Commento su Pirkei Avoth 1:8

DO NOT ACT [lit. “make yourself”] LIKE `ORCHEI DAYANIM. Rav: like those people who put together and present the arguments of the litigants before the judges, as one is forbidden to offer legal advice of the type “do such-and-such in order to secure the judgment.” It seems from the beginning of his comment that he understands `orchei dayanim as themseles presenting these arguments before the judges, and this is indeed how Rashi explains a passage in Sotah 47b, commenting on the term “whisperers of whispers”: they whisper back and forth with the judges, finding them a legal opening to rule in favor of one party and against another. And so Rashi on page Ketubot 52b (s.v. Ke`orchei hadayanim).
But from the end of Rav’s comment it is clear that even at the beginning, where he writes “who put together and present the arguments of the litigants before the judges,” he does not mean that they themselves argue these points before the judges, but that in revealing these arguments to the litigant and saying “do such-and-such” it is as though they themselves were arguing before the judges. And this is how Rashi explains it in his commentary here and on Shabbat 139a (s.v. ‘Orchei hadayanim).
Now Rambam writes: “`Orchei hadayanim”—these are individuals who study legal arguments so that people should be familiar with them. They write textbooks in question-and-answer format: “When the judge says such-and-such, answer such and such,” and “when the opposing party says such-and-such, your answer should be such-and-such,” as if the litigants are before them and they are presenting [Heb. `orchei] the arguments. This is why they are called `orchei hadayanim, for it is as if they have presented [Heb. `archu] the arguments before them. According to this reading, the word `orchei, “those who present,” has a hidden object, for it really means “those who present arguments before the judges.”³⁴Some clarification is in order. The phrase `orchei hadayanim is in what is known as the construct state, a feature of Hebrew grammar in which two words x y are read as “the x of y.” Accordingly, `orchei hadayanim should be read as “the `orchim (non-construct plural of the singular `orech) of the dayanim.” Two interpretive questions present themselves: how to understand `orchim, and how to understand the sense in which these `orchim are “of” the dayanim. Rashi in the first approach quoted by the author understands `orchim as a noun meaning “laywers,” more or less, and they are “of” the dayanim, judges, in the sense that they stand before them. The phrase then reads “lawyers arguing before judges.” Rashi and Rav in the second approach quoted by the author differ from the first approach only in that they do not see the `orchei hadayanim as actually present in the courtroom. In what sense, then, are they “of the judges?” To answer this, the author explains that it is as if they have actually presented the arguments before the judges, and for this reason they are called “lawyers arguing before the judges.” Rambam quoted in the third approach sees `orchei as a participle meaning “presenting.” The Hebrew verb here is strictly transitive and as such the participle requires an object, which the Rambam explains as “legal arguments.” The author notes that this object must be supplied by the reader and is therefore a “hidden object,” i.e. not present in the actual phrase `orchei hadayanim, which is now read as “[those who are] presenting (the arguments) before the judges.”
Lev Avot writes that he heard the following explanation: it is as if he has arranged [Heb. `arach] the judges themselves, for when the judges rule in one party’s favor it is because he has presented that party’s arguments, in which sense he has set up [Heb. `arach] the judges to issue this ruling.³⁵I have been translating the verb `arach thusfar as “present.” Although it has the literal meaning “to arrange,” the equivalent English idiom has the lawyers “presenting arguments” rather than “arranging arguments.” The approach of Lev Avot takes the construct `orchei hadayanim to mean “those who arrange the judges” (see above note) or, in more idiomatic English, those who “set up” the judges.
Midrash Shmuel writes in the name of R. Matityah HaYitzhari: the mishna is certainly not discussing one who aids the litigant in presenting deceitful arguments, for such a one is a completely evil person. Rather, it refers even to presenting true arguments that will change the course of the proceedings, as per the passage in Ketubot 52b concerning the law of indefinite medical expenses, which are considered “sustenance” and are paid from the estate of the husband. Rabbi Yochanan advised the heirs to pay a fixed sum to a doctor, making them definite medical expenses.³⁶By Jewish law, before marriage the husband signs a kind of pre-nuptial agreement called a ketubah, which specifies the husband’s obligations to the wife both during marriage and in case of divorce or death. The law dictates that a widow be allowed to choose between collecting the sum specified in her ketubah or receiving basic sustenance from the heirs, which she can do indefinitely until she chooses to collect the ketubah. Some needs, however, are not considered “sustenance” and are deducted from the sum of the ketubah. The question in Ketubot revolves around medical treatment. There, it is the opinion of R. Shimon ben Gamliel that indefinite medical treatment (i.e. for a chronic illness) is considered “sustenance” and must be paid out of the husband’s estate without being deducted from the sum of the ketubah, while definite medical treatment is not considered “sustenance” and is deducted from the sum in the ketubah. Some relatives of Rabbi Yochanan asked for advice concerning a case of indefinite medical treatment. He advised them to find a doctor who would be willing to care for the widow indefinitely for a fixed sum, making the treatment legally definite and therefore deductable from the sum of the ketubah. Rabbi Yochanan afterwards declared that he had erroneously acted like the `orchei hadayanim, in violation of our mishna. Using this commentary, I have arrived at an understanding of what Rav meant when he wrote that the `orchei dayanim offer advice of the type “do such-and-such”. For had he meant, as Rambam means, that they instruct a person in which arguments to put forth, he ought to have written that they advise the person to “argue such-and-such”. I think, rather, that according to Rav, the prohibition is to advise him to act in some way, as in the case of Rabbi Yochanan and the widow, and the case of Rav Nachman, who advised a woman to forgo her ketubah in Ketubot 86a. Rav might agree, however, that one need not be overly pious and avoid even instruction in wording and presenting arguments. Of course, Rambam forbids even wording and presenting arguments.
Midrash Shmuel quoting Rabbenu Yonah: the mishna is not discussing a case of teaching one to use false arguments, for one who would do so is completely evil and this thing is a great sin, and our tractate is devoted to people interested in matters of piety. It is rather discussing a case of improving the strength and order of arguments that the litigant is already planning on using, going through how they will be received in court and showing him the anticipated outcome. The mishna says one should not do this because it will arouse suspicion.
One thing, at least, is clear according to all the commentaries, and that is the reason for the mishna’s use of the word “like” in “do not act like `orchei dayanim”. Had the mishna simply said “do not be `orchei dayanim” it would have sounded like it is actually forbidden to be an `orech dayanim, and it is not.<sup>37</sup>Rather, it does not befit a pious person to act like they do.
I also think that the wording al ta`as atzmecha, literally “do not make yourself,”³⁸Which we have rendered idiomatically as “do not act like.” as opposed to simply lo tihyeh, “do not be,” is meant to reflect the point made in the abovementioned case of Rabbi Yochanan. There, the Talmud says that he offered his advice because it was his relative that consulted him, and he felt this was a case of “do not turn away from your own flesh and blood” (Isaiah 58:7). He afterwards regretted it and said “we have made ourselves like the `orchei dayanim” because he held that prominent rabbinic figures should not do so. The implication is that were he not a prominent rabbinic figure, he would’ve been correct in doing what he did on account of “do not turn away from your own flesh and blood.” The language of our mishna, “do not make yourself,” is making this point: because of “yourself,” i.e. because you are a prominent rabbinic figure, do not make yourself into an `orech dayanim; otherwise, one may do so. If this is the issue, then it follows that anyone who is not a prominent rabbinic figure may do so even for someone who isn’t a relative, and Rabbi Yochanan only quoted the verse “do not turn away from your own flesh and blood” because otherwise he simply would’ve had no reason to help one party over another, as “who can say whose blood is redder.”³⁹A play on a Talmudic phrase in Sanhedrin 74a.
To sum up, the tanna’s injunction only concerns a prominent rabinic figure, for which reason he used the language “do not make yourself.” One who is not a prominent rabbinic figure need not avoid this even as a matter of piousness, as he is not giving instruction in how to present false arguments. What we learn from the incident with Rabbi Yochanan, who had to quote the verse “do not turn away from your own flesh and blood,” is that otherwise he wouldn’t have gotten involved, not as a matter of piousness but because he had no reason to act to the benefit of one party and loss of another; whereas for a relative, as long as one is not a prominent rabbinic figure, one should act in order to uphold the verse “do not turn away from your own flesh and blood.”
Rashi, however, writes ad loc.: a prominent rabbinic figure is different, because people will learn from his actions and some of them will do this even for non-relatives. If so, the injunction of our mishna would apply to any case involving non-relatives.

Yehuda ben Tabai and Shimon ben Shetach received from them: From Yehoshua ben Perachiah and Nitai of Arbel.

"The judges' advisers (literally, organizers)": They are people that study the arguments and the laws until the people become experts in their cases. As they compose questions and answers: when the judge says this, answer him that; and when the litigant argues this, so should be your answer - as if they are organizing the case, and the litigant is [coming] in front of them. And that is why they are called the judges' organizers - it is as if they organize the cases in front of them. And they warned them from being similar to them; meaning to say to teach one of the litigants an argument that will benefit him and to say to him, "Say this," or "Refute [an opposing claim] in such and such a way." And even if he knew about him that he was the victim and that his fellow's claim against him is false according to what he truly thinks, nonetheless, it is not permissible for him to teach him an argument that will save him or benefit him at all.

And that which [Rabbi Bartenura] wrote at the beginning of his words, "That they arrange, etc." - not that they themselves give reasons in front of the judges, but rather that by their revealing [them] to the litigant - by saying to him, "Do this;" behold, it is as if they are making claims in front of the judges. And see Tosafot Yom Tov.

"Do not make yourself like the judges' advisers": like those people that set up and arrange the claims of a litigant before the judges. As it is forbidden for a person to reveal the judgment to one of the litigants and to say to him, “Do the following so that you will win your case” - even though he knows that [this litigant] should win the case. Another explanation: “Like the judges' advisers” [meaning] like the great judges. And it is referring to a student sitting in front of his teacher – that he should not make himself like the great judges, to speak in front of his teacher as [if he were] someone who is deciding the case. (Orkhei) is an expression [like that used in the term], tribunals (arkaot) of the gentiles (Gittin 9b, 10b), and tribunals of the House of David. And from others, I have heard, “Do not make yourself like the great judges, to force the litigants to come in front of you.”

Introduction This mishnah contains the teachings of Judah ben Tabbai, the first sage of the third “pair”. The subject of his teaching is the proper attitude of the judge to the litigants who come before him.

YOU SHOULD IMAGINE THEM TO BE WICKED. But do not imagine the two of them to be righteous people, because then you will not thoroughly examine their claims and will charitably interpret everything they say without investigating the case in depth. When one imagines them both to be wicked, one thoroughly examines each one’s claims and considers possible avenues of deception, thereby getting to the truth of the matter.
Another possible interpretation. One of the parties has certainly acted unlawfully, and the Talmud considers the other party similarly implicated, as per the passage discussing oaths in court (Shavuot 39a): those standing there then say to one another, “Step away from the tents of these evil men!” (Numbers 16:26), and there also (ibid. 39b): “The oath of G-d will be taken between them” (Exodus 20:10), this teaches that the oath falls on both of them, i.e., even the party in the right, all because he is involved in a case with the criminal party. They are thus both called “wicked.” When they accept the court’s ruling, however, they are both called “righteous,” because accepting a ruling after their quarrel with one another is an act of righteousness on their part—Maharal in Derech Chaim.

Yehuda ben Tabai says, "Do not make yourself like the judges' advisers (orkhei)": He means to say a head, as it is stated in Bereshit Rabbah 23:10, "'And Efron was sitting among the children of Chet' (Genesis 23:10) - on that very day, they appointed him arkhi," meaning to say the head of the judges. And also in the section of "Yaakov sent messengers" (Parshat Vayishlach, Bereshit Rabbah 75:3), "arkhi" is the head of the thieves. And also in Arukh, you will find that arkhi is explained like this there. And the explanation of this is, do not make yourself like the judge's advisers, that [people] should ask you and you tell them the laws; and after they hear it from you, they go to other judges for judgment and they say to them, "The head of the judges has already told us that this is the law." Do not make yourself like them. And from Rambam there is another explanation: "Do not make yourself like the judges' advisers" - He did (not) speak here about someone who teaches false claims to his friend and how to present them, since such a person is completely evil. And it is not necessary to say that a person not do this on account that they will suspect him and speak badly about him, as this is a great sin [and nothing more need be said about it]. Rather, [it is one] that organizes the claims [of someone] and arranges the laws and reveals the verdict [of a case] to an individual - as it is not fitting to do this since they will suspect him and speak badly about him. This [is] like that story of Rabbi Yochanan in Tractate Ketuvot 52b, wherein at the beginning he reasoned, "do not ignore your flesh" (Isaiah 58:7), and at the end he reasoned, it is different with an important man.

And he did not say, "You should claim the following," but rather he wanted to say [by this] that he brings up advice for [the litigant] to do an act like that [case] of Rabbi Yochanan in Chapter 4 of Ketuvot 52b in the case of [the payment for] healing [a man's widow] that has no limits [and so] is payed from the estate of the husband, [wherein] Rabbi Yochanan advised them, "Set a fixed amount [with a physician] for the healing so that it will be something that has a limit." But it should not enter your mind, that he will make as a claim for the litigant words of iniquity and trickery, as such ones are complete evildoers. And see Tosafot Yom Tov.

"they should be like evildoers in your eyes": so that your heart not incline to one of them, saying, “Such and such a one is important, he is; and he would not make a false claim.” Since if you say this, you cannot see him as guilty.

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. Judah ben Tabbai teaches three things concerning the attitude of the judge. The first is that the judge should not be an advocate for either side. If a litigant does not make the best claim that he could make, the judge is not allowed to make such a claim on his behalf. In other words the judge cannot act the part of the lawyer, but he must judge based on the claims actually made. We should note that lawyers were not usual participants in trials in the time of the mishnah. Another version of this teaching is that the judge should not make himself like “the chief of the judges” (in Hebrew there is only a one letter difference between “chief of the judges” and “advocate”, the former beginning with an aleph and the latter with an ayin. The reading “chief of judges” is found in the better manuscripts of the mishnah). This means that a judge should not make himself like the chief justice who does not actually look into the details of the case. Rather the judge has the responsibility to carefully check all of the facts before he makes his ruling. The second two teachings are basically the flip side of the coin of each other. Before the judgement is delivered the judge must examine both parties as if both are guilty. Even if he thinks that one side is telling the truth, he must examine both impartially and with a skeptical eye, for if he favors one side before the trial, justice will not be served. However, when the sides accept the judgement, he must look at both sides as innocent. This may be for two reasons: first of all, the fact that the one found guilty accepts his judgement means that in the end he was willing to do the right thing. His acceptance of the judgement is a form of repentance. Second, the judge can never be one hundred per cent of the correctness of his sentence.

"and when the litigants are before you, they should be like evildoers in your eyes": That your heart should not lean towards one of them, and that you not think that he is (righteous) in his case. As if so, you will never judge a case truthfully, since your heart is unfettered towards this one, and you will not be able to see his guilt. Rather they should be in your eyes as if they were both evil and making false claims. And let not your heart lean to one of them, so that the matter come under the correct light.

"like evildoers": But not [that] both of them be like righteous ones. As, if so, he will not search out their claims and he will judge each one as meritorious and not get down to the truth of the case. But when both of them are like evildoers in his eyes, he will search out the claims of each one, etc., and because of that, he will get down to the truth of the case - Derekh Chaim. And see Tosafot Yom Tov.

"when they received the judgment": such that you should not suspect the guilty party saying, “This one was a robber.” But [rather] say, “maybe he was mistaken and did not intend to rob." And also (another possibility is) if one of them became obligated to make an oath [as a result of testimony], do not say, "He made a false oath."

"and when they are excused from before you, they should be meritorious in your eyes - when they have accepted the judgment": This is a measure of piety, since you know that one of them made a false claim. [Still,] he should not be in your eyes (ever) assumed to be a liar and a difficult litigant. And it is not fitting to suspect him, since he accepted the verdict upon himself and left the court guilty. And one should think that he repented and he doesn't have in mind to do this [again] all the days of his life.

As I would have thought, "Since there is [a reason] to suspect [here], this one is not included in, 'and judge, etc... as meritorious.'" [Hence,] it is necessary [to write this in the Mishnah].