Or HaChaim on Deuteronomy 1:16/אור החיים על דברים א׳:ט״ז

1 בעת ההיא לאמוד, at that time, saying, etc. The word לאמור, as in many instances, indicates that the words to be communicated were not intended to be literally these words and immediate. In this instance Moses did not command the judges to say specific things; he informed them that an essential part of the judicial process was to listen to the arguments of a litigant only when the opposing side was present.

2Perhaps Moses also wanted to hint at something we have learned in Talmud Jerushalmi Sanhedrin 3,8. We are told there that when Rav Hunna watched litigation and observed that one of the defendants did not argue a point in his favour which he could have argued (out of ignorance) he interfered in the proceedings and drew the defendant's attention to an argument he should use. He based himself on Proverbs 31,9: "open your mouth, speak righteously." This is precisely what Moses may have alluded to when he said לאמור, "to say." No steps must be neglected if they help to establish true and fair judgment.

3Another meaning of the word לאמור may be related to something we learned in Sanhedrin there and which is reflected in a ruling by Maimonides in chapter 21 of his treatise Hilchot Sanhedrin. Here is what he writes: "The judge must listen to the arguments of both litigants and repeat them as it is written in Kings I 3,23: 'the king said this woman says: "my son is alive and your son is dead," whereas this woman says: "my son is alive and your son is dead."' [The verse proves that Solomon himself repeated the arguments of both litigants. Ed.] This is what Moses alluded to when he said לאמור, i.e. that the judges themselves have to repeat the arguments of the litigants. The words לאמור שמוע are to be read together and mean that the judge has to articulate what he has heard from the litigants.

4שמוע בין אחיכם ושפטתם צדק, "listen to your brethren so that you can judge fairly." This whole verse is problematical. How could the judges arrive at a fair judgment unless they had first listened to the arguments of the litigants? Secondly, why did the Torah not simply write an imperative such as שמעו, instead of writing the word שמוע in the infinitive? Clearly, Moses' intention was to make the listening to the litigants' argument an ongoing rather than a one time process. The judges should not give way to the feeling that they had already listened to the litigant enough times so that they are sick and tired of hearing the same thing again and again. There are two aspects to the matter. 1) The judges should not display reluctance to hear renewed arguments by a litigant who claims that he has another point in his favour. 2) The judges should not postpone continuation of the hearing to another date as they are tired of hearing anymore on that particular day, but the proceedings should be wound up in one session if possible. Basically, the subject Moses instructs the judges on is what is called ענוי הדין, postponement of sentence.

5Moses also wanted to warn the judges to be astute enough to detect from between the lines of what the litigants had to say whether they spoke truthfully. It is true that the verdict must be based on what the litigants said (and not on what they did not say or how they said it). If it became clear during their testimony and from their demeanour that the truth appeared to be the reverse of what they actually said, then Moses instructed the judges שמוע בין אחיכם, to listen to what is the difference between what the litigants say and what is obviously a distortion. This would enable them to ושפטתם צדק, "to arrive at a fair verdict," i.e. what appears to the judges to be the true state of affairs. On occasion, such judgment may appear to contradict what is written in the lawbooks. A judge cannot rule fairly except if the verdict is in line with his perception of the truth. The word שמוע addresses itself not merely to the ears of the judge but also to his brain.

6Still another meaning of these words is based on what we learned in Makkot 6 that a court must not accept testimony from the mouth of an interpreter but that the judges must understand and be fluent in the language of the litigant who appears before them. This is implied in the words בין אחיכם, "directly between your brethren."

7Yet another meaning of the words בין אחיכם is to warn the judge not to appear to pay more attention to one of the litigants, to appear to look at one litigant while avoiding looking at the second litigant, etc. The judges must project absolute neutrality in their demeanour vis-a-vis both parties. שמוע בין means that if a judge has occasion to raise his head, he must do so in the direction of both litigants. If, on the other hand, he has occasion to lower his head, he must also do so in equal measure vis-a-vis both litigants.

8בין איש ובין אחיו, "between a man and his brother." This expression refers to three separate aspects of fair judgment. 1) It refers to a statement by Maimonides in chapter 22 of his treatise Hilchot Sanhedrin. "A judge must not be influenced by fear that the litigant whom he will. declare guilty will revenge himself on members of his family." Concerning such a situation Moses said: בין איש. Our sages in Sanhedrin 6 referred to the words לא תגורו מפני איש (verse 17) as the basis for this ruling.

92) When two brothers appear before a judge in litigation the judge must not reason that he does not have to be so exact in his judgments seeing these men are brothers. The Torah writes ובין אחיו, "and between his brother," i.e. the same yardsticks which apply to litigants who are not related to one another also apply to brothers. These words also apply to what we have learned in Shavuot 31 and the ruling based on this by Maimonides in chapter 21 of his treatise Hilchot Sanhedrin. Maimonides rules that when two litigants appear before a judge, one of whom in fancy dress, the other in shabby garments, the judge is to tell the one dressed in finery to either provide similar finery for his opposite number or to change his own clothing to bring it into line with that of the poorer litigant. This is what Moses alluded to with the words ובין אחיו, the two litigants should give the appearance as if they were brothers, alike in dress.

10Maimonides also writes at the beginning of chapter 3 in the above-mentioned treatise that the words בצדק תשפוט עמיתך, "you shall judge your colleague with righteousness" (Leviticus 19,15), mean that one of the litigants should not be seated while the other one is standing. Moses added ובין גרו, "and between his stranger," to allude to this distinction. Either both litigants are to remain seated or both are to stand in front of the judges. Unless all these conditions are observed there cannot be a judgment based on righteousness.