by R. Moshe Kurtz
Lomdus on the Parsha: Shoftim
Based on the Acclaimed Sefer Chavatzeles HaSharon
Q: Are there real Rabbinical judges these days?
Judges and officers shall you make for you in all your gates, which the Lord your God gives you, throughout your tribes: and they shall judge the people with righteous judgment. (Deuteronomy 16:18)
The Ramban asserts that the mitzvah of appointing judges is no longer operative today:
This mitzvah [to appoint judges] applies at all times in regards to monetary matters as well as to matters addressed in the Diaspora. But nowadays, after the tradition of semichah (Rabbinical ordination) has been lost…we are no longer obligated in the mitzvah of appointing judges at all.
However, even in the absence of the bona fide, original semichah, it would appear that contemporary judges still do carry a degree of authority and thus the commandment to appoint judges should still remain in effect. This point emerges from Tosafos (Kiddushin 62b, s.v. Ger) who reckon with how in the absence of semichah it is still possible to perform conversions nowadays. (A) One answer suggests that the word l’doroseichem guarantees that the Jewish people will always be able to accept converts no matter the particular generation. (B) The second answer expands on the idea of shlichusayhu (see Gittin 88b; Bava Kamma 84b) which means that the rabbis of today serve in the stead of the earlier generations who possessed semichah, thus operating as their agents.
(B) The Nesivos HaMishpat (1:1) infers that the approach which adopts shlichusayhu as the license for contemporary conversion seemingly holds that shlichusayhu operates on a Biblical level. Otherwise, any convert would only be considered a Jew Rabbinically and thus unable to function as full member of the Jewish people any time they would want to help others fulfill obligations (e.g. blowing shofar for men who were born Jewish) since one needs to be of equal or greater level of obligation in order to facilitate a mitzvah on behalf of others. (See also the Ketzos HaChoshen 34:1 who addresses the assumption that conversions are only Rabbinical and the implications for a man born Jewish who attempts to betroth a convert’s wife on a Biblical level.)
(A) It would also be unreasonable to assume that those who opted not to employ shlichusayhu held that it only operated on a Rabbinical level and had to resort to offering an alternative explanation – i.e. a localized exception unique to conversion law (see, for example, Rashba on Yevamos 46b).
According to the proponents of shlichusayhu, how could one claim that the mitzvah of appointing judges is no longer operative when we clearly need to appoint judges who are empowered by the ancient Sages in order to manage matters such as contemporary conversions?
R. Mordechai Carlebach answers that there are two halachic categories that do not always go hand-in-hand. On one level, shlichusayhu tells us that the rulings of judges today are binding and there is an ancillary prohibition of turning to a lesser court of hedyotos. However, only judges with actual semichah are regarded with the title “elohim.” In other words, while learned scholars can sit on councils to adjudicate today’s common legal matters, they do not hold the ultimate rank of a master judiciary.
A practical ramification of this distinction is found in the Tumim (27:2), in addressing the Sema (27:5), who suggests that the sin of cursing a judge only applies to judges with the status of elohim and not simply those who are empowered indirectly through shlichusayhu (see also Minchas Chinuch 69:5). Thus, when the Ramban et al maintain that the mitzvah of appointing judges no longer applies, perhaps it is because this mitzvah refers to the real McCoy, those who hold the rank of elohim – a status which is regrettably no longer attainable today.
Despite being in exile for many years, we have been blessed with incredible Torah luminaries who have continued to deepen our understanding of God’s Torah. While we are fortunate to have virtually limitless ways to learn Torah, we still pray that the words of the prophet be fulfilled:
And I will restore your judges as at the first, and your counselors as at the beginning: afterwards you shall be called, The city of righteousness, a faithful city” (Isaiah 1:26).
Note: This series is not intended to dispense practical halachic conclusions. The Torah presented here is but a small extraction from the breadth of the sefer Chavatzeles HaSharon and is not affiliated with the author in any official capacity. Translations are adapted from Sefaria, Chabad.org, Mechon Mamre, and my own. Contact: [email protected]