וְעַל־רִ֗יב הֵ֚מָּה יַעַמְד֣וּ לשפט [לְמִשְׁפָּ֔ט] בְּמִשְׁפָּטַ֖י ושפטהו [יִשְׁפְּט֑וּהוּ] וְאֶת־תּוֹרֹתַ֤י וְאֶת־חֻקֹּתַי֙ בְּכָל־מוֹעֲדַ֣י יִשְׁמֹ֔רוּ וְאֶת־שַׁבְּתוֹתַ֖י יְקַדֵּֽשׁוּ׃
Dans les litiges, ce sont eux qui exerceront la justice, et ils prononceront d’après mes lois; ils observeront mes doctrines et mes statuts pour toutes mes solennités et ils sanctifieront mes sabbats.
Tur HaArokh
שופטים ושוטרים, “Judges and enforcement officers,” Moses appended this portion immediately after that dealing with the festivals involving pilgrimage to Jerusalem, to tell us that although he commanded us to make the pilgrimages to the place where the priests perform their service and you have an opportunity to consult with them on any matter that is of concern to you, be it of a legal or ritual nature, this is not sufficient, and you must appoint the appropriate mechanism in every city, i.e. judges and enforcement officers. Nachmanides writes that actually, already in Exodus 21,6 and 22,7 the Torah clearly presumed the existence of a judiciary, i.e. אלהים, as well as פלילים; the addition here is the command to appoint enforcers of the judgments handed down. Here we also learn that such institutions must be established in all towns in the land of Israel. When someone feels that he has been wronged, it is up to him to cry out, i.e. to demand that the judges meet to hear his complaint. (Compare Ezekiel 44,24) According to what is written here, Jewish communities in the Diaspora do not require permanent courts, etc., but these are convened on an ad hoc basis. This is also the view of Maimonides (hilchot Sanhedrin 1,2).
Ramban
JUDGES ‘V’SHOTRIM’ SHALT THOU MAKE THEE IN ALL THY GATES WHICH THE ETERNAL THY G-D GIVETH THEE. He has commanded in the Torah, the word of both parties shall come before ha’elohim (the judges);1Exodus 22:8. Ha’elohim indicates that “the judges” had received ordination. and he shall pay as the judges determine.2Ibid., 21:22. If so, He commanded [by implication] that Israel is to have judges, and here he [Moses] explained that they are to appoint judges in all their cities when G-d will give them the Land. For outside of the Land they are not required to appoint a court for themselves; rather, when an aggrieved party complains, people qualified to judge are to arise for him and according to their ordinances shall they judge it.3Ezekiel 44:24. Or the parties are to go up to the Land in the proper time [i.e., when there are courts of ordained judges functioning in the Land of Israel],4Thus, when there are courts of ordained judges functioning in the Land of Israel, Jews living outside of the Land are not obligated to appoint judges, for, if there is some litigation between them they can appear before the judges in the Land. — On ordination, see further Note 8; also, Vol. II, p. 339, Note 20. and there, they will adjudicate it in the place of righteousness. He added here [that it is obligatory to appoint] shotrim, who are the ones that execute the judgment.
Accordingly, Israelites living outside of the Land are not commanded to appoint for themselves judges in the cities. And so wrote Harav Rabbi Moshe ben Maimon.5Mishneh Torah, Shoftim, Hilchoth Sanhedrin 1:2. But in Tractate Makkoth the Rabbis have taught:6Makkoth 7a. “And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings.7Numbers 35:29. This teaches that the laws of Sanhedrin are binding both within and without the Land. If so, why is it stated Judges and officers shalt thou make thee in all thy gates? In the Land you are to appoint [judges] in every district and in every city; outside the Land you are to appoint [judges] in every district, but you are not obligated to do so in every city.” From this text it would appear that we are required to appoint a Sanhedrin outside the Land — not in every city as in the Land of Israel, but in every district. If so, this commandment is binding at all times in civil cases and in matters that may be adjudicated outside the Land. Nowadays, however, that ordination has ceased,8Ordination was the process of investiture with judicial rights and functions which had continued in an unbroken chain from Moses our teacher. Since ordination was valid only if both the ordainers and the ordained were in the Land of Israel, this process of investiture ceased to exist sometime in the middle of the fourth century [Common Era] because the severe Roman persecutions of the Jews in the Land of Israel forced them to migrate to Babylon and elsewhere. According to Rambam, if all Sages in the Land of Israel would agree to reinstitute ordination, they are empowered to do so (Mishneh Torah, Shoftim, Hilchoth Sanhedrin 4:11). Such an attempt was made by Rabbi Yaakov Beirav of Safed in the middle of the sixteenth century in the days of Rabbi Yoseph Karo, author of the Shulchan Aruch. The attempt failed for various reasons, one of them being that Rambam concluded his statement with the equivocal phrase “and the matter needs yet a final decision.” since, according to Torah-law, all judicial functions are void — for it is written, “[And these are the ordinances which thou shalt set] before them,9Exodus 21:1. and not before commoners ”10Gittin 88b. and we [not being ordained,] are commoners, and would not be empowered to adjudicate outside the Land except for the Rabbinical ordinance that we “carry out the commission of the former ones [who had received ordination]”11By this principle judges are empowered nowadays to adjudicate matters which are common occurrences and involve monetary losses, such as loans, Kethubah (marriage contract), inheritance, damages, etc. But matters not of common occurrence [such as one animal damaging another] or not involving a monetary loss [such as the additional amount levied as a fine upon returning stolen goods] are not enforceable. See Choshen Mishpat, I, for further clarification of this principle. — we are not at all bound, according to Torah-law, by the commandment to appoint judges.
Accordingly, Israelites living outside of the Land are not commanded to appoint for themselves judges in the cities. And so wrote Harav Rabbi Moshe ben Maimon.5Mishneh Torah, Shoftim, Hilchoth Sanhedrin 1:2. But in Tractate Makkoth the Rabbis have taught:6Makkoth 7a. “And these things shall be for a statute of judgment unto you throughout your generations in all your dwellings.7Numbers 35:29. This teaches that the laws of Sanhedrin are binding both within and without the Land. If so, why is it stated Judges and officers shalt thou make thee in all thy gates? In the Land you are to appoint [judges] in every district and in every city; outside the Land you are to appoint [judges] in every district, but you are not obligated to do so in every city.” From this text it would appear that we are required to appoint a Sanhedrin outside the Land — not in every city as in the Land of Israel, but in every district. If so, this commandment is binding at all times in civil cases and in matters that may be adjudicated outside the Land. Nowadays, however, that ordination has ceased,8Ordination was the process of investiture with judicial rights and functions which had continued in an unbroken chain from Moses our teacher. Since ordination was valid only if both the ordainers and the ordained were in the Land of Israel, this process of investiture ceased to exist sometime in the middle of the fourth century [Common Era] because the severe Roman persecutions of the Jews in the Land of Israel forced them to migrate to Babylon and elsewhere. According to Rambam, if all Sages in the Land of Israel would agree to reinstitute ordination, they are empowered to do so (Mishneh Torah, Shoftim, Hilchoth Sanhedrin 4:11). Such an attempt was made by Rabbi Yaakov Beirav of Safed in the middle of the sixteenth century in the days of Rabbi Yoseph Karo, author of the Shulchan Aruch. The attempt failed for various reasons, one of them being that Rambam concluded his statement with the equivocal phrase “and the matter needs yet a final decision.” since, according to Torah-law, all judicial functions are void — for it is written, “[And these are the ordinances which thou shalt set] before them,9Exodus 21:1. and not before commoners ”10Gittin 88b. and we [not being ordained,] are commoners, and would not be empowered to adjudicate outside the Land except for the Rabbinical ordinance that we “carry out the commission of the former ones [who had received ordination]”11By this principle judges are empowered nowadays to adjudicate matters which are common occurrences and involve monetary losses, such as loans, Kethubah (marriage contract), inheritance, damages, etc. But matters not of common occurrence [such as one animal damaging another] or not involving a monetary loss [such as the additional amount levied as a fine upon returning stolen goods] are not enforceable. See Choshen Mishpat, I, for further clarification of this principle. — we are not at all bound, according to Torah-law, by the commandment to appoint judges.