Yehuda ben (son of) Tabbai and Shimon ben Shatach received the transmission from them. Yehuda ben Tabbai said: Do not act as an adviser among the judges. When the litigants are standing before you they should be in your eyes as guilty. When they are dismissed from before you they should be in your eyes as innocent, provided they have accepted the decision."
On the surface, the mishna commands the judges not to act as advocates for one or the other side and to treat both litigants with suspicion throughout the proceedings, in order not to be taken in by subterfuges or ruses that litigants often employ but to rise above it at the conclusion of the lawsuit, at which time the judges return to function as ordinary citizens that must afford all their fellows trust and fellowship.
It is ironic that the most common form of Beis Din that functions at our times is precisely the one in which two litigants select two advocates and the the two advocates select the third judge (Zabal). Whereas in theory a "set beis din" has primary jurisdiction, in the USA, at least, either litigant can demand Zabla and then subvert the process by either manipulating the selection of the dayanim or insisting on an unscrupulous individual with who no dayan of integrity would consider sitting as Zabla. Clearly, the Beis Din system cannot function as intended without coercive powers, which the secular authorities do not allow it. In addtion, it suffers from many other deficiencies relating to both conceptual and procedural weaknesses, as compared to the secular system of law. The Beis Din system is beginning to address some of the precdural deficiencies with several communities setting up independent Batei Din that focus on some of these issues. These include a lack of specialization among dayanim (no family courts versus commercial law etc), unsufficient professionalism (talking about other cases in the presence of other litigants, taking cell phone calls, coming late, inappropriate settings in which to hold sessions, poor scheduling etc), absence of the process of discovery (no way to corroborate the facts), no fear of perjury by the litigants, areas of law which are relatively undeveloped and therefore are difficult to apply (hilchos shcheinim, for example, are hard to relate to the complexities of modern zoning and urban planning), and insufficient use of expert testimony to sort out conflicting claims (due both to the expense and insufficient recognition of the limits of dayanim's understanding of complex fileds). Even more serious is absence of entire areas of the law that secular law possesses and religious law does not.
Harav Chaim Kohn, an experienced Rov and dayan, wrote an article etitled "Boundaries:The Power of Choshen Mishpat in Jewish Society" in the September 29, 2008 issue of Hamodia. In it, he points out the surprising fact that Jewish Law leaves unaddressed almost the entire area of "white collar crime". He writes: "Thus, for example, according many opinions,. Mideoraisa, there is nos et of rules for what isknown as garmi (indirect) damages...The very fact that the Torah does not incorporate these obvious acts of tort into the official code of penalities is an indication that the general prohibiton of deceit and damages ought to affect the nefesh so strongly that it will despise "white collar" crimes." I must clarify that even though there are rabbinic enactments to cover some of these areas partially, they carry less power and are harder to implement in practice, and there are still many issues that are not fully covered.
He argues that thess lacunae, that at one time did not need to be filled because the general level of behavior was so high that such acts were unthinkable, are filled by rabbinic enactments in later generations. A logical conclusion would be that judges in the times of old did not need to suspect the litigants of certain kinds of behaviors.
It seems that our mishna, on the contrary, advises the dayanim to assume the worst about the litigants, and that it refutes such an explanation.
Why, then does Jewish Law leave large areas of potential criminality not covered? I have previously argued that it depends of the power of the tribe, King or Shofet to address such abuses and that formal law, the one that we find reflected in the Choshen Mishpat was always meant to be supplemented by laws like "goel hadam", or the tribal law system, echoes of which we find amptly reflected in Tanach. Our current system then is broken as a consequence of the bitter exile, like so many other things in Jewish life.
For this reason we ask every day in the Shmone Esrei that Hashem should return our judges like in the beginning and our advisors (to the King) like in the beginning, for only in the fusion of the two systems can true justice be found.
