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The Mitzva To Appoint Judges and Officials to Enforce the Law

"Appoint yourselves judges and police (Shot'rim in Hebrew, officers to enforce the dictates of the courts and judges) for your tribes in all your settlements that G-d your L-rd is giving you and make sure that they administer honest judgment for the people" (Rabbi Aryeh Kaplan's translation of Deuteronomy 16:18)

This verse is the source for commandment 491 of Sefer Hachinuch, which states:

Commandment 491- The Mitzva to Appoint Judges and Law Enforcement Officials In Each and Every Community of Israel

To appoint Judges and Law Enforcement Officials that will coerce individuals to observe the commandments of the Torah and to bring back those that lean away from the path of truth against their will, and to command what is fitting to do and to prevent disgraceful activities, and to fulfill the defined sentence against those that transgress in order that the commandments of the Torah and its prohibitions should not be dependent upon the personal beliefs of each and every individual.
And of the conditions of this commandment is the following: that the judges be of the highest level; and that we shall establish in every city 23 assembled judges to one place of the gates of the state that has a proper quorum, and this is the small Sanhedrin; furthermore we will establish in Jerusalem a High court of 70 judges, and we will establish one above those seventy and he is called, "Rosh Hayeshiva" (head of the assembly) and he is what the sages similarly called, "Nasi"; and all of them will be gathered together to their specially designated place.
However, in a place where the number of needed people is too little for a small Sanhedrin, they shall establish within it, a court of three, that will judge the small matters, and the difficult matters they will bring to those that are above them. And similarly, they shall appoint enforcement officers that patrol in the city in the markets and the streets and inspect the matters of men in their business dealings, in their sales and their purchases to the point that no perversion of justice shall exist among them even in small matters. And the commandment that we arrive at through all this, is what the One Who Should Be Blessed said, [Deuteronomy 16:18] "Appoint yourselves judges and enforcement officers for your tribes in all your settlements" and this is the wording of Sifre:

From where do we know that we appoint a court for all of Israel, since scripture teaches, "judges and enforcement officers", and from where do we know that one is above all of them' since scripture teaches, "Appoint yourselves" and from where do we know that we appoint a court for each and every tribe, " since scripture teaches, in all your gates (settlements); Rabban Shimon Ben Gamliel states, "to your tribes and they shall judge", it is a commandment for each and every tribe to judge their own tribe. - "And they shall judge the people" - against their will.
And this commandment was already repeated elsewhere to appoint 70 elders, And the One Who Should Be Blessed said to Moshe (Moses) peace be unto him, [Numbers 11:16] "Gather to me seventy men". And they of blessed memory said [in Sifre, there], "every place that it was said to me , behold it is established forever; and similarly [Exodus 28:41] "And they shall be priests to me, etc. ", that is to say that it is an eternal commandment and not a temporary one, but it shall exist as long as the earth exists.

And the rationale for this commandment is apparent - That by this thing, we shall uphold our religion, because the fear of our leaders and our judges are upon the masses, and out of their routine of doing good and the just, because of fear, the people will obtain a natural inclination to justice and righteousness out of love when they recognize the way of truth; and as the matter that the sages say, that abundant routine is what is behind natural inclination, that is to say, that just like nature coerces a person to do what it demands, so too abundant routine, reappears within the individual to something akin to an existing nature, which will force him to go in accordance to the routine forever. By the nation going in the straight and faithful path and by their choosing good, the good will cling to them and G-d will rejoice over his creations.

Of the details of this commandment is what they of blessed memory said, that the greatest of the seventy sits below the Nasi and he is called the father of the court (Av Beit Din) . The rest of the seventy sit in accordance to their age and accordance to their stature close to the Nasi , that is to say, that he who is greater than his friend in wisdom sits closer, however, when they are equal in wisdom we determine according to the older of them; and they are all seated in the shape of a semicircle so each one can see the other. Furthermore, we establish before them 2 courts, 23 judges per court. One group of them being on the entrance to the Temple Courtyard and one group being at the entrance to the Temple Mount. The greatest of each group is the head of his group.

We only place into the Sanhedrin, whether it is the great or small Sanhedrin, men who are wise and of deep understanding in the wisdom of the Torah and that know somewhat of other fields of knowledge, such as, medicines, and the calculations of seasons and constellations and astrology and the ways of those that divine by auspicious times, or by the use of sticks, or by witchcraft, in order that they know how to judge {or to determine the guilt of } the nation in all these matters if they need to do so. And one places into the Sanhedrin only those who are Cohanim [priest descendents of Aharon (Aaron)], Levites, and Israelites of untainted pedigree that are fit to marry their daughters to the Cohanim, for it [Numbers 11,16] was said by Moshe, "And they shall stand together with you", which they of blessed memory expounded, [Tractate Sanhedrin 37b] "similar to you".

One only places within a Sanhedrin whether it be a great Sanhedrin, or a small one, those that have "Smikha" status. And our Rabbi, Moshe, placed his hands (and gave "Smikha" status) upon his disciple Yehoshua (Joshua) as it is written [Numbers 27:23] "And He placed his hand upon him" and similarly he gave "Smikha" status to the seventy elders that he gathered unto him, and those elders gave "Smikha" status to others and those others to others up until those who were last to receive it. However, the "Smikha" throughout the generations was not by hand in contrast to the "Smikha" of Moshe . Rather, they would check the man that they were considering for "Smikha" if he was an expert in the wisdom of Torah and if his intellect was healthy and whole and if he was a man that loves truth and hates perversion of justice and they would check all matters pertaining to him. After a great amount of investigation in his matters and his wisdom, three sages, who already have "Smikha", or even if one of the three has "Smikha" proclaim, behold, you now have the status of "Smikha". Then they call him Rabbi from that point onward, and he had from that time onward the permission even to judge cases involving fines. Now the law involving an elder who is extremely old, and those who are incapable of having offspring, and a blind man, blind even in only one eye and he that has no children that they are not fitting to be in the Sanhedrin; furthermore the law that the kings from the house of David can judge and be judged but that this is not so for the kings of Israel, because they don't have the legal presumption of being fit (in contrast to the house of David); furthermore, the law concerning till when the Great Sanhedrin or the small or the court of three sit, and the rest of the relevant details are explained in Tractate Sanhedrin.

This commandment applies, that is to say, regarding, the great and small Sanhedrin, and the court of three in the land of Israel; that there, "Smikha" is given, but not outside the land for we don't give "Smikha" status outside the land. Nevertheless, whoever received "Smikha" status within the land is fit to judge even outside of it; and this is (the intention of) what they of blessed memory said [tractate Makot 7a] "The existence of a Sanhedrin is applicable for both the land [of Israel] and outside the land". However, they do not have permission to try cases involving capital punishment neither within the land or without, except at the time of the Temple when the Sanhedrin was fixed in Jerusalem.

Now this is one of the commandments which is incumbent upon the entire community in each and every place and a community that is fit to establish among them a court as explained in tractate Sanhedrin (2b) but did not set one, for themselves nullified this positive precept; and their punishment is very great for this commandment is a strong pillar for sustaining the religion. And we should learn from this, that even though due to our many iniquities, we do not have currently men with "Smikha" status, that each and every congregation in all places should appoint from some of the good among them, people that will have power over all of them to coerce in all forms of coercion, whether through monetary penalties or even by physical punishments concerning the performance of the commandments of the Torah and to prevent amongst their midst disgraceful matters and all that is similar to them. In regard to those appointed people it is also fitting that they should straighten their way and make their actions fit and remove the humiliation of the public from themselves, lest they say concerning their punishments, that you should remove the "beam that is between your eyes" (in other words, clear yourselves of the same crimes or even worse ). Furthermore, they should try continually to do what is beneficial for their colleagues that are dependent upon them to teach them the true way and to establish peace with all their energies among the congregation. They should abandon, leave, and forget from their hearts all of their physical delights and upon this they shall put their attention and upon this shall be the majority of their thoughts and activities. Upon them the scriptural verse shall be fulfilled [Daniel 12:3] "And those of keen intellect will shine like the shine of the firmament and those that make the masses righteous, like the stars, forevermore.

Excerpts From Minchat Chinuch's Commentary


To Appoint Judges and Officials to Enforce the Law, etc. - This is clarified in Rambam's commentary, Hilchot Sanhedrin chapter 1.
Rambam (Maimonides)

rambam
And the details of the laws are the following: It is a positive precept of the Torah to establish a court in every city and every district etc., and so too enforcement officers. And specifically in the land of Israel, however outside the land we establish a court in every district but not in every city.

Such is the correct text of the Rambam's writings in halacha 2; see there in the Kesef Mishna and Lekhem Mishna commentaries, similar to what was explained in tractate Makot 7a. However, Ramban (Nachmanides) in his commentary to the Torah, Parsha Shoftim believed that Rambam's opinion was that there is no precept whatsoever to seat judges outside the land, and he criticized Rambam's opinion based on the Talmud in Tractate Makot. However, the text of the latter authorities concerning Rambam's view is similar to the view of the Talmud, see their words...

Furthermore one seats a Great Sanhedrin of 71 in the Temple in the place called Lishkat Hagazit, and they are the High Court. And in every city that has 120 men we seat a small Sanhedrin of 23, and they also judge capital punishment crimes. However, there are many things that require specifically the High Court, see Rambam's commentary here (Hilchot Sanhedrin) chapter 5 that thought of many things that were done specifically by the High Court. And in a city that the number does not reach 120 we appoint 3 judges, and they judge cases involving the punishment of lashes and fines but not cases involving capital punishment, see chapter 1 of Rambam's writings where all of this is defined very well.

Furthermore, all of these judges have to have "Smikha" status. The "Smikha" is one man to another going back to the court of Moshe, peace be unto him. And the "Smikha" of successive generations does not have to be by hand similar to the way that Moshe gave "Smikha" to Yehoshua son of Nune, rather he just says to him, "behold you have "Smikha". And it is possible to give selective "Smikha" status for some subjects and not others. For example, to give permission to judge but not to instruct, or to judge but not for fines or to disallow them from deciding whether a first born animal has a blemish that makes it permissible for private benefit ,and other matters similar to this, see Rambam chapter 4. Nevertheless, there is no permission to give "Smikha" status even for selective cases except to someone who in reality is already fit to judge and instruct in all areas of the Torah. Thus it is explained here in Rambam's writings, halacha 8, and see Kesef Mishna's commentary who ended with the statement that it needs further investigation from where did Rambam deduce that he has to be fit for everything; and see Lekhem Mishna's commentary that it is derived from an explicit Yerushalmi the first chapter of Chagiga, halacha 8.

Furthermore, one does not give "Smikha" outside the land. This is so, both for the situation where the givers of "Smikha" are outside of the land while the receivers are within and for where the givers are in the land and the receivers are outside. If it were given anyway it would not be valid; rather we need both sides to be in the land of Israel. Rambam wrote in chapter 4 , halacha 6, that the entire territory of the land of Israel that were possessed by those that came up from Egypt is fitting for granting "Smikha" within it. That is to say, even those parts of the land that those who came out of Babylon did not succeed to possess are included. And even though the initial sanctification of the land etc. did not grant the land sanctified status for all times in the future, nevertheless for the subject of "Smikha" its lawful status is that of the land of Israel...

Now the judges only have the full status of judges, if they have received "Smikha" and as described previously. And Rambam wrote in halacha 11 that it appears that if all the sages that live in the land of Israel would agree to appoint judges and to grant them "Smikha", they would indeed obtain "Smikha" status, even though they would not have received it from someone who already has it. If so, why are the Sages of Israel distressed over the nullification of "Smikha" etc. because Israel is scattered, etc., however, he concluded his words that the matter needs further deliberation. And see also in his [Rambam's] commentary to the mishnayot of Sanhedrin chapter 1, starting with the word Smikhat , where he brought another proof for this; and see Tosfot Yom Tov there mishna 3, and already there was a dispute between the great sages Ralbach, and Ri Bay'rav concerning the notion brought by Rambam and the subject is an old subject. However, the book about this dispute is not in my possession to look at.

Now regarding what I have written already, that a court of three also needs Rabbis who have "Smikha" status, that is to say for the matter of giving lashes and for penalties. In regard to monetary matters, such as, when one of the sides admits and for loans, and for similar matters there is a dispute in the Talmud Sanhedrin 2b about this...

Now one does not seat in the Sanhedrin an elder who is extremely old, nor one that doesn't have children, because they have within them cruelty. And it seems that this matter can not be waived under any circumstances, for it is considered among the ten things where the law regarding judges for capital punishment crimes differ from the law for judges in monetary cases. See there in Sanhedrin 36b and all the things there that can not be waived under any circumstances.

Furthermore, the members of Sanhedrin, have to be free of physical blemishes and according to what I have written this is also true for a court that judges fines...

Furthermore, the Great Sanhedrin has to be located in the Temple. And all the time that they sit it is forbidden to go out until 23 remain, see Rambam, chapter 3, halacha 2. And while there are men with "Smikha" we judge even outside the land. However, we do not try cases involving capital punishment except when the Temple exists and the Sanhedrin is sitting in their place in "Lishkat Hagazit". Now forty years before the destruction of the Temple the judgement of capital punishment crimes was nullified, even though the Temple was present, since the Sanhedrin at that time did not sit in their place, see Rambam, chapter 14, Halacha 13 ...

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