BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel



RABIN MISHNAH STUDY GROUP


Bet Midrash Virtuali

TRACTATE AVOT, CHAPTER ONE, MISHNAH EIGHT:

Yehudah ben-Tabbai and Shim'on ben-Shataĥ received [the tradition] from them. Yehudah ben-Tabbai says: Do not turn yourself into a lawyer; when the litigants are standing before you they should be guilty in your eyes and when they leave your presence they should be innocent in your eyes, since they have accepted the judgement.

EXPLANATIONS:

1:
We have now reached the later years of the reign of Alexander Yannai - from around the year 90 BCE till after his death in 76 BCE. And we may add onto this the reign of his successor, Salomé Alexandra, 76 BCE to 67 BCE. All in all a period of around 25 years.

2:
There is considerable confusion surrounding the two personalities who are the subject of our present mishnah. This is probably caused by the fact that one of them, Shim'on ben-Shataĥ, was a very forceful personality. We have had occasion several times already to mention the mishnah Ĥagigah 2:2 (see Avot027 in the Discussion). According to the template established in that mishnah Yehudah ben-Tabbai was the President of the Sanhedrin while his partner, Shim'on ben-Shataĥ, was the President of the Court. However, to both partners, in our present mishnah and the next, are attributed sayings which are legalistic in nature and seem appropriate for a President of the Court.

3:
This being the case, we should not be too surprised when we find that there is a suggestion in the Gemara [Ĥagigah 16b] that the roles should be reversed:

[In the case of] the first three pairs, those who said 'not to lay hands' were Presidents [of the Sanhedrin] as were those of the last two pairs who said 'to lay hands'. The others were Presidents of the Court. This is the opinion of Rabbi Me'ir; but the rest of the sages say that Yehudah ben-Tabbai served as President of the Court and it was Shim'on ben-Shataĥ who was President of the Sanhedrin.

(For a better understanding of 'laying hands' see Avot026, Explanation #6.)

4:
Apparently this reversal of roles can be attributed to a judicial incident in which Yehudah ben-Tabbai was involved in a miscarriage of justice. When we studied Tractate Sanhedrin we encountered the judicial concept of perjured witnesses or conspiratorial witnesses. For a full understanding of the concept please review the explanation given in Sanhedrin059, Explanation #5. In brief: when it becomes apparent to the court that a pair of witnesses have conspired to deceive the court in order to ensure the conviction of the accused, the Torah [Deuteronomy 19:16-19] stipulates that "you shall do to him [the conspiratorial witness] what he had conspired to do to his brother". In other words, whatever penalty the accused stood to suffer had he been found guilty because of the perjured evidence that same penalty shall be meted out to the perjured witnesses.

5:
The Gemara [Ĥagigah 16b] recounts the following:

Rabbi Yehudah ben-Tabbai says: "In very truth I sentenced someone to death because of a conspiratorial witness". This was contrary to the teachings of the Sadducees who claim that conspiratorial witnesses can only be executed if the accused had already been [wrongfully] executed. Shim'on ben-Shataĥ retorted: "In very truth you shed innocent blood! For the sages say that witnesses may be punished as conspiratorial only when both are guilty..." Yehudah ben-Tabbai immediately took upon himself never to to adjudicate unless Shim'on ben-Shataĥ were present! And throughout the rest of his life Yehudah ben-Tabbai would visit the grave of that executed person and his wailing was thought by the people to the a wailing from the grave. He told them, "It is my voice..."

What is important here as far as our present mishnah is concerned is that Yehudah ben-Tabbai, whatever his official role may have been, seems to have accepted Shim'on ben-Shataĥ as a superior authority.

6:
We may now turn our attention to the statement attributed to Yehudah ben-Tabbai in our present mishnah. Clearly his advice is addressed to those sitting in judgement. A judge should not play the part of a lawyer: it is not the task of the judge to instruct the litigants how to plead and what legal arguments to put forward; it is the task of the judge to evaluate the evidence presented. The lawyers mentioned in our mishnah are not the same as the lawyer (attorney) that we know from modern western jurisprudence.

7:
Rabbinic jurisprudence does not give any official recognition to the role of the lawyer: the examination of both the litigants and the witnesses should be done directly and the litigants must set forth their claims in their own words. The lawyers mentioned here are "shysters" who teach litigants and witnesses how to best present their case: "If the judge asks you this you should answer him thus, and if the other guy claims that then you should respond thus." [Rambam, Mishnah Commentary] Their concern is the welfare of their client, not the emergence of the truth. The prime concern of the judge must be that justice be done. (We shall return to the investigatory role of the judge in the next mishnah.)