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Judaism: Mishpatim: Finding the Truth

Listening, thinking, debating - what are judges to do, according to the Torah?
Published: Thursday, February 07, 2013 6:24 PM



The Heart of an Argument


In halakhic jurisprudence there is a rigorous protocol for the conduct of a Jewish court on the day of a capital trial.

Halacha requires that the case be heard in expedited fashion and with an eye toward finding the truth. As soon as testimony is given and cross examined, the court divides into pairs and reviews the matter. On that same day before the sun sets they convene again and each member of the court states his opinion and his arguments, all of which are carefully recorded by the court scribes.


The court retires and members of the court spend the night reviewing their opinions and ensuring that they don’t forget any detail. The next day the court reconvenes and each member restates his opinion and his supporting arguments. If anything was forgotten overnight the scribes read from their meticulous notes. At this point a final vote is taken and the verdict is determined by a majority of two. If the yeas outvote the nays by two, the defendant is found guilty, ensuring a swift, but just verdict.
 

However, one particular aspect seems peculiar. Why must the judges review their opinion all night to guard against poor memory if all was recorded in detail by the scribes?


The answer lies in the complexity of an argument. Arguments are constructed on many levels. On the simplest level we have your opinion; the conclusion of all your analysis and thought. If we want to dig deeper, we explore the thought process that led to your conclusion. Here we encounter multiple junctions where you made choices in constructing your argument. There were questions that could have been answered or permitted to stand, postulates that could have been accepted or refuted. Good arguments can be made for either position and you chose the arguments most persuasive to you.


You certainly presented the reasons for your choices and explained precisely which logic swayed you and why, but ultimately it comes down to a decision. Somewhere in the complex workings of your mental temperament you were inclined toward the path your chose. That choice resonated with your inner depth, which is why it swayed you intellectually.


This inner inclination, this internal favoring of your position is not irrational, it is supra rational. It appeals to the broadest and deepest elements of your intellect, the dimensions that cannot be articulated in words for they are far too vast and complex for mere words. We each experience this level of inclination. It is not sufficient to base a position on it, but it is the reason we are persuaded by one of two logical choices when they are of equal weight.


Each judge formulates his opinion on the basis of sound logic, but a logic that appealed to him because it synchronized with his internal rhythms. For the judge to issue his opinion in the final vote it is crucial that he be plugged into his internal rhythm, the heart of his argument. This couldn’t be captured by the scribe because it cannot be articulated in words. The scribe recorded the arguments, but not why these arguments appealed to the judge. The only way the judge can hold on to his rarified inclination is to latch onto it all night long and hold it in firm grip when he arrives in the morning. The heart of an argument cannot be captured on paper; it can only be carried in the well of the heart.


The Soul of Debate


This helps lend perspective to a very interesting teaching about the format of debate in Jewish courts. The Torah enjoins, “Thou shall not respond to a debate, to sway.” There are multiple ways to understand this injunction and most were incorporated into the corpus of Jewish law.


One interpretation that caught my attention was from Rabbi Moshe Sofer, the Chassam Sofer, who understood the injunction as a precaution to judges not to debate for the purpose of convincing others, but to open their minds to new possibilities.


The first step in the process of jurisprudence is analyses and debate, during the course of which, differences of opinion were certainly aired. Comes the Torah and tells us, do not exchange opinions in the hope of recruiting others to your view, but on the contrary to examine other points of view and see if they are more compelling than your own. If you conclude that your view carries more validity, your exchange will have served to strengthen your position, but if you conclude that the other opinion is correct, you will have gained immensely from your exposure to it.


This is an uncanny insight into the utter frivolity of debate. In our culture it is commonly assumed that the winner of a debate has the stronger argument, when in fact the winner was more skilled in demolishing the opponent’s argument. Debates are useless for establishing facts because interlocutors listen to their opponents with a view toward refuting them. They are not open to the possibility of the other being correct. Their purpose in debate is to demonstrate the folly of every view, but their own.
Such debates do little to establish facts. If this is the nature of debate in the Jury Room it does little to serve justice. On the contrary it merely serves to entrench already hardening positions. The Torah enjoins judges to listen to another’s opinion to evaluate it, not to sway the other. The verse reads thusly “Don’t respond to a debate [in order] to sway [others].


Our earlier point that every argument is fueled by an internal temperament that inclines us in one way over another, further enriches the importance of this directive. When you debate in order to demolish your opponent you listen with a combatative ear. When you listen to an argument because you want to refute it you cannot appreciate the supra rational human spirit that constructed the argument. You hear the points, but not the person behind them and so long as you can’t feel the person it is difficult to be fully swayed to his/her point of view.


Listening to the argument with an open mind and heart enables us to embrace the person behind the argument and thus get a sense of the supra rational source of the argument. Only in this way is it possible to truly relate to the points made on the intellectual level and to embrace them.


The Torah’s prohibition of debate for the sake of debate is a tacit recognition of the folly of such debate. There is no point in airing a view that no one is positioned to hear, consider or be swayed by.

The Torah mandates debate, not for the purpose of swaying, but for the purpose of listening. Not for the purpose of rejecting, but for the purpose of finding the truth. Only in this way can all opinions receive a true hearing. Only in this way can the debate lead to a strengthening of unity rather than fracture in the court. Only in this way can the court speak with a unified voice.

Only in this way can the truth emerge and truth is the hallmark of G-d.