BAIS HAVAAD ON THE PARSHA 5772 PARSHAS Shoftim: The Mitzva of Appointing Dayanim

(PLEASE LEARN THIS FOR THE REFUA SHELAMA OF HaGaon HaRav Yitzchok Zilberstein Shlita-Yitzchok ben Rochel RAV CHAIM KANIEVSKY-Rav Shmaryahu Yosef Chaim ben Pesha Miriam,Rav Shteinman - Aaron Yehuda Leib ben Gitel Feiga, Rav Weiss - Yitzchak Tuvia ben Rikal, Rav Yosef - Yaakov Chai ben Margalit Harav Shlomo Leib Ben Miriam - HaRav Shlomo Brevda Harav Yeshaya Yaakov Ben Raizel - HaRav Yeshaya Yaakov Portugal Harav Meshulem Fish Ben Tziril - The Toshe Rebbe Rav Yerachmiel Shlomo Hakohen ben Raizel. -Rav Yerachmiel Shlomo Rothenberg, rosh yeshiva of Yeshiva of Mountaindale Rav Shaul ben Pasha-Gavaad Zurich, Switzerland and rav of Beis Medrash Agudas Achim for a refuah shleima b’soch kol cholei am Yisrael.)(AND L"N RAV YOSEF SHALOM BEN RAV AVRAHAM(RAV ELYASHIV ZT"L)In this week's parsha, the Torah commands us to appoint judges to enforce all the mitzvos of the Torah. The Chinuch (491) explains that this is a necessity for our religion because the only way to properly ensure that the people observe the Torah is through fear of a judicial system. He adds that although the ultimate goal is for the people to serve Hashem out of love, very often such a goal must begin with force. Some only manage to serve Hashem out of fear of the judicial system, but over time, it becomes natural for them to serve Hashem. Once it becomes natural a person will continue to do so out of love. This week's journal will focus on the mitzvah of appointing judges and its application today. Click here to listen to this week's feature audio shiur by Rav Yitzchok Grossman, The Commandment to Appoint Judges(AUDIO HERE) he Commandment To Appoint Judges By Rabbi Yitzchak Grossman Introduction "Judges and officers shalt thou make thee in all thy gates, which the L-rd thy G-d giveth thee, throughout thy tribes: and they shall judge the people with just judgment."[1] The Torah is unequivocal in its demand for the appointment of judges; in this article, we explore the applicability of the commandment to contemporary times, and to Diaspora society, outside Eretz Yisrael. Semichah Both these question are fundamentally rooted in the limitation of semichah[2]to Eretz Yisrael, and its contemporary obsolescence. The Talmud, at least according to some opinions, considers semichah a Biblically essential qualification for a judge,[3] and this leads many to the conclusion that in the absence of semichah, our judges derive their legitimacy only from Rabbinic ordinance, and their appointment therefore cannot fulfill the Biblical commandment. The Diaspora While the Talmud (at least our text of it) explicitly states that the Sanhedrin operates in both Eretz Yisrael and Chutz La'Aretz;[4] there is nevertheless considerable discussion in the rishonim and acharonim over whether the commandment to appoint judges actually applies in Chutz La'Aretz.[5] The position of Rambam, in particular, is very unclear;[6] some understand him to maintain that there is no obligation at all to appoint judges in Chutz La'Aretz,[7] while others interpret him to be saying merely that unlike in Eretz Yisrael, where we are commanded to appoint judges in every region (pelach) as well as in every city (ir), in Chutz La'Aretz,either only the former obligation,[8] or only the latter,[9] holds.[10] How can the aforementioned Talmudic passage be reconciled with the position that there is no obligation at all to appoint judges outside Eretz Yisrael? Some suggest the existence of a variant Talmudic text;[11] others explain that the Talmud merely means that the Sanhedrin has the power to operate in Chutz La'Aretz, but not that there is an obligation of appointment there.[12] Contemporary Times Many rishonim and acharonim maintain that the Biblical commandment to appoint judges does not apply in contemporary times, due to the absence of semichah.[13]Rav Eliezer Yehudah Waldenberg, however, inclines toward the view that the Biblical commandment is actually still in force (at least in Eretz Yisrael). One of his sources is the terse categorization by the Sefer Charedim of our commandment under the rubric of "Biblical commandments .. that are possible to be fulfilled every day",[14] which Rav Waldenbergunderstands to indicate contemporary applicability.[15] The Buczaczer Rav, however, (very tentatively) suggests that perhaps all the Charedim means is that it is possible in theory to fulfill the commandment today, were it not for the technical problem of the absence of semichah.[16] Shlichusayhu A primary argument adduced by Ramban[17] in support of the position that the appointment of our batei din does not fulfill the Biblical commandment is based on the Talmudic statement that the authority of our batei din is not inherent, but derives from agency (shlichusayhu) of the sages in Eretz Yisrael[18] (or those who lived there before the abolition of semichah[19]). If they have no intrinsic authority, it seems that they cannot satisfy the Torah's requirement. Several acharonim rebut this proof, though: The Nesivos Ha'Mishpat,[20] the Buczaczer Rav[21]and Rav Waldenberg[22] explain that shlichusayhu is actually a Biblically valid mechanism, and the appointment of judges whose power derives from this arrangement therefore still fulfills the Biblical commandment.[23] The Bach[24] claims that the opinion of the Tosafos[25] is that the absolute requirement of semichah, and the concomitant necessity for shlichusayhu, only apply wherebeis din engages in coercion, but in ordinary proceedings involving cooperating parties, semichah is not always required. Although the Urim Ve'Tumim disagrees, contending that the Bach misunderstands the Tosafos,[26] the Ketzos Ha'Choshen dismisses his objection and sides with theBach.[27] Once again, the position of Rambam is very problematic and the subject of considerable debate, with many rishonim and acharonimraising several serious difficulties with, and contradictions between, his various statements on the requisite qualifications of batei din and the principle of shlichasayhu;a discussion of their various resolutions is beyond the scope of this article.[28] The Position Of Mabit Mabit expresses the remarkable and unique view that the contemporary obsolescence of semichah actually increases the legitimacy (on a Biblical level) of our batei din, for the distinction between Eretz Yisrael and Chutz La'Aretz is only relevant as long assemichah remains extant, but in its absence, "they are all equal, and everything depends on wisdom".[29] Rabbinic Obligation The Bach[30]and the Urim Ve'Tumim[31]both assert that even according to the opinions that the Biblical obligation is no longer in force, there is still a Rabbinic obligation modeled after the Biblical one. The Appointment Of Morei Horaah The Buczaczer Rav proposes the innovative idea that included in our commandment is the appointment of morei hora'ah, and he suggests that such an imperative is even more necessary than the basic establishment of a judiciary, for in civil disputes, the disputants themselves will necessarily seek out appropriate rabbinic arbitration, as it is essential to their interests to do so, but with regard to ritual law, it is quite plausible that without an explicit injunction, no one will bother to establish a proper system. Nevertheless, he is reluctant to assert such a radical idea without basis in the poskim.[32][1]Devarim 16:18. [2]Throughout our discussion, by semichah we mean the original, Talmudic concept, not the forms of Rabbinic accreditation common today. [3]See Sanhedrin 2b-3a. [4]Mishnah and beraisa Makos 7a. [5]See, e.g., Ramban in his Commentary to the Torah Devarim16:18; Tur Choshen Mishpat siman 1; the extensive discussions of Rav Yerucham Fishel Perlow in his commentary to the Sefer Ha'Mitzvos of Rav Sa'adiah Gaon, minyan shishim ve'chamesh ha'parshios, parshah 1 and Rav Eliezer Yehudah Waldenberg (Shut. Tzitz Eliezer chelek 15 siman 69); and the sources mentioned in the following notes. I am indebted to R. Yehuda Y. Grunwald for bringing R. Perlow's discussion to my attention. [6]Sefer Ha'Mitzvos Aseh #176; Yad Ha'Chazakah Hilchos Sanhedrin 1:2. [7]Ramban ibid. (as understood by Lechem Mishnah, Lechem Yehudah,Rav Perlow ibid., and others, but see next note); Kesef Mishnah ibid. in his second approach; Lechem Yehudah; Rav Perlow (himself). [8]Kessef Mishnah ibid. in his first approach; Lechem Mishnah ibid.;Mirkeves Ha'Mishnah ibid. (he explains that this is actually Ramban's understanding, too); Chak Nasan ibid. [9]Commentary of Radvaz to Rambam ibid. [10]The Sefer Ha'Chinuch (#491), however, clearly limits the commandment to Eretz Yisrael. [11]Kesef Mishnah ibid. [12]Lechem Yehudah ibid.; Rav Perlow ibid. [13]Ramban ibid.; Tur ibid.; see Lechem Yehudah ibid.; Urim Ve'Tumim siman 1 Urim seif katan 1; Shut. Igros Moshe choshen mishpat chelek 1 siman 1 anaf 3 s.v. Od mashma. [14]Sefer Charedim perek 4, "Mitzvos aseh min ha'torah ha'teluyos be'peh be'kanah ve'efshar le'kayman be'chol yom", os 42. [15]Ibid. os 5. [16]Kesef Kadashim siman 1. [17]Ibid. [18]Gittin 88b; Sanhedrin 2b-3a. [19]Tosafos Gittin ibid. s.v. Be'milsa de'shechichah. [20]Nesivos Ha'Mishpat siman 1 Biurim seif katan 1. [21]Ibid. [22]Ibid. osios 8-10. [23]But see Nachal Yitzchak (at the very beginning of choshen mishpat) who cites Nesivos but nevertheless concludes that the normative view is that of the rishonim, that the mechanism ofshlichusayhu is merely Rabbinic. [24]Choshen mishpat siman 1 os 3. [25]Sanhedrin 2b s.v. Le'ba'iy nami mumchin; Gittin 88b s.v.Lifneihem ve'lo lifnei hedyotos. [26]Urim Ve'Tumim siman 1 Tumim end of seif katan 1. [27]Ketzos Ha'Choshen siman 3 seif katan 1. [28]See Hagahos Ha'Remach 5:8 (cited in Kesef Mishnah); Shach choshen mishpat siman 3 seif katan 1; Ketzos Ha'Choshen siman 3seif katan 1; Nesivos Ha'Mishpat siman 3 Biurim seif katan 1; Shut. Avnei Nezer choshen mishpat siman 1; Nachal Yitzchak siman 3. [29]Kiryas Sefer end of perek 5. See Tzitz Eliezer ibid. os 4 for analysis. [30]Ibid. [31]Ibid. [32]Ibid.