We are starting the third chapter of Tractate Sanhedrin, Mishnah 1. The Mishnah returns to discussing the operation of the courts, and the starting point is what we already learned in the first chapter: monetary cases require three judges. Three judges are needed to adjudicate a financial dispute where two litigants disagree about who owes what to whom. We have already learned that on a rabbinic level, this requirement can be fulfilled even with three laymen who are not ordained and are not experts, and even by a single expert; however, the assumption in this Mishnah is that under normal circumstances, a court of three is required.
When there is an authorized court that has the authority to compel litigants to appear, there is no need to select judges at all: the plaintiff approaches the local court sitting in the city, or a judge who has been authorized to run a court - whether his authorization is from Sura or from the Exilarch, the leader of the Diaspora, and anywhere in the world. It is enough for him to say "I wish to sue the defendant," and the court compels the parties to appear for judgment.
However, there may be a situation where there is no such authorized body, or where the litigants agree among themselves to set up their own ad hoc court. How are the three judges who will make up this court selected?
The dispute between Rabbi Meir and the Sages regarding the selection of judges:
"Zeh borer lo echad vezeh borer lo echad, usheneihem borerin lahen od echad - divrei Rabbi Meir" - The plaintiff chooses one judge, the defendant chooses one judge, and the two of them together choose the third judge. According to Rabbi Meir, when each of the litigants is a partner in the selection of two out of the three judges, each side will feel that they are receiving a fair trial. The purpose of judgment is not only true justice, but also that the litigants feel psychologically that they received a fair ruling, and therefore accept it with satisfaction.
"Vachachamim omerim: shenei hadayanim borerin lahen od echad" - Each of the litigants chooses his judge, but the third judge is selected by the two judges between themselves, without the involvement and consent of the litigants.
According to all opinions, it is agreed that all the judges sitting in judgment must consent to sitting together. If one judge does not agree to sit with his colleague, he cannot be forced, and the arrangement will inherently not come to fruition. Certainly, if one of the judges believes that his colleague is unworthy or has a bad reputation, he will not agree to be counted in that panel. The dispute, therefore, revolves only around the extent of the litigants' involvement: according to Rabbi Meir, each of them is a partner in selecting two out of the three, and according to the Sages, each one selects only one, and the third is chosen by the judges themselves.
Can a litigant disqualify the opposing side's judge?
"Zeh posel dayano shel zeh vezeh posel dayano shel zeh" - According to Rabbi Meir, each of the litigants is permitted to disqualify the judge chosen by his counterpart. The grounds for disqualification is the litigant's claim that the chosen judge is not qualified for his role. If that judge is already recognized by the public as an expert, Rabbi Meir concedes that there is no room for objection; however, if his status is lesser than that, the litigant may argue that the chosen judge does not meet the required standard and demand that another be chosen in his place - and this claim is accepted and binding.
"Vachachamim omerim: Eimatai? Bizman shemevi aleihen re'ayah shehen kerovin o pesulin, aval im hayu kesherin umumchin - eino yachol liposlan" - And so is the halachah. A litigant cannot disqualify the judge chosen by his counterpart except on objective grounds: if the judge is a relative or is disqualified, such as if he is the litigant's brother or a transgressor, one can certainly object. However, when the judges are valid according to the law, the claim that the judge is not good enough is not a legitimate claim. Therefore, in practice, each of the litigants chooses his judge, and the two judges choose the third.
Is a litigant believed to testify against the witnesses testifying against him?
The very question seems baffling: the litigant is a biased party with a clear personal interest. After all, this involves testimony that stands to make him liable in judgment - how can he be viewed as an objective person and be believed in his claim that the witnesses are disqualified? This is indeed the view of the Sages; but Rabbi Meir presents a scenario where this is possible.
The dispute in the final section of the Mishnah revolves around a specific case: a litigant who intends to bring two groups of witnesses. According to Rabbi Meir, in such a case he must inform the court of this in advance, and once he has informed them - he is obligated to bring both pairs. The Sages disagree with this very premise: there is no obligation to inform them of the plan in advance and there is no necessity to bring multiple groups, and a litigant is permitted to keep his cards close to his chest and not reveal in advance how many pairs of witnesses he intends to bring.
Since Rabbi Meir holds this way: Regarding the first set of witnesses coming to testify against the defendant, the defendant is not considered fully self-interested. Although there is self-interest here, it is not absolute, since the verdict may be given anyway based on the second set of witnesses, which is known to be coming to present its testimony - for according to Rabbi Meir, they notified the court of this in advance and now there is an obligation to bring it. Therefore, in a scenario where two sets of witnesses arrive, the defendant can serve as one of the two witnesses disqualifying the first set, and say along with another person that those witnesses are disqualified from testifying because they are known transgressors.
And the Sages disagree: The defendant against whom they are testifying is self-interested and biased, and therefore he is not accepted as a witness against those witnesses. He must bring two other witnesses; he is certainly allowed to bring witnesses who will testify to their disqualification, but they must be two others besides the defendant himself.
And the wording of the Mishnah: "Zeh posel edav shel zeh, vezeh posel edav shel zeh - divrei Rabbi Meir" - this one disqualifies the witnesses of that one, and that one disqualifies the witnesses of this one, the words of Rabbi Meir - in the described scenario, where it is known that two sets of witnesses will come, Rabbi Meir holds that each of the litigants can serve as one of the two witnesses by whose power the witnesses testifying against him will be disqualified. "Vachachamim omerim: Eimatai? Bizman shemevi aleihen re'ayah shehen kerovin o pesulin" - and the Sages say: When? When he brings proof about them that they are relatives or disqualified - it is indeed possible to clarify that the witnesses are disqualified, but only when two witnesses who are unconnected to the case come and testify that those witnesses are relatives or disqualified - family members, wicked people, or transgressors.
"Aval im hayu kesherim - eino yachol leposlan" - but if they were valid, he cannot disqualify them - when the witnesses are legally valid, not being relatives or wicked, the litigant cannot disqualify them, and he cannot serve as one of the two witnesses disqualifying those who testify against him. The emerging rule: The litigants themselves are not believed to serve as witnesses against the witnesses, and outsiders are required for this.
In summary: In this Mishnah we learned how a court of three is assembled when there is no authorized court to force the parties to appear: According to Rabbi Meir, "this one chooses one for himself, and that one chooses one for himself, and both of them choose another one for themselves", and according to the Sages - and this is the halachah - the two judges are the ones who choose the third. We also learned that a litigant cannot disqualify his fellow's judge except by virtue of proof that he is a relative or disqualified, and also that a litigant is not believed to serve as a witness against the witnesses testifying against him, except according to Rabbi Meir and in the special scenario of two sets of witnesses.
Later in the chapter, the Mishnah will expand on the matters of relatives and disqualified individuals, and we will get to that soon.