Halakhah к Авот 1:21

Laws of Judges - (Pirkei Avot 1:18) “Rabban Shimon ben Gamliel says: On three things is the world established - on judgement, on truth, and on peace.” Rabbeinu Yonah z”l explains: The explanation cannot be that “because of these three things the world was created,” because the beginning of the chapter said that on three things does the world stand, and these three are not listed there. Rather, first [Pirkei Avot] relates that for three things the world was created, i.e. Torah, Avodah and Gemilut Chasadim. Torah, that it says, (Proverbs 8:22) “God made me as the first of His way...” The Torah says, “I was created before all of the creations and for my sake were all creations created.” Similarly, [the world was created] because of “Avodah” because God chose Israel from all of the nations, and chose the Beit Hamikdash from all of the places, that they should serve Him in it, and for its sake to God create the world. And similarly Gemilut Chasadim, which is the middah of chesed that causes one to be approved before God. Here [Pirkei Avot] states, “...the world is established.” This means that after the world was created it is preserved through these things - that through judges that judge between people does the world continue. Because were it not for law the more powerful would conquer. And similarly truth, like it says in Shabbat 104a, that lies have no legs [to stand on] but truth is the foundation and it is a big pillar for all things. And similarly, peace, as they say in Avot (Pirkei Avot 3:2), “One should pray for the peace of the government, for were it not for the fear of government, people would swallow each other alive.”

And I shall begin by saying that it is forbidden to shame one's friend for an insufficiency in what he possesses — whether in wisdom, strength, wealth, or the like. I shall explain my meaning in all of its details: "wisdom" — telling people that Ploni is not wise. And there is no difference here as to whether it is false or partially true and he exaggerates the actuality. — This is certainly a great sin, in the order of "spreading an evil report." For he demeans his friend by his falsehoods. — But even if it is the absolute truth, have not all the Rishonim "rooted it within us" that lashon hara [is forbidden] even if true! (See Principle I.) And this thing, negating one's possession of a certain eminence, is certainly also in the category of lashon hara. For did the Rambam not write (Avoth 1:17): "Lashon hara is relating one's evils and his blemishes and demeaning a Jew in any way, even if the demeaned one were [indeed] deficient, etc." As he expatiates there, it is called lashon hara if what he says about him is true. (See also what the Rambam has written in Hilchoth Deoth 7:5 to the effect that lashon hara is something, which when it becomes known to men, causes someone to be harmed in his body or in his money or to aggrieve him or to frighten him.) It seems clear, then, that negating one's possession of a certain eminence is absolute lashon hara according to the Torah. For upon reflection we find that this can result in monetary loss or grief, etc.

He also writes there in Law 7: "A Talmid Chacham shouldn't shout when he is talking; he shouldn't raise his voice, but rather speak softly with all the creations (i.e. humans). And when he speaks softly, he should not speak from too far a distance lest he sound haughty. Also, he should precede his friend in greeting. And judge every person with the benefit of the doubt. He should mention his friend's praises and never his friends faults. 'Love peace and chase peace.' (Avot 1:12). If he sees that his words will be helpful and heard — he should speak. Otherwise — he should keep silent... And he should not speak except with wisdom and kindness etc. And he should not converse with a woman in the market, even if she is his wife or his sister or his daughter." And all the more so he should not become accustomed to swears and oaths. Also, he shouldn't eat his meals in a lot of places. And he should distance himself from settlements of fools and from people who are not respectable.

And all this even if the story were about a plain man, who usually was careful not to sin, but sometimes stumbled into it. How much more so if it were about a G–d-fearing man, to whom there applies even more the mitzvah of "In righteousness shall you judge your neighbor" (viz. Rambam on Avoth 1:6 and Rabbeinu Yonah, Sha'arei Teshuvah 218). And he [the hearer] transgresses this and judges him in the scales of guilt, agreeing with the speaker in his demeaning of him! Of a certainty he transgresses the issur of accepting lashon hara.

Traditional sources also seem to discourage the presence of lawyers in beit din in order to preserve the “innocence” of the litigants. For example, the Rama (C.M. 17:5) rules that a Torah scholar should not inform a litigant whether his position is correct, lest the litigant deduce from the information how to fraudulently win his case. The Mishnah (Avot 1:8) prohibits acting as an attorney (k’orchei hadayanim). In his commentary to the Mishnah (ad loc.), the Rambam explains that one should not coach a litigant by teaching him which claims will help him win the case.³Not all commentators accept the Rambam’s interpretation of “orchei hadayanim.” See Rashi and Midrash Shmuel on this Mishnah for a variety of interpretations of “orchei hadayanim.” The Rambam adds that this prohibition applies even when one knows that the litigant deserves to win. Even in such a case, the litigant must present the facts truthfully to the beit din and may not lie in order to ensure his victory. Similarly, the Gemara (Ketubot 52b) discourages Torah scholars from advising individuals (offering “lawyerly” advice) even outside the context of beit din.

A much stronger justification for the common practice might be derived from Rashi (ad. loc. s.v. Hakorei). He explains that the Gemara censures one who “while drinking wine, derives his amusement from words of Torah and reads pesukim aloud to amuse those at the party.” Rashi seems to imply that the prohibition applies only when Torah verses are used in a degrading manner, as the language of the Gemara (ad. loc.) seems to suggest. This gives the impression (unlike Rav Moshe) that as long as the music does not degrade the Torah, there is no prohibition, even if one is not listening to the music in the context of performing a mitzvah (such as rejoicing with a chatan and kallah). This limitation of the prohibition also is implied by the comments of the Rambam (Avot 1:17), wherein he writes, “The Torah forbade turning words of prophecy into songs of baseness and inappropriate things.” This indicates that the prohibition exists only if the pesukim are sung in a degrading manner. If, on the other hand, the songs are not of “baseness and inappropriate things,” it would be permissible.

Rav Gestetner stresses the importance of living in a neighborhood of observant Jews, citing the Mishnah (Avot 1:7), which states, “Distance yourself from a bad neighbor,” and the Gemara (Ketubot 72a), which states, “One cannot live together with a snake.” He also cites the Rambam (Hilchot Dei’ot 6:1), who writes at some length about how one is impacted by his neighbors and community, so one should be sure to surround himself with positive role models. Accordingly, Rav Gestetner concludes, a neighborhood of observant Jews is an entirely different product than a neighborhood that includes those who do not uphold the Torah.

And this commandment that we are obligated to judge is practiced by males, but not by females, as they do not judge. But nonetheless, women are included in the law of payments for everything, though there is a small difference in the claims of married women in well-known things, as we will explain in the places that we mentioned. And [it] is also practiced in every place and at all times. And a court that transgresses it and did not administer justice - if it had the power [to do so] - has violated a positive commandment. And its punishment is very great, as it causes destruction to the world - since the world is only civilized with justice. And it is like they, may their memory be blessed, said (Avot 1:18), "On three things the world stands" - and one of them is justice. And this is one of the commandments that all of the people of the world are commanded more generally, since the civilization of the world is impossible without it.

From the laws of the commandment is that which they, may their memory be blessed, said (Ketuvot 105a) that one who [unnecessarily] prolongs the judgment is included in one vitiating judgement. And that which they said (Mishnah Avot 1:1), "Be deliberate in judgement," so that they not come to vitiation of the judgement. And they, may their memory be blessed, said (Yevamot 109b) that it is fitting for someone judging to consult with someone greater than he, if he is near him. And they said in warning about this matter (Mishnah Avot 4:7), "Anyone who prevents himself from judging - prevents from himself enmity, theft, and the false oath." And all of this is to teach us that the thing requires deliberation and much composure, so that they not err in the decision. As there are many things [involved] in legal decisions, and one must be a great sage in a decision - and it is like they, may their memory be blessed, said (Bava Batra 175b), "One who wants to become wise should engage in monetary laws, as there is no greater discipline in the Torah than them, as they are like a flowing spring." And they also warned us that the judgement of a small coin should be beloved to us like the judgement of a thousand expensive coins, to judge it according to its truth. And because of the weightiness of judgement, they greatly praised the one who can bring a compromise between the litigants. And about him is it said (Zechariah 8:16), "truth and peaceful justice shall you rule" - as this is the judgement of peace. And so too about David does it state (II Samuel 8:15), "and David executed judgement and righteousness (tzedekah, which is also the word for charity) for all of his people" - which is the judgment that also has charity? One can say, a settlement. And the rest of the many warnings that they, may their memory be blessed, warned us about equitability in judgement and the rest of the details of the commandment are scattered in the Order of Nezikin, and are primarily in Tractate Sanhedrin (see Tur, Choshen Mishpat 17).

And this commandment is practiced in every place and at all times by males. And it is also a commandment upon females to listen to the words of [Torah] sages, so that they will learn to know God. And one who transgresses it and does not associate with them and fix their love in his heart and strive for their good and their benefit at times when he has the ability in his hand to do so, has violated this positive commandment. And his punishment is very great, as they are [essential for] the existence of the Torah and a strong foundation for spiritual salvation; as anyone who is with them often will not sin quickly. And King Shlomo stated (Proverbs 13:20), "He who walks with the wise becomes wise." And our Rabbis, may their memory be blessed, said (Avot 1:4), "Become dirty in the dust of their feet." And Ramban, may his memory be blessed, wrote (in his glosses to the Sefer HaMitzvot, Mitzvot Ase 7) that the essence of this commandment is to swear in His name, blessed be He, to fulfill a commandment. And the proof is from that which they said in Temurah 3b, "From where [do we know] that we swear to fulfill a commandment? As it is stated (Psalms 119:106), 'I have sworn to keep Your just statutes.'" And they answered there that it is derived from "to Him shall you cling," as it appears there.

The commandment of investigating the witnesses well: To make a formidable investigation of the testimony and to inquire about it well according to all of our ability, so as to known the root of a thing and its completely exact truth. And from the foundation of this matter, they, may their memory be blessed, said (Avot 1:1), "Be deliberate in judgment." And it is all so that we can reflect on the thing and know the truth about it; and that we not hurry in judgement, lest we kill the innocent and cause a loss of money, because the truth is concealed. And about this is it stated (Deuteronomy 13:15), "And you shall inquire and investigate and ask well, and behold, the thing is correct truth." And anyone who has eyes in his head will observe and see that the multitude of warnings and repetition of the matter in different words that the Torah repeated about this thing is is to properly warn us about the matter; as it is a great thing and a strong pillar upon which the blood of the souls of the creatures depends.