Babylonian Talmud

Rodkinson 1918 — source 15, scan section 12

according to one it must, and according to the other it must not. Shall we assume that there are three Tanaim who differ con- cerning arbitration ? One holds: Three are needed ; the second, two; and the third, that even one is sufficient. Said R. Aha b. R. Ekha, according to others R. Yema b. Chlamia: He who says two are needed holds that even one is sufficient ; and only lo THE BABYLONIAN TALMUD. to the end that they should be able to testify to this case as wit- nesses did he say two. Said R. Ashi: Infer from this that an arbitration does not need a sudarium ; for if it should be neces- sary, why should not the one who maintains that three are needed be satisfied with two and a sudarium ? The Halakha, however, prevails : An arbitration needs a sudarium. The rabbis taught : Even as a strict law needs three, so is it with arbitration. However, when the decision is already given in accordance with the strict law, an arbitration cannot take place. R. Eliezer, the son of R. Jose the Galilean, used to say: It is prohibited to mediate, and he who should do so sins; and he who praises the mediators despises the law, as it is written [Ps. x. 3]: " The robber blesseth himself when he hath despised the Lord." But it may be taken as a rule that the strict law shall bore the mountain, as it is written [Deut. i. 17]: " The judgment belongs to God." And so was it said by Moses our master. But Aaron (his brother) loved peace, ran after it, and used to make peace among the people, as it is written [Mai. ii. 6] : " The law of truth was in his mouth, and falsehood was not found on his lips; in peace and equity he walked with me, and many did he turn away from iniquity." And R. Jehoshua b. Karha also said: Arbitration is a meritorious act, as it is written [Zech. viii. 16]: " With truth and the judgment of peace, judge ye in your gates." How is this to be understood ? Usually, when there is judgment, there is no peace ; and vice versa. It must then be said that an arbi- tration is a judgment which makes peace. So also was it said about David [II Sam. viii. 16] : " And David did what was just and charitable* unto all his people." Here, also, " just " and " charitable " do not correspond; as if just, it could not be called charitable, and vice versa. Say, then, it means arbitration, which contains both. The first Tana, however, who said above that arbitration is prohibited, explains the passage thus: He, David, judged in accordance with the strict law — he acquitted him who was right, and made responsible him who was so, according to the law; but when he saw that the culpable one was poor and could not pay, he used to pay from his pocket. Hence he did judgment to one and charity to the other. Rabbi, however, could not agree with such an explanation, because of the expression, * Zdakha is the term in Hebrew, which means also charity. TRACT SANHEDRIN (SUPREME COUNCIL). ix " unto all his people " ; and according to the above explanation, it ought to be " to the poor." Therefore said he: Although he did not pay from his pocket, it was counted as a charitable act that he delivered a theft out of the hands of the defendant. R. Simeon b. Menasia said: If two persons brought a case before you, before you have heard their claims, and even there- after, but you are still not aware to whom the strict law inclines, you may say to them: Go and mediate among yourselves. But after you are aware who is right according to the strict law, you must not advise them to mediate, as it is written [Prov. xvii. 14] : " As one letteth loose (a stream) of water, so is the begin- ning of strife; therefore before it be enkindled, leave off the contest " ; which means, before it be enkindled you may advise a mediation, but not after you know with whom the law is. Similar to this is: If two persons came with a case before you, one being mighty (who can harm you) and the other common, you may say to them, " I am not fit to judge between you," so long as you have not heard their claims ; or even thereafter, not knowing as yet to whom the law inclines. But you must not say so after you are aware; as it is written [Deut. i. 17]: " Ye shall not be afraid of any man." R. Jehoshua b. Karha said : Whence do we deduce that if a disciple were present when a case came before his master, and saw a defence for the poor and an accusation for the rich (which his master might overlook), he must not keep silence ? From the verse just cited. R. Hanin said: One must not keep in his words out of respect for any one; and witnesses also must be aware for whom they testify, and for whom their testimony goes. And who is he who will punish them for bearing false witness ? As it is written [Deut. xix. 17] : " Then shall both the men who have the controversy stand before the Lord." And the judge must also be aware of same, as it is written [Ps. Ixxxii. i]: "God standeth in the congregation of God; in the midst of judges doth he judge." And so also it reads [II. Chron. xix. 6], which was said by the king Jehoshaphat: " Look (well) at what ye are doing; because not for man are ye to judge, but for the Lord." And should the judge say: Why should I take the trouble and the responsibility to myself ? — therefore it is written at the end of this verse: "Who is with you in pronouncing judg- ment." Hence the judge has to decide according to what he sees with his eyes. 12 THE BABYLONIAN TALMUD. What is to be understood by final judgment ? Said R. Jehu- dah in the name of Rabh : When the judge is able to pronounce : You, so and so, are guilty, and you, so and so, are right. Said Rabh : The Halakha prevails with R. Jehoshua b. Karha. Is that so ? Was not R. Huna a disciple of Rabh, and his custom was to question the parties of a case before him : Do you desire strict law, or arbitration ? Hence we see that he did not begin with mediation ; and R. Jehoshua said that mediation is a meritorious act. R. Jehoshua, with his statement, means also to say: Ask the parties which they like better. But if so, it is the same as what the first Tana said {i.e., it is prohibited to arbitrate after the conclusion, but not before the case is begun) ? The difference between them is — according to R. Jehoshua it is a meritorious act ; and according to the first Tana it is only a per- mission for the judge, but not meritorious. But then it is the same as R. Simeon b. Menasia said. There is also a difference, as according to the latter we must not advise an arbitration after hearing the claim, which is not according to the former. All the Tanaim mentioned above differ with R. Thn'hum b. Hnilai, who said: The above-cited verse [Ps. x.] was said concerning the golden calf [Ex. xxxii. 5]: "And when Aaron saw this."