Baba Batra 114 The integrity of the court

In rabbinic jurisprudence the profession of lawyers didn’t exist. The judges presided over the cases by listening and questioning the witnesses and then rendering a judgment. TB Baba Batra states the principle that “a witness cannot become a judge (אֵין עֵד נַעֲשֶׂה דַּיָּין), i.e., one who acts as a witness in a particular matter cannot become a judge with regard to that same matter” (Serfaria.org translation)

Rashbam and other Rishonim hold that not only witnesses who testified cannot turn around and become a judge to decide the matter, but also people who were willing to testify in the same matter, but didn’t are also ineligible to become a judge. Tosefot and most Rishonim hold that only those actual witnesses who testified in the case are ineligible to become judges in that case.

There are two different reasons why a witness should become a judge. Rambam and some Rishonim base this principle on the explicit verse, “the two parties to the dispute shall appear before YHVH, before the priests or magistrates in authority at the time,” (Deuteronomy 19:17). According to rabbinic interpretation this verse is referring to witnesses who appear before the judges. Consequently, is not logical that the same person should be a witness who testifies before himself as a judge. Tosefot explain that witness cannot become a judge is forbidden because it falls within the parameters of “a testimony that you cannot render conspiratory testimony (עדות שאי אתה יכול להזימה)”. A judge who testifies will not allow conspiratorial testimony against himself; consequently, he as a witness is ineligible to become a judge.

Tosefot and most Rishonim hold that this principle is only applicable in testimony of Torah law. Because the ratification of a legal document (קִיוּם שְׁטָרות) is only rabbinic in nature, a witness may also become a judge. For example, a witness testifying that a get written and signed before him can become part of the court as a judge to deliver the get to the woman. The principal of a witness cannot become a judge only applies if he testifies in this matter. If a person doesn’t testify but saw and knows what happened is only ineligible to become a judge in matters of capital cases. In capital cases judges are supposed to argue for the defendant’s acquittal and how can a witness to a murder honestly argue for the defendant’s innocents!

I think it all boils down to the integrity of the court. When the integrity of the court is damaged, the public will lose faith in the court’s decisions. We see this phenomena here in the United States. The favorable view of the Supreme Court remains at a near historic low After its ruling about abortion and presidential immunity “fewer than half of Americans (47%) now express a favorable opinion of the court, while about half (51%) have an unfavorable view, according to a Pew Research Center survey conducted July 1-7, 2024.:” (https://www.pewresearch.org/short-reads/2024/08/08/favorable-views-of-supreme-court-remain-near-historic-low/)