Halakhah sur L’Exode 22:7

Yet, collectively and individually, the American Jewish community is guilty of continuous and ongoing violation of one of the six hundred and thirteen commandments. "Judges and court officers shall you place unto yourself in all your gates (Deuteronomy 16:17) is cited by numerous early authorities, including Rambam, Sefer ha-Mizvot, mizvot aseh, no. 176 and Hilkhot Sanhedrin 1:1; Sefer Mizvot Gadol, esin, no. 87; and Sefer ha-Hinnukh, no. 491, as establishing an obligation to institute ecclesiastic courts, or Batei Din, in every locale. Rambam, Hilkhot Sanhedrin 1:2, explicitly rules that the commandment is binding, not only in the Land of Israel, but in the Diaspora as well.¹There is no suggestion in Rambam’s statement indicating that the commandment is no longer binding in our day. See Kiryat Sefer, Hilkhot Sanhedrin, chap. 5. See also Revid ha-Zahav, Exodus 22:7 and Netivot ha-Mishpat 1:1.
A somewhat different view is expressed by Ramban in his commentary on the Bible, Deuteronomy 16:18. Ramban asserts that the biblical command applies only to the appointment of judges who have been ordained, i.e., the recipients of the unbroken chain of semikhah, or ordination, originating in Moses’ conferral of ordination upon the judges appointed by him in the wilderness. Subsequent to the abrogation of semikhah during the period of Roman persecution, rabbinic courts enjoy limited authority as the “agents” of the judges of antiquity. Their authority, asserts Ramban, is rooted in rabbinic edict. Since such courts lack authority in biblical law, their establishment cannot be mandated by biblical law and, accordingly, Ramban concludes, “we are not at all biblically obligated with regard to the commandment concerning appointment of judges” (emphasis added). The implication is that the obligation continues in our day by virtue of rabbinic decree as a concomitant of the rabbinic legislation establishing the authority of non-ordained judges. Rabbenu Yerucham, Sefer Meisharim 1:4, explicitly declares that, in the absence of ordained judges, the obligation to establish Batei Din is rabbinic in nature.
Ramban’s assertion that appointment of judges is no longer biblically mandated is predicated upon his formulation of the antecedent premise that the “agency” of present-day rabbinic courts is rooted in rabbinic legislation. That view is also espoused by Ran, Sanhedrin 23a; Ramah, Sanhedrin 23a; Rashba, Gittin 88b; Ramban himself, Sanhedrin 23a; and Tur Shulḥan Arukh, Ḥoshen Mishpat 1:3. However, elsewhere, Yevamot 46b, s.v. shemat minah, Ramban concludes his comments with the remark that “it is possible” that the authority of non-ordained judges to act as “agents” of the ordained judges of an earlier era is biblical in nature. Cf. also the comments of Me’iri, Bet ha-Beḥirah, Baba Kamma 84b, also cited in Shitah Mekubeẓet, ad locum, to the effect that, absent such a rule, all biblical laws regarding jurisprudence would be abrogated and the world would be destroyed. If, even in our day, authority to sit in judgment continues to be rooted in biblical law, it then follows that establishment of Batei Din remains a biblical obligation. Cf., Imrei Binah, Ḥoshen Mishpat, chap. 1 and Encyclopedia Talmudit, III, 2nd ed. (Jerusalem, 5715), p. 162, note 366a. The sole distinction between the Land of Israel and the Diaspora with regard to the ambit of this commandment is that the obligation to establish Batei Din in each district is limited to the Land of Israel, while the obligation to establish Batei Din in each city is binding in the Diaspora as well. Kesef Mishneh, on the basis of a statement in the Gemara, Makkot 7a, suggests that the Maimonidean text should read that the obligation incumbent in the Diaspora is to appoint judges in every district, but not in each city.²For citation of sources regarding the role and function of regional Batei Din see Encyclopedia Talmudit, III, 151.