The third perek of Sanhedrin begins much like the first: monetary laws require a Beit Din of three judges. The Mishnah continues by explaining the process of how these judges are selected. The litigants first each nominate a judge. There is a debate how the third judge is selected. R’ Meir explains that the litigants together select a third judge, while the Chachamim understand that the elected judges select the third judge on their own. The Bartenura explains that the Chachamim maintain this position so that the third judge is not swayed by either of the parties.
Why are the judges selected in this manner? The Gemara (23a) explains: “since this one selects one judge and that one selects one judge and they both select another, the judgement will come out in truth.” What does this mean and why?
Rashi explains that the Gemara means that the litigants will comfortably uphold the ruling. The party that was ruled against will reason that since he selected one of the judges, if there was something in his favour that judge would have raised it. This is indeed the explanation of the Rivan as quoted by the Tosfot.
According to the simple reading, the Gemara was referring to the judgement itself and not the parties’ acceptance of it. Yet Rashi does not present the simple understanding. The Bach (13:8) explains that Rashi was compelled by two reasons. Firstly, judges are always obligated to pursue the truth and judge truthfully. How they were nominated should be irrelevant. Also the language of “the judgement will come out in truth” is strange; it should have said, “They will be able to judge a true judgements”. Consequently Rashi understood it was referring to litigants’ acceptance of the judgement.
Rashi continues that the judges will be able to endeavour to find favourable positions for each party since both parties selected them. What does this mean?
The Tur (13:3) notes that it appears from the language of Rashi that each of the dayanim must engage in finding positive arguments of the person who selected them. Indeed, he cites the Ramah who maintains this position.
The Tur however continues citing the Rosh that people have erred in this understanding of Rashi. Consequently, they have selected dayanim that are skilled in finding speculative arguments in their favour to sway the judgment. This is however mistaken. In the beginning of his comments when Rashi was explaining from the perspective of the litigants, Rashi was only explaining from the perspective of the litigants; they would think that their dayan would fight for their cause even in an unjust manner. In truth however the dayanim should not raise positions unless they are convinced of its truth otherwise it would be considered perverting justice. Instead, as explained by the continuation of Rashi, it is more that since the dayan was selected by one of the parties, he is more understanding of his position and if there is a genuine claim it will not be overlooked. The third dayan is then able oversee the deliberation and adjudicate so that correct and true ruling is delivered.1
1 This reading of the Rosh is as explained by the Bach in his first explanation, based on the version of the Rosh as quoted in the Tur. The other understanding however is that the Rosh explained that Rashi is only explaining from the perspective of the litigants. The continuation of the Rosh that discusses how the selection process will ensure that no claim is overlooked, is the Rosh’s own explanation that argues with Rashi. The advantage being that we are not relying on a position that each party will be thinking that “their” judge will stop at nothing to act in their favour.
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