Halakha Ulangan 16:18: Arukh HaShulchan, Shulchan Arukh, Choshen Mishpat, Tur & Mishneh Torah, Rest

The law of appointment of Judges in our days and the days of the Temple and in it are 26 paragraphs All that is explained in these laws is only with the permission of the Exalted Czar, for the law of the King is the law.
It is a positive commandment from the Torah to appoint Judges as it says (Devarim 16:18) Judges and (Enforcement) Officers you should appoint for yourselves. And they need to have Semikha from the Land of Israel specifically. That is, 3 wise men and one of them that has Semikha (Rambam, Sanhedrin Chapter 4, Halacha 3) when they see a wise man that is fit to judge and issue rulings, they should give Semikha and call him Rebbe (Rabbi).

Nowadays¹e., after the dissolution of the Jewish Commonwealth. Derived from Git. 88b; B.K. 84b; San. 2b-3a, according to which non-Mumḥin (v. infra. n. 13) may adjudicate cases of admissions and transaction of loans which are matters of frequent occurrence and involve a monetary loss, thereby carrying out the commission of the Sanhedrin of the Land of Israel. The present ruling applies today to the Land of Israel too. Cf. Git. ibid., Tosaf. s.v. במלתא. Thus also Asheri and Tur. The underlying reason for this law is given by the Codifiers as follows: ‘Judges and officers thou shalt make thee in all thy gates which the Lord thy G-d giveth thee tribe by tribe (Deut. XVI, 18. This has reference to the Land of Israel only) — (this means that) in your gates (i.e., in Israel) tribunals should be set up in every district as well as in every city. However, outside the Land (of Israel) you should set up tribunals in every district but not in every city’ (Mak. 7a). This, of course, applied only to those times when the original form of ‘ordination’ (Semikah, סמיכה) was in vogue, but nowadays all judges have no authoritative power to adjudicate legal questions Biblically, as it is written, — ‘And these are the judgments which thou shalt set before them (Ex. XXI, 1) — before them (i.e., authoritative judges, specially ordained) and not before non-Mumḥin (laymen judges)’ — Git. ibid. Consequently, today we merely act as agents of the former authoritative judges and deal only with matters of frequent occurrence which also involve a monetary loss (Tur) — M.E. On the question whether we carry out today the commission of the former duly ordained judges Rabbinically or Biblically, there is a difference of opinion among the Codifiers. N and RaShBA hold that our commission is Rabbinical. Nethiboth maintains that it is Biblical. the Judges may adjudicate cases of admissions²Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. and transaction of loans,²Heb. הודאות admissions. This refers to proceedings resting on evidence of witnesses attesting to the defendant’s admission of his indebtedness. הלוואות transaction of loans has reference to evidence offered by witnesses who were present at the time of the transaction of the loan. Today the judges may also deal with cases where there are no witnesses, e.g., where one has to take a consuetudinal or equitable oath (שבועת היסת i.e., if one who is sued for a debt denies the latter entirely (כופר הכל) in contradistinction to the legal or Biblical oath which is required when the defendant admits a part of the claim (מודה במקצת), it being presumed that nobody will go to law unless he have a claim. Consequently, it is a matter of equity to put the opponent to an oath, to which he may in turn put the claimant — M.E. marriage contracts,³Containing among other things, the settlement of a certain amount due to the wife on her husband’s death or on being divorced. Heb. Kethubah (כתובה), — the wife’s settlement. inheritances,⁴Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. gifts⁴Thus Asheri and Tur derived from San. 3a, Tosaf. s.v. שלא. and damage done to another person's chattel,⁵Yad, Sanhedrin V, 9 derived from B.K. ibid. which are matters that are of frequent occurrence and involve a monetary loss;⁶In the case of ‘inheritances’ and ‘gifts’ which are of frequent occurrence there is also the possibility of a loss involved, for no doubt the claimant must have rendered some service to the bequeather or the donor (Thus A.H.). The underlying reason in the case of admissions and the transaction of loans is ‘in order not to shut the door against borrowers’ (שלא תנעול דלת בפני לווין). For a creditor will refuse to grant a loan should he find it difficult to collect his debt. The same reason applies to the other matters enumerated here. This (viz., that we deal only with matters of frequent occurrence which involve a monetary loss) has reference only to monetary claims. But in the case of other important matters, such as, accepting converts, although it is of infrequent occurrence, or in the case of compelling an obstinate husband to grant his wife a divorce although it does not involve a monetary loss, the law is that we may deal with such cases — M.E. but matters that are not of frequent occurrence although they involve a monetary loss,⁷Yad ibid. e.g., cattle that injured other [cattle],⁸As a result of goring with the ‘horn’ (קרן) which is of infrequent occurrence. This, of course, refers not only to damage caused by ‘horn’ but also to all other types of injury or damage of infrequent occurrence (e.g., damage caused by ‘fire’ and ‘pit’ (אש זבור) — Shak. Mishna B.K. I, P.Tesh., however, cites authorities who permit a Jewish Court today to deal in matters pertaining to damage caused by ‘fire’ and ‘pit’). This form of damage is called חבלה. Hence, the term שחבלה used here. In the case of damage or injury which is of frequent occurrence and involves a monetary loss, the legal term used is היזק. infra par. 3 — M.E. or matters that do not involve a monetary loss although they are of frequent occurrence,⁷Yad ibid. e.g., the repayment of the double amount,⁹e., the additional amount to be paid as fine on restoring stolen goods (Ex. XXII, 3; 6-8). This is derived from San. 8a where it is stated that cases of fine must be dealt with by three authoritative Judges (Mumḥin), but not laymen Judges. The repayment of the double amount (תשלומי כפל), it may be asked, in any case belongs to the category of fines (קנסות) mentioned anon, and the payment thereof is collected only by authoritative judges (Mumḥin)? Furthermore, Tur has בושת i.e., payment for indignity suffered which is of frequent occurrence although there is no monetary loss involved. Likewise, in the foregoing example of matters of infrequent occurrence although there is no monetary loss involved, Tur has ‘e.g., if a man injured another man’ instead of Caro’s example (following Maim. in Yad ibid.) ‘cattle that injured other cattle’. The difficulty may be removed if we understand our text as follows: First Caro states examples (e.g., the repayment of the double amount and cattle that injured other cattle) which are specifically of a penal nature (קנס) and then the general proviso, ‘and likewise all fines’ which the Rabbis equated to these examples. Consequently, the examples cited by Tur are included in the general statement concerning fines — M.E. and likewise, all fines that were imposed by the Sages,¹⁰B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. as [in the case of] one who boxes his neighbour's [ear] — The meaning [of Toke'a should be understood as] 'He shouts in a [loud] voice into his [neighbour's] ear and frightens him¹⁰B.K. ibid. dealing with a case where R. Ḥisda consulted R. Naḥman and the latter replied, ‘Ḥisda, Ḥisda, are you really prepared to order the collection of fines in Babylon?’ Cf. also B.K. 27b. For the right to collect fines was confined only to the Judges of the land of Israel. — or as [in the case of] one who slaps his neighbour — e., He strikes [him] with his hand on the cheek¹¹, Mishna B.K. VIII, 6(90a). Cf. infra § 420, 4 Caro adopts Maim. (Yad ibid.) explanation of תוקע; Isserless accepts the explanation of Rashi and RaN (v. B.K. 90a and Kid. 11b, Rashi s.v. התוקע and cf. RaN ibid.). , B.K. 84b, Rashi s.v. ופגם whence it is implied that if the amount is not definitive it is not regarded as a fine. Yet, since it is of infrequent occurrence and does not involve a monetary loss, we cannot order its collection. The Rabbis, however, called it קנס (fine) because the law thereof is similar to fines. Cf. B.K. 27b, 84b, Tosaf, s.v. קנסא — M.E. — and thus also whosoever pays more than the actual damage done, or one who pays half-damages,¹²B.K. 15b, 27b; Ket. 41b and v. Tur. E.g., the repayment of the double amount (Ex. XXII, 3) or the four or five-fold restitution of stolen goods (Ex. XXI, 37), or on restoring misappropriated property, one fifth of the principal had to be added as a fine (Lev. V, 16, 24; XXVII, 27), or half-damages done by an innocuous animal (תם), i.e., an animal that did not gore three times and did injury before warning had been given, opp. מועד (Ex. XXI, 28-36; B.K. I, 4; II, 4). Cf. infra § 390 and v. Yad ibid. — [the law is that] only authoritative Judges¹³Heb. מומחים i.e., experienced scholars versed in matters of law who alone are referred to by the Scriptural term Elohim meaning ‘Judges’ as in Ex. XXI, 6; XXII, 7-8. , San. 2b; infra § 3, 2. Cf. supra n. duly ordained¹⁴San. 14a. On the question of ‘Ordination’ (סמיכה), v. Yad, Sanhedrin IV and cf. Y.D. § 242; supra n. 1; J.P. Y.D. § 335-403, Int. XI-XI in the Land of Israel may judge it¹⁵e., such a case. save [in the case of the liability for] half-damages [done by] pebbles,¹⁶Kicked by an animal. This is a derivative of ‘foot.’ , B.K. 17a. which is [regarded as] civil and not [as] penal.¹⁷B.K. 15b; Ket. 41b. In addition to the matters mentioned supra, Semikah (Ordination) nowadays is also valid for dealing in matters pertaining to Ḥalizah and Divorce — ShaK.

And this is the intention of our rabbis z”l, when they say, “All who judge a judgement truthfully, it’s as if he is a partner with God in the creation of the world,” because God created the world to continue and the wicked who steal and commit acts of violence ruin the world through their actions. And similarly we find regarding the generation of the flood that the decree of their judgement was sealed only because of theft, as it is written, (Genesis 6:11) “For the earth is filled with violence,” and it says after this, (Genesis 6:13) “I will destroy them with the earth”. What emerges is that the judge who breaks the high arms of the wicked keeps the world going and completes the will of the Creator, blessed is His name, who created it to keep going, and it is as if they become partners with the Holy One ,Blessed Be He, in the creation. Abraham our forefather didn’t know God, and He called him (Isaiah 41:8) “My beloved” because he walked in the ways of justice and guided his children, as it is written, (Genesis 18:19) “For I have known him, to the end that he may command his children and his household after him, that they may keep the way of God, to do righteousness and justice…” And Moses our teacher a”h, master of all prophets, took advice from Yitro with regards to justice, to establish judges to caution Israel and to command them through justice, and God agreed with this. And Joshua afterwards established a covenant with Israel to serve God, he left his last word as justice, as it is written, (Joshua 24:25) “On that day Joshua made a covenant for the people, and there at Shechem he reaffirmed for them laws and justice.” [This is] because justice is the foundation and the great principle in the service of God, and following [Abraham] have each and every judge judged their generation, and bring them back from their evil ways to service of God to go in the way that Abraham paved to do righteousness and justice, and through this were they [i.e. the Jewish people] were saved from their enemies until Samuel the prophet came, God-faithful, (1 Samuel 7:15-16) “who judged Israel all the days of his life. And he went on a circuit year by year to Bethel, Gilgal, and Mizpah. And he judged Israel in all these places.” And our sages tell us that the path he took one year was not the one he took the next, so that he could turn the hearts of the entire nation toward service of God, and to walk in the way of Abraham our forefather a”h, and he anointed David to be the king of Israel, and he too walked in the ways of God from all that was in front of him, as it is written,(2 Samuel 8:15) “And David did justice and righteousness. (1 Chronicles 11:8) “And Joab restored the rest of the city.” And our sages tell us that in the merit of the justice and righteousness of David, Joab restored the rest of the city, and had his child [Solomon] continue after him, the “Yedid Hashem”, who loved to go in the laws of his father David and would ask from God an understanding, listening heart to judge his people, to understand between good and bad, and it was good in God’s eyes, that which he asked regarding this. And He gave him a wise and understanding heart which has never been before, and no one has been like him since, and all of Israel was afraid of him because they saw that the wisdom of God was in his heart to do justice. And also Jehoshaphat, who took the paths of his father and raised his heart in the ways of God, was strengthened in justice, and he appointed judges in every city, and he said to the judges, “See what you do, for you are not judging for man but for God, and with you shall be justice.” Josiah as well, that Scripture testifies about him, “And no king was like him before, who returned to God with all his heart.” And also the King Messiah, who will be revealed speedily in our days, is praised by Scripture regarding justice, and it is written, (Isaiah 11:4) “And he will judge the destitute with justice, and decide with equity for the meek of the earth…” And according to the greatness of his reward will be the punishment for those who void and pervert it, as it is taught, “Destruction comes to the word based on lack of law and on the perversion of law.” And so did David say, (Psalms 119:121) “I have done justice and righteousness, leave me not to my oppressors.” This implies that without justice, he would have been left in the hands off oppressors. And Jerusalem was only destroyed, and Israel only exiled, because of the neglecting of justice, as it is written, (Isaiah 1:21) “She once was full of justice; righteousness used to dwell in her-- but now murderers.”... And God wants it more than all the sacrifices, as it is written, “Doing righteousness and justice is choicier to God than the zevach offerings.” It does not says “than sin and burnt offerings,” but rather “than zevach offerings.”