Ethical conduct demanded of the judge...

ut what is wrong with that? Why shouldn't the layman who has a claim against another, or the unskilled defendant, who is threatened by a lawsuit, learn how to protect himself? In fact, Halacha does provide for the use of a “to'ayn,” one who presents the arguments for his patron. So what does Yehuda Ben Tabai mean by his advice not to arrange counseling for a litigant?

He is addressing the judges, not the lawyers. What he is saying to the judges is to avoid trapping himself or herself into the role of the advocate. He says to the judge: Don't provide leading questions or statements from which a litigant can infer cunning answers to make his claim. Remember! Your goal is the search for clarity and truth. The words of the litigants themselves, in their innocence and naivete will reveal the truth, and you will be able to determine justice in the matter.

How does the judge avoid that pitfall?

a.Maintain strict impartiality in your treatment of the litigants.....

AND WHEN THE LITIGANTS ARE STANDING BEFORE YOU

...either both stand or both sit before you. One is not permitted to sit and the other to stand. If one is permitted to sit, the other senses a bias in favor of the sitter. If the rich man may sit and the poor man stand, the confidence in the judge is shaken.

b.Maintain strict impartiality within your own conduct.

The Shach, in his commentary on Shulchan Aruch, Choshen Mishpat, (sec 17, in the name of Sefer Chasidim) which deals with civil law, adds that the judge should avoid looking directly at the litigants. That is not to say that he should not attempt to discern their demeanor. It is meant as a safeguard against falling prey to partiality. If one can close his eyes and blind his vision from extraneous subliminal attractions, then he can 'hear' clearly the merits of an argument.

A very vivid example of this is right here in CIS. We are constantly engaged in argument and debate. I have always maintained that we don't have to physically see our correspondents, yet we get to know them well. We learn who is kind and gentle and who is course and aggressive. We sense their personalities and their characteristics and we develop friendships and attachments to each other.

c.Seeing them might even have an opposite result, in that we may not see them for their soul alone, but our evaluation may become colored by their physical attraction or repulsion.

d.Maintain your impartiality by the way you view the litigants...

LET THEM BE IN YOUR EYES AS EVIL DOERS

That is a strange requisite! Why "evil-doers?" Why not "innocents?" After all, it is a basic principle of Torah that everybody has a 'chezhas kashrus'... a presumption of innocence! And yet Yehuda Ben Tabai requires the judge to give them both a presumption of guilt!

Yehuda Ben Tabai, in his wisdom, delves into the mind of the human being. The judge's goal is to unearth the truth, and it demands a detached adversarial stance. If the judge displays a friendly attitude that they are innocent, his demeanor is more conciliatory, more understanding, more compromising. He wants the TRUTH! and that demands doggedly pursuing strict and deep questioning, as if they are guilty. Search for the truth with all the rigor by seeing them as the object of guilt, which you want to reveal.

If you, the judge, have followed these strict guidelines of impartiality, then you shall have arrived at the successful conclusion of your purpose... the search for truth.

HOWEVER, WHEN THEY DEPART FROM YOU LET THEM BE IN YOUR EYES AS INNOCENTS, WHEN THEY HAVE ACCEPTED THE JUDGMENTS UPON THEMSELVES.

The purpose of Torah is to bring shalom, peace upon the world.

When the two litigants have accepted the judgment of Torah upon themselves, and when the one judged guilty has accepted and acknowledged the wisdom of Torah (Da'as Torah) upon himself... then there is no reason to carry a burden of guilt any longer. Hashem, in His infinite wisdom established principles that the judge applied and declared one guilty and the other innocent. When the guilty party pays his debt, he is a newborn man, with his presumption of innocence reaffirmed.

When two Jews recognize that whatever dispute they may have between them, and that every facet of life is covered by Torah, their approach and attitude toward each other in an adversarial relationship is not laden with hatred and venom, but with honesty and integrity. They approach the dayun, the judge, with an attitude that is best expressed as:

"We have a dispute. We each claim to be right. It involves rights, money, etc. Tell us how the Torah views our respective positions. Tell us what the Din Torah is, and we agree to abide by it."

The result MUST be shalom... because this is what Hashem revealed as the way He wants us to live.

That is the reason Yehuda Ben Tabai instructs:

HOWEVER, WHEN THEY DEPART FROM YOU LET THEM BE IN YOUR EYES AS INNOCENTS, WHEN THEY HAVE ACCEPTED THE JUDGMENTS UPON THEMSELVES.

While the Mishna deals with the role of the judge vis a vis the plaintiff/defendant, the message is easily broadened to every aspect of our lives. We are always judges of our environment, associates, friends and neighbors, parents and children. If we want to see things honestly, then we have to retain an aura of impartiality. We can then be honest with ourselves and with those whom we see.