THREE THINGS:

 

            A.  BE DELIBERATE IN JUDGEMENT

            B.  ESTABLISH MANY STUDENTS

            C.  AND MAKE A BOUNDARY AROUND THE TORAH

 

What is significant about these three statements that they are recorded here of all the proceedings of the Anshei Knessess Hagadola (Great Assembly)?

 

A.        Be Deliberate in Judgement:

 

1.          Admonition regarding the appointment of judges

 

 

            Having established that the Law was received from Hashem and transmitted to the nation at large, the first duty of the Jewish society was to establish a system for dispensing the Law, through the the courts and judges.  Society can exist only if true justice administered by learned and honest judges will prevail.

 

So here, the Mishna addresses the first need of society and admonishes the authorities who appoint the judges.  Be very deliberate, careful, in the selection of your judges because should you select improper judges you can destroy your society.  In Chapter 5 of Avos, Mishna 9 the Mishna reads: 'The sword comes upon the world for delaying justice and for perverting justice.'

 

How true this rings!  Consider the revolutions that erupted because justice was delayed, because the people felt that their legitimate needs and demands were ignored, and because of the perversions and corruptions of men in power.

 

 

2.                  Admonition to the judges themselves

 

The judge has the power over the life and fortunes of members of society.  He bears a heavy responsibility in determining that no one is unjustly deprived of his rights and property.  Therefore he is admonished to examine everything slowly, deliberately and involve all the factors before he arrives at a decision.  He bears an awesome burden, so that the Torah likens him to G-d, as a judge.  With regards to  the judges, the Torah states in Exodus 22:8  'Before Elo-kim shall come the matter of the two (litigants)' and that refers to the judges.

 

The Torah admonishes the judge to approach his authority with awe and to imagine as if a sword were upon his throat.  The Gemora in Bava Basra states that whoever determines a judgment to its ultimate truth, becomes a partner in creation with G-d.  What does 'ultimate truth' mean?  Tosefos on location explains that a judge may see the merits in an argument of a litigant, but feel intuitively that the man is a liar.  On the surface the inexperienced arbiter might feel that he must decide in that man's favor, but the true discerner of human nature, and the one who can perceive thru the facade and pursues the matter to its 'ultimate end' will determine correctly.

 

There is a concept in halacha which is called 'Shuda, d'dayana.'  This refers to the right of a judge to ignore certain arguments and to decide on the basis of deeper understanding of the situation at hand.  Of course, it is needless to say, that the judges must be of the highest caliber of person, learned, G-d fearing, and with a thirst for truth.

 

3.         Admonition to the judge and to the litigant to defer seeking judgment in

            favor of compromise

 

            The Torah in Deuteronomy 6:18 states:  "You shall do the straight and the good in the eyes of Hashem...."  Rashi quotes our Rabbis and says the 'straight and the good' refers to P'shara... compromise, beyond the literal law.

 

This admonition applies to both the judge and the litigants.  P'shara is primary!  It is primary because it ends is shalom, peace.  P'shara is evolved by the consent of both parties; no one has compelled them to do so, but they themselves have chosen to settle their differences by compromise, rather than by a decision imposed from the outside.  No one litigant receives all he wants, but neither does he lose everything.

 

Because the litigants agree to accept a compromise, they walk out of the court in a mood of peace and accommodation, rather than strife and enmity as a result of a court decision.

 

Law should be the last resort.  The Torah frowns upon those who have to resort to the ultimate.  The Talmud relates that Jerusalem was destroyed because its inhabitants judged by the law of the Torah.  The listeners were astounded and questioned:  By what other law should they have judged?  The Gemora then qualifies its statement and says:  Jerusalem was destroyed because its inhabitants judged only by [the letter of] the law of the Torah.  When you stand on the letter of the law, it's a reflection on how bad human relationships have deteriorated.

 

          4.            Admonition to the litigants

 

 

The Mishna advises the litigants.  When you present your case be very slow in rushing to the courts.  Prepare your arguments well, have them clearly arranged in your mind... because once you have stated your case you cannot retract your arguments (with specific exceptions) and you have to live with it.

 

Speak slowly, softly, and not abusively.  'Divrei chachamim b'nachas nishma-im'.  The words of scholars are accepted when spoken in calmness.