Sefer HaChinuch ספר החינוך

That the one who advocated innocence at the beginning of capital cases not advocate guilt: That one of the judges not go after the opinion of another greater judge or even after the opinion of the majority, because he trusts him — to make liable or to make innocent — if the matter is not understood to him in his mind. And if it is a case that is dependent upon a decree of Scripture (gezerat hakatuv), a gezerah shava or a hekesh (the latter two being exegetical inferences based on similar wording in two sections), he must know it himself and not rely and trust one of the [other] judges or the majority; as it is stated (Exodus 23:2), “and you shall not answer about a dispute to incline.” [This is] meaning to say, do not say something about a dispute to incline — meaning only from the side of leaning towards the words of a great judge or towards the majority — and not from the side of your understanding. Or if you want to be silent from [saying] that which is in your heart about the case and [instead] to incline after their words, do not do so. And the language of the Mekhilta DeRabbi Yishmael 23:2 is “‘You shall not answer about a dispute to incline’ — that you not say, ‘It is enough for me that I be like Rabbi x,’ but rather, say what is in your heart. Maybe, monetary cases are also like this? [Hence] we learn to say, ‘to lean after the majority.’” And within this very negative commandment is included that the one who advocates innocence in capital cases not go back and advocate guilt; as it stated, “and you shall not answer about a dispute to incline” — meaning to say, “let not your words be inclined towards guilt” (Sanhedrin 34a). And so, too, included is that we do not open towards guilt in capital case. And the explanation then comes, “and you shall not answer about a dispute to incline,” meaning to say, the opening of your words should not be for guilt. As per force, we must explain it about the beginning of the case, since it is impossible to say that it warns that you not answer guilt about the whole case. As, if so, no man would ever be prosecuted.

And likewise we have understood from this negative commandment (Sanhedrin 36a) that we do not begin in capital cases from the great one, but rather the one below him should first say his opinion. And this is [the understanding of] “and you shall not answer about a dispute (riv)” — [that it is] like “upon a rav (teacher); as [the word, riv,] is written without [the letter] yud [such that it could also be read as rav] — meaning to say, do not answer the great one; but rather he will answer you, since you will speak first. All these things we learned from “and you shall not answer about a dispute to incline.” And this matter is from the power of the Torah’s wisdom, that many things are to be learned from one thing in it. And this is [the meaning] of that which they, may their memory be blessed, said, “There are seventy faces to the Torah” (The Letters of Rabbi Akiva). And since God knew that the people that received the Torah — in their acting in the way that they were commanded by it — would be prepared for wisdom and understanding and would understand what they need to about the functioning of the world in it, He kept the words [unelucidated] in [various] places and gave over the understanding through the great intermediary (Moshe) between them and Him. And [so] He did not give it with longer words; as all of its words are decreed, and obligated to be like they are in their count and form. As besides the understanding of its precious commandments that we understand in them, great and majestic wisdom is [also] included in it — to the point that our Rabbis, may their memory be blessed, exalted the wisdom that God, blessed be He, placed in it; such that they said about it (Bereshit Rabbah 1) that the Holy One, blessed be He, looked into it and created the world.

From the roots of this commandment is like that which we said at the beginning — that one of the judges not go after his colleagues, but rather he should understand the things on his own. The reason is because it is possible that from this the case will sometimes be totally [decided] by the opinion of [only] one of them. Understand the matter, as it is such. And God, may He be blessed, did not want to give over a capital case to one opinion. But with the case of money — which is given to repayment — we are not concerned with all of this. And it is even given over to three from the outset, relying upon it being impossible that there not be any of them that did not study. And the rest of the things that we learned from it — such as the one who advocated innocence may not advocate guilt; that we do not open with guilt; and that we do not begin from the great one — all of it is out of the pity of God, may He be blessed, upon His creatures. [It is] metaphorically like a man who has pity on his children, as it is written (Deuteronomy 14:10), “Children are you to the Lord, your God.” And work upon yourself [to understand it] by way of a parable: If a man fathered a hundred and he built a city for them and placed them there, but saw that they would not survive in the community unless he decreed upon them that anyone who hits his neighbor would be punished with his money; and if he kills him, he shall be killed. And one of them got up and transgressed his decree [and killed another] — if he forgave him, behold, the community would be lost; as fear would not stay upon the [others. So] what is there for him to do and not see the death of his second son? He would nonetheless seek any way he can to exempt him according to the law. If he can, that is best, but if it is impossible in any way, he would command to kill him, so as to preserve the community [for] the others. And so is this matter —- understand it.

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 17a) that if they all [advocated] for guilt, that he is exempt; [that] if the ones that make him innocent and the ones that make him guilty are equal, that we add [more judges] upon them, and until how many do we add (Sanhedrin 41a); what will be if one said, “I do not know.” And that which they said, that one who advocates innocence may not go back and advocate guilt, is only said about the time of give and take; but he may go back and be counted with those that make him guilty at the end of the trial. And [that] if one opened and said, “I have guilt to advocate,” and became paralyzed or died, he is like one who does not know; but we see one who [would] make him innocent that dies, as if he is in his place at the end of the trial. And [that] we silence a student who comes to advocate guilt; but if he wanted to advocate innocence, we elevate him to the Sanhedrin - and if there is substance to his words, we listen to him and he never goes down from there ever; and [even] if there is no substance to his words, he does not go down from there the whole day, by way of edification. And [that] we [even] listen to the accused himself that says, “I have innocence to advocate about myself” — and that is when there is substance to his words. And the rest of its details — are [all] elucidated in the seventh chapter of Sanhedrin.

And this commandment is practiced by males but not by females, as they do not judge — as we have said above in many places. And do not let that which is written about Devorah the prophetess (Judges 4:4), “and she judged Israel,” be difficult to you. As it is possible for us to answer that the judgment was not concluded according to her [word]. Rather, [since] she was a wise woman and a prophetess, they would give and take with her — even about matters of the prohibited and the permitted and also civil laws. And hence it is written about her, “and she judged Israel, etc.” Or we can say that the heads of Israel accepted her upon them — and after them, everyone — to decide according to her [word]. As everyone is fit [to judge] with acceptance [of the parties involved], since any condition upon money is valid (Ketuvot 56a). And nonetheless, all this that we have said that they do not judge is according to the opinion of some commentators and the opinion of the Yerushalmi (Talmud Yerushalmi Sanhedrin 3:9) — as such is it found there explicitly. But according to the opinion of some commentators, they are fit to judge. And they said that it is an open verse [that proves this] — as it is stated, “and she judged.” And [about] that which they said in Sanhedrin 34b that anyone who is not fit to testify is not fit to judge — and women are certainly not fit to testify, as is proven there — it is possible that they would say, according to their opinion, that this is [not an issue] since we do not learn from general principles (Eruvin 27a). But what appears [correct] from the [sources] and from logic is that they are not [included] in the category of judgment, as it is found in the Yerushalmi and as it is implied in our Gemara (Bavli) by way of simple understanding.

And this commandment is practiced only in the Land of Israel, as we only judge capital cases there. And one who transgresses it and does not want to advocate that which he sees in his mind in the case and relies upon his colleagues; or opens with guilt; or goes back and advocates guilt after [he advocated] innocence; or a great one that opens first — has violated a negative commandment. But we do not administer lashes for it, as there is no act [involved] with it.