(ח) יְהוּדָה בֶן טַבַּאי וְשִׁמְעוֹן בֶּן שָׁטָח קִבְּלוּ מֵהֶם. יְהוּדָה בֶן טַבַּאי אוֹמֵר, אַל תַּעַשׂ עַצְמְךָ כְעוֹרְכֵי הַדַּיָּנִין. וּכְשֶׁיִּהְיוּ בַעֲלֵי דִינִין עוֹמְדִים לְפָנֶיךָ, יִהְיוּ בְעֵינֶיךָ כִרְשָׁעִים. וּכְשֶׁנִּפְטָרִים מִלְּפָנֶיךָ, יִהְיוּ בְעֵינֶיךָ כְזַכָּאִין, כְּשֶׁקִּבְּלוּ עֲלֵיהֶם אֶת הַדִּין:
(8) Judah ben Tabbai and Shimon ben Shetach received [the oral tradition] from them. Judah ben Tabbai said: do not [as a judge] play the part of an advocate; and when the litigants are standing before you, look upon them as if they were [both] guilty; and when they leave your presence, look upon them as if they were [both] innocent, when they have accepted the judgement.
This Mishna, as many others to come, turns specifically to the judge. This is not a localization of what we thought to be a book of general ethics. Rather, Torah recognizes that many ethical issues arise specifically out of leadership roles and places of power. This is especially important for a nation that produces learned people many of whom are well suited for judicial and leadership roles.
The first part of Yehudah's advice is perfectly understandable. It speaks to the desire of the judge to nudge the litigant they perceive to be innocent in the direction of that innocence.
Take the feeling of a father who wants to give a prize to his son for answering a question correctly at the Shabbat table. The father asks what happened to the tablets when Moshe saw the Egel HaZahav, the golden calf? His son begins, "he got angry, he took the Luchot..." the father's face lights up... "and began walking back up the mountain...", the father's face falls. What's the next move? The father will most likely something to the effect of, "are you sure he walked back up the mountain? Did he do something with the Luchot, maybe?"
Someone who has presumptions of right and wrong - which any good judge should have - will always feel the urge to nudge the innocent in the direction of their innocence. A judge, though, needs to be entirely subservient to the law and its judicial process. Therefore he can never try to nudge anyone in any direction. How the case is presented is entirely up to the litigant and the law responds only to this presentation.
The primary questions that one might notice arise - at least in my opinion - in the second part of this Mishna. Firstly, why not simply pose the solution of looking at the litigants equally? What is the point of framing it in this peculiar way of seeing them both as "Resha'im", otherwise known as obnoxious and deceitful people?
Moreover, the next piece of advice does not seem to be exclusive to judges. In fact, the Talmud (Sanhedrin 7b) gives this as a general advice. When someone overcomes the urge to fight their loss in court and instead accepts with dignity and maturity the process of justice, this is certainly praiseworthy. Such a person should always be seen as vindicated and righteous. Why would Yehudah b. Tabai frame this in the context of the judge?
To me it appears that the Mishna is being honest and truthful about human psychology. The moment two litigants approach the judge, the mind automatically assumes one is guilty - as logic would dictate it do - and this automated assessment poses the grave risk of labeling one of the litigants as the "more" guilty party. That is, the one most likely to be guilty. It is ignorant to simply tell judges to be impartial as this plays against deep psychological biases. Instead, once one of them is for sure guilty, look at them as both guilty. This also utilizes our default position to view people negatively, see Mishna 6 above.
In this way, Yehuda gives a practical and realistic piece of advice that should work to soften the risk of the judge's biases. It also allows us to gain insight into the bare honesty a judge must have of himself in order to keep himself in check. A judge must know that he is very susceptible to mistake and bias. His strategies will only work if they work together - and not in naive circumvention - with these human realities. It is okay to be human, it is not okay to pretend you are not human.
This leads directly into the final point. The average person creates a positive outlook on humanity by judging favorably, as we saw in Mishna 6. A judge, in the precarious state of moral hazard that he finds himself within, must adjust this perspective and be highly skeptical and perhaps even downright cynical in order to perceive two guilty parties standing before him.
I would like to suggest that Yehuda b. Tabai is not making a philosophical statement about the purity of someone who accepts the judgement. I believe he is giving an imperative to judges. The judge must actively rewrite the way in which they viewed these litigants. A judge who acts bitter about how guilty everyone is, and does so constantly and consistently is sure to create a terrifyingly cynical outlook on the Jewish people around him. To combat this, he must do perspective therapy each time the litigants walk away having accepted justice. By actively pursuing ways to view them as righteous, the judge repairs the damaging viewpoint that was the evil necessity of overcoming biases. Therefore, as these two litigants walk away, the judge flushes his eyes with positivity and beauty of these two stellar human beings.
Perhaps one need only meditate on the feelings of remorse that must course through the judges mind as he realizes that these two men once so convincingly evil were in fact righteous all along. Imagine the humility this inspires and ingrains within the judges psyche. No doubt humble judges are an absolute ideal for the Jewish nation.
The first part of Yehudah's advice is perfectly understandable. It speaks to the desire of the judge to nudge the litigant they perceive to be innocent in the direction of that innocence.
Take the feeling of a father who wants to give a prize to his son for answering a question correctly at the Shabbat table. The father asks what happened to the tablets when Moshe saw the Egel HaZahav, the golden calf? His son begins, "he got angry, he took the Luchot..." the father's face lights up... "and began walking back up the mountain...", the father's face falls. What's the next move? The father will most likely something to the effect of, "are you sure he walked back up the mountain? Did he do something with the Luchot, maybe?"
Someone who has presumptions of right and wrong - which any good judge should have - will always feel the urge to nudge the innocent in the direction of their innocence. A judge, though, needs to be entirely subservient to the law and its judicial process. Therefore he can never try to nudge anyone in any direction. How the case is presented is entirely up to the litigant and the law responds only to this presentation.
The primary questions that one might notice arise - at least in my opinion - in the second part of this Mishna. Firstly, why not simply pose the solution of looking at the litigants equally? What is the point of framing it in this peculiar way of seeing them both as "Resha'im", otherwise known as obnoxious and deceitful people?
Moreover, the next piece of advice does not seem to be exclusive to judges. In fact, the Talmud (Sanhedrin 7b) gives this as a general advice. When someone overcomes the urge to fight their loss in court and instead accepts with dignity and maturity the process of justice, this is certainly praiseworthy. Such a person should always be seen as vindicated and righteous. Why would Yehudah b. Tabai frame this in the context of the judge?
To me it appears that the Mishna is being honest and truthful about human psychology. The moment two litigants approach the judge, the mind automatically assumes one is guilty - as logic would dictate it do - and this automated assessment poses the grave risk of labeling one of the litigants as the "more" guilty party. That is, the one most likely to be guilty. It is ignorant to simply tell judges to be impartial as this plays against deep psychological biases. Instead, once one of them is for sure guilty, look at them as both guilty. This also utilizes our default position to view people negatively, see Mishna 6 above.
In this way, Yehuda gives a practical and realistic piece of advice that should work to soften the risk of the judge's biases. It also allows us to gain insight into the bare honesty a judge must have of himself in order to keep himself in check. A judge must know that he is very susceptible to mistake and bias. His strategies will only work if they work together - and not in naive circumvention - with these human realities. It is okay to be human, it is not okay to pretend you are not human.
This leads directly into the final point. The average person creates a positive outlook on humanity by judging favorably, as we saw in Mishna 6. A judge, in the precarious state of moral hazard that he finds himself within, must adjust this perspective and be highly skeptical and perhaps even downright cynical in order to perceive two guilty parties standing before him.
I would like to suggest that Yehuda b. Tabai is not making a philosophical statement about the purity of someone who accepts the judgement. I believe he is giving an imperative to judges. The judge must actively rewrite the way in which they viewed these litigants. A judge who acts bitter about how guilty everyone is, and does so constantly and consistently is sure to create a terrifyingly cynical outlook on the Jewish people around him. To combat this, he must do perspective therapy each time the litigants walk away having accepted justice. By actively pursuing ways to view them as righteous, the judge repairs the damaging viewpoint that was the evil necessity of overcoming biases. Therefore, as these two litigants walk away, the judge flushes his eyes with positivity and beauty of these two stellar human beings.
Perhaps one need only meditate on the feelings of remorse that must course through the judges mind as he realizes that these two men once so convincingly evil were in fact righteous all along. Imagine the humility this inspires and ingrains within the judges psyche. No doubt humble judges are an absolute ideal for the Jewish nation.