Introduction Rabbi Ishmael was the oldest of Rabbi Yose’s five sons. Most of his statements in the Talmud were stated in the name of his father. He lived in Tzippori (in the Galilee). In this mishnah and in the next, Rabbi Ishmael discusses judgement. We should note that in the time of the Mishnah, being a judge was not a profession. Jewish courts were not fixed institutions, such as an independent state might have. While there may have been rabbis to whom people knew they could turn, this is not the same as an established court system. Furthermore, in some cases, anyone could act as a judge, even those without any special qualifications. A person could potentially gather three people and ask them to render a decision. (See Sanhedrin, chapter three). In such a system (or lack of system) it becomes especially important to give instructions to people when they should or should not judge. This is the subject of the next two mishnayoth.
Rabbi Ishmael his son said: he who refrains himself from judgment, rids himself of enmity, robbery and false swearing; But he whose heart is presumptuous in giving a judicial decision, is foolish, wicked and arrogant. Seemingly, Rabbi Ishmael is asking all people to avoid acting as judges, saying that those who don’t judge avoid many pitfalls. They don’t make enemies out of those whom they find guilty, they don’t misjudge, thereby in essence robbing from the falsely convicted, and they don’t make people swear when they shouldn’t have to. However, the second half of Rabbi Ishmael’s statement seems to imply that the first half is not referring to normal, qualified judges. A good judge is not “presumptuous”, in other words he carefully weighs his decisions, and makes sure he knows all of the facts and all of the laws before he renders his decision. One who does not do so is foolish, for he thinks that he is smarter than he really is, wicked, for he recklessly renders decisions, and arrogant, for he assumes that he will not make a mistake. According to Rabbi Ishmael it is the presumptuous, untrained judge that is problematic. Rabbi Ishmael’s statement should be considered a warning not to judge when one is not qualified. It is not a warning that even the qualified should refrain from judgement. Counterbalancing this tradition, there is an assumption that those who are trained have a duty to judge others, for if they did not, society would not be able to enforce its laws. Other commentators point out that this mishnah only applies in a case where there are other, more qualified judges. But if there is no one else more qualified, each person has an obligation to judge as best as he can. Nevertheless, he must render his decision with fear and with the proper respect for the seriousness of his job.