Choosing the dayanim

In Maseches Sanhedrin Daf 23a, the Mishnah outlines a mechanism for forming a panel for a beit din (a Jewish court). According to the Mishnah, each party to the litigation selects one dayan (a judge). The two dayanim chosen by each party then collaborate to select a third dayan. This mechanism is known as “זה בורר לו אחד וזה בורר לו אחד,” meaning “each one chooses one.” Additionally, the Baraita, which serves as an extra source from the sages who authored the Mishnah, emphasizes that this mechanism ensures that “יצא הדין לאמיתו,” a truthful judgment comes out.

Why the losing party accepts the judgment

Rashi explains that “יצא הדין לאמיתו” is achieved because the mechanism for choosing the members of the court guarantees that even the losing party will comply with the judgment. The losing party knows that the dayan he selected will advocate for any meritorious arguments in his favor during the panel’s deliberations. Therefore, the losing party can rest assured that the judgment is truthful, even if it is against him. The explanation Rashi provides may surprise some. After all, we expect judges to be objective and impartial. How, then, can the Talmud justify a judge making the case in favor of the party who selected him?

To understand Rashi’s perspective, we must consider a few key points.

The balance within the court

The first point is that the mechanism balances one party’s partiality with the other’s. Since each party selects one dayan, and each dayan makes a case for the party that selected him, the mechanism achieves equilibrium. The second point, made by the Tosafot, is that although two of the dayanim are partial, the third judge is impartial and can serve as the deciding voice, checking the partiality of the other two judges. The third point, highlighted by the Rosh (Rabbi Asher ben Yechiel), emphasizes that while each dayan selected by a party makes the case for that party, it does not allow them to present far-fetched or implausible arguments.

The dayanim are only permitted to make arguments that have merit. Furthermore, Rashi on daf 32a points out, in a similar context, that even a dayan who, during deliberations, has the role of advocating for one outcome, must vote not in accordance with the arguments he presented but in accordance with the more plausible overall conclusion that comes out from deliberations. In other words, the selected dayanim may be partial, but they must still be objective.

Trust and the legitimacy of Beis Din

Aside from the points mentioned above, I believe the most important consideration is that even if this mechanism compromises the objectivity of the panel, the resulting benefit is the court’s legitimacy. If this process encourages the losing party to accept and comply with a negative judgment, then compromising objectivity is outweighed by the positive impact of legitimacy. Moreover, partiality and objectivity are valuable insofar as they ensure the trust of the parties in the process. But here, injecting some partiality into the beit din actually enhances trust in the panel and compliance with its judgments, whereas pure impartiality may not serve its purpose.

Therefore, partiality, counterintuitively, achieves the same goals that impartiality is intended to accomplish.

Giving each party a voice

Perhaps this mechanism may explain another halacha that puzzles many. The Talmud in Ketubot at 52b condemns the practice of attorneys who advocate before the dayanim in favor of one party and against the other. Naturally, this raises the question of how a party who is not good with its tongue can argue before the court if it has no avenue of hiring an attorney to do it for them. But under the mechanism of “each one chooses one,” the Talmud in Ketubot is no longer puzzling. Although a party should not hire an attorney to advocate for him, he may choose a dayan who, in addition to the role of adjudicator, also serves as an advocate for him.

This dual role of the dayan helps ensure that the party’s arguments are presented effectively while still maintaining the legitimacy and integrity of the court.