with a select treasury of commentaries on all levels of Torah interpretation
Chapter 1 Mishna 8
with select commentaries
Commentaries used in this translation:
Rashi Commentary (1040-1105)
Rambam Commentary (1135-1204)
Rabbi Ovadiah of Bartenura Commentary (1445-1515)
Tiferet Yisrael commentary (1782–1860)
Rabeinu Yonah (1180-1263)
Derech Chaim - Maharal of Prague (1525-1609) (hebrewbooks.org/14193)
Biur HaGra of Rabbi Eliyahu of Vilna - (1720-1797)
Rabbi Avraham Azoulai commentary - (1570-1643)
Rabbi Chayim Yosef David Azoulai (Chida) commentary - (1724-1806)
Chatam Sofer commentary - (1762-1839), along with Ktav Sofer, and others
Ben Ish Chai commentary - (1835-1909)
and many more..
Commentary Level:
- Min - (level 1) for basic commentaries as relating to the plain meaning (Pshat).
- Med - (level 2) elaborates more into the theme.
- Max - (level 3) deeper in, Maharal of Prague.
- Max+ - (level 4) more themes in the text.
- ShortMix - (recommended) short version of level 4.
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Chapter 1 Mishna 8פרק א משנה ח
| Yehuda ben Tabai and Shimon ben Shetach received [the Tradition] from them. Yehuda ben Tabai would say: "Do not make yourself like a 'legal advisor'; and when the litigants stand before you, they should both be as wicked in your eyes; and when they depart from before you, they should both be as meritorious in your eyes, when they have accepted the judgment." | 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 |
Tiferet Yisrael - "they should both be as wicked in your eyes" - suspect that their claims are false and perhaps you will catch them in their words.
Bartenura - "they should both be as wicked in your eyes" - do not turn your heart towards one of them thinking "he is an important person and would not claim falsely". For if you do this, you cannot see in him fault.
Ruach Chaim - for in examining the witnesses, sometimes one needs to employ strategies and deceptions to trick the witnesses in order to extract the full truth from their mouths. But one must do this with great wisdom so that the witness does not notice this and so he won't tell himself: "the judge is trying to trick me, thus it is permitted and I will do the same". For he does not realize that this is permitted only for the judge but not for him, and he sins.
Tiferet Yisrael - "and when they depart from before you, they should both be as meritorious in your eyes" - do not suspect the claimant was a thief or the defendant swore falsely. For how great is the punishment for "suspecting a kosher person" (choshed b'kesharim) (Shab.97a), and how great is the reward for judging your fellow to the side of merit (Shab.127b).
Rashi - "when they have accepted the judgment" - since they accepted the judgment, and one was obligated to swear and he swore and left. Don't suspect him in your heart thinking he swore falsely.
Sforno - even if you found out they both lied or one of them lied, they should not be suspect in your eyes to sin. For sometimes a person claims a lie not in order to steal from his fellow but rather to buy some time, as they said: "he is trying to delay thinking when I have money, I will pay him" (Bava Metzia 2b).
Rambam - "legal advisor" - these teach people the legal claims and laws until a person is proficient (baki) in his court case. They compose questions and answers. "When the judge says this, answer this", "when the claimant says this, answer this". As if they are arranging the court case and the two sides are before them. Thus, they are called "legal advisors" (archei dayanim) as if they arrange the court case before them. The sages exhorted us not to resemble them, i.e. not to teach one of the two litigants a claim which will help him saying: "say thus", or "deny in such and such a way". Even though you know he is wronged and the other person is lying.. Nevertheless, it is not at all permitted to teach him a claim which will save him and help him.
Rabeinu Yonah - "legal advisor" - this is not referring to a case where one instructs his friend to blatantly lie. Because that would make him a completely wicked person and it is not necessary to say that one should not do this for it is a great sin. Rather, the explanation is that even if one does not teach him to lie, and he merely organizes his claims and arranges the laws before him and explains to him his judgment, nevertheless, it is not proper to do this. For people will suspect him and speak bad of him. This is as the case of Rabbi Yochanan (Ketuvot 52b) who initially thought to help his relative citing the verse: "from your flesh (relative), you shall not hide" (Isaiah 58:7) but then abstained saying "an important person is different" (for it causes a desecration of G-d's Name).
Maharal - we already said that the mussar of these sages is on things which are necessary and of primary importance. Yehuda ben Tavai saw that it was a great stumbling block for the public that which the judges were doing and even many great sages and tzadikim as brought in the talmud (Ketuvot 52b):
"Rabbi Yochanan said: 'we made ourselves like legal advisors (orchei dayanim)'", and likewise later there: "Rabbi Nachman said 'we made ourselves like legal advisors (orchei dayanim)'" (Ketuvot 86b).
Thus, Rav Nachman said on himself: "we made ourselves like legal advisors (orchei dayanim)". Due to this, a great exhortation is necessary. For with merely a few words one becomes "a legal advisor". And this is forbidden in mishpat (judgment) and din (justice), for it is a very serious matter to distort mishpat and din. And because this sin very much needs exhorting so that one does not stumble therein, therefore Rabbi Yehuda ben Tabai comes on this...
Thus, this pair of sages came to rectify judgment which is extremely necessary, to not be like the "legal advisors (orchei dayanim)". For this needs exceedingly great guarding. Since it is of great importance in judgment. Therefore, they exhorted to not cause the judgment to come out distorted.
Likewise it is very common for a judge to stumble thinking one of the two litigants to be more righteous than the other (thus he said "when the litigants stand before you, they should both be as wicked in your eyes").
Similarly, for the words of Shimon ben Shatach, to "examine the witnesses extensively". For their testimony can vary in many ways. This matter is a great foundation. For sometimes the witness adds something in his testimony or leaves out one word in which everything depends [thereby changing the whole testimony].
So too, the judge needs to be careful in his words when interrogating the witness. For through the question, the witness can deduce the intent of the questioner and correct his words to strengthen his lie. This matter does not need explanation. Thus, these two sages came to rectify justice with something which is an extremely great and primary matter...
FULFILLING JUSTICE IS LOVE AND FEAR OF G-D
Fulfilling justice is a close branch of love of G-d. For he who loves G-d, loves His judgments. For "Judgment belongs to G-d" (Devarim 1:17).
(Rashi there: "Whatever you unjustly take from someone, you will oblige Me to return to him. Consequently you have perverted a judgment against Me, San. 8a").
Therefore, due to love of G-d, he does G-d's justice truthfully . For this is very much G-d's will. Likewise G-d hates wrongdoing and falsehood in judgments, and it is an abomination in His eyes. Therefore, the G-d fearing person fears from G-d to distort the word of justice. The mussar of this pair of sages is also a further branch of love and fear of G-d...
ORDER OF THE MISHNAS
We already explained earlier how the flow of mussar from these sages follows one after the other until they are all connected to each other. The words of this pair of sages is likewise connected to that of the previous pair. For the previous pair rectified a man's relation with the public near to him. Thus he said: "Make for yourself a Rabbi, acquire for yourself a friend and judge every person to the side of merit". All this is relevant (shayich) to a man. Likewise, the previous pair before rectified one's home properly.
For one needs to first rectify himself. This was the tikun of Antignos of Socho. Afterwards, he needs to rectify his home. This was the tikun of the first pair (after Antignos). And afterwards, the rectification with the public outside his home but which is relevant (shayich, i.e. near) to him like the Rav (teacher), the friend, and other people. This was the tikun of the second pair. For the Rav and friend are very important to a man. Afterwards, the third pair rectified how a person's conduct, such as the judge should be towards the public. For the judge judges and establishes judgment on the public.
The earlier ones rectified a man regarding his conduct with the public greater than him, as explained. This pair, and also the next one, comes to rectify how the Gadol (great man) should conduct himself towards the public which is below his level.
A Gadol (great man) is on two ways. One is the judge. This pair rectified him.
Two, the baal serara (person of authority, ex. community Rabbi). The next pair came to rectify him that so that everything relevant to a man is rectified...
Chida - Zeroa Yamin - "do not make yourself like a 'legal advisor'" - besides the plain meaning, there is possibly also a hint of mussar rebuke to a man. Namely, do not seek arguments to diminish your sin and make it smaller with empty and patched up claims, hanging it with cobwebs like the "legal advisors" do. For even though the defendant's obligation is clear, they seek ways to justify him with various claims and fine distinctions. For this is the primary wisdom of the yetzer hara (evil inclination), to diminish man's sin and seek merits for him. And as the early ones explained on the verse: "And the L-ord saw that the evil of man was great in the earth, and every imagination of his heart was only evil all the time" (Gen.6:5). "only" is a mi-ut (coming to exclude), i.e. to diminish the evil (try to make it smaller than it really is).
This is not the way of a baaal nefesh (upright person). On the contrary, if he committed a small sin, it will be very big in his eyes. For he transgressed the word of Hash-em, G-d of the world, and in a hair's breadth, there is already no medicine for his illness. It is a kal v'chomer (logical inference) from flesh and blood kings of the land who strike down, punish, and execute for the slightest transgression of their word.
This is what king David said: "For I relate my iniquity; I worry about my sin" (Tehilim 38:19), the word "agid" (worry) is like "devarim kashim k'gidim" (things hard as sinews). Namely, "my sin agid", in my eyes it is very severe. Even on a [minor] sin I am very worried. For every day I worry anew in that the sin was to the King of kings. The holy Tanna hinted this in his mussar "do not make yourself like a 'legal advisor'" - yourself specifically, in something which touches on yourself, "do not be a legal advisor", to seek justifications.
I am teaching you that when the litigants are standing before you, they should be in your eyes as wicked. If so, you yourself are always a baal din (litigant) standing always before G-d, as written: "a man is judged every day". If so, you are like a Rasha (wicked man). And even if you repented and received sufferings, don't trust in this. For "they are like meritorious", implying "like" but not really meritorious (zakaim mamash), even though they accepted the judgment. So too, you should always suspect that you are not meritorious (zakai, i.e. always try to improve)...