Positive Commandment 176 (Digest)
Establishing a Judicial System
"Appoint judges and officers in all your gates"—Deuteronomy 16:18.
We are commanded to appoint judges who will implement the Torah's commandments, and compel those who stray from the true path to follow the mitzvot. They will command regarding the performance of the good, and warn against doing evil, and will implement punishments against those who transgress. This in order that the observance of the commandments and prohibitions of the Torah not be given to the discretion of each individual.
Included in this mitzvah is the establishment of a judicial hierarchy.
* A court of 23 judges is established in every city that meets a minimum population requirement. This court, called a sanhedrei ketanah(a "small court"), convenes at the gate of the city. A city that does not have sufficient population to warrant a 23-member court should, at the very least, have a 3-member court, which presides over minor matters, and forwards larger matters to a court above them.
The local courts appoint inspectors to monitor the markets and ensure that people conduct business with honesty, so that not even slight injustices are perpetrated.
* Every tribe has its own "supreme court."
* In Jerusalem sits the beit din hagadol(the "high court") consisting of 70 judges in addition to the chief presiding justice. This individual is also known as the Nasi. This court gathers in the location designated for them [in a chamber in the Holy Temple].
Unabridged English Text of this Mitzvah »
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> The 176th mitzvah is that we are commanded to appoint judges;) to implement the Torah's commands; to force those who have turned away from the path of truth to return to it; to command the performance of good and the avoidance of bad; and to carry out the punishment of transgressors, so that the positive commandments of the Torah and their prohibitions should not be dependent on the desire of every individual.
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> Included in this mitzvah is that these judges be appointed in a hierarchy. In an appropriate;) city, 23 judges are appointed who meet together by the gate to the city. This is a "small Sanhedrin." In Jerusalem, the High Court of 70 judges is appointed. One — the Rosh Yeshivah, also called the Nasi by the Sages — is appointed over these 70. They gathered together in the place singled out for them.;) In a place where the population is too small for a "small Sanhedrin," three judges are nevertheless appointed to carry out minor judgments, and to pass along more major cases to the next highest court.
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> In addition, inspectors are appointed to visit the markets and inspect peoples' business practices, in order to insure that even the slightest injustice does not occur.
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> The source of this mitzvah is G‑d's statement,;) "Appoint yourselves judges and police for all your settlements [that G‑d your L‑rd is giving you for your tribes, and they shall judge the people...]."
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> In the words of the Sifri: "What is the source for the law that one court is appointed over the entire Jewish people? From the verse, 'Appoint yourselves judges and police.' How do we know that one is appointed over everyone? From the phrase, 'Appoint yourselves.' How do we know that a court must be appointed for each tribe? From the phrase, 'for all your settlements.' Rabbi Shimon ben Gamliel said, 'The phrase "for your tribes, and they shall judge [the people]" indicates that each tribe has the responsibility to judge the members of its tribe. The phrase, "and they shall judge the people," implies that they should do so even against their will.' "
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> The commandment to appoint 70 judges is repeated elsewhere in the Torah, in G‑d's statement;) (exalted be He), to Moshe, "Assemble 70 men for Me from the elder of Israel." Our Sages explained,;) "Anytime the phrase 'for Me' is used, it implies that it will last forever, such as,;) 'Sanctify them to Me as priests.' " This means that this commandment was not just temporary but eternal for all generations.
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> You should be aware that all these appointments, i.e. the great Sanhedrin, the small Sanhedrin, the court of three, and all other appointments, only take place in Israel. There is no ordination outside of Israel. But when ordination is in effect in Israel, those who were already ordained are allowed to judge both in Israel and outside of Israel.
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> However, cases involving capital punishment may not be judged — neither inside nor outside Israel — unless the Holy Temple is standing, as we explained in the Introduction to this work.
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> On G‑d's statement;) (exalted be He) regarding a person who killed accidentally, "They shall be for you as an eternal law for all your generations, wherever you may live," the Sifri said, "The phrase, 'wherever you may live,' means both inside Israel and outside of Israel. One might think that there should be cities of refuge outside of Israel; the verse therefore says, 'these' — these laws;) are in effect both inside Israel and outside of Israel, but the cities of refuge are only inside Israel."
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> All the details of this mitzvah are explained in tractate Sanhedrin.
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> Footnotes
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> Although the verse mentions judges and police, the Rambam mentions only judges. See Kapach, 5731, footnote 76. Likkutei Sichos, Vol. 34, p. 98ff; Sefer HaSichos 5751, Vol. II, pp. 781-2.
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> Having at least 120 inhabitants. See Sanhedrin 2b.
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> The Lishkas Hagazis in the Temple.
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> Deut. 16:18.
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> Num. 11:16.
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> Sifri, Behaaloscha.
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> Ex. 28:41.
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> Num. 35:29.
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> I.e. the other laws regarding the accidental murderer, with the exception of those laws relating to the cities of refuge.
Negative Commandment 284 (Digest)
Appointing an Unqualified Judge
"Do not respect persons in judgment"—Deuteronomy 1:17.
It is forbidden for the Rabbinic Supreme Court or the Exilarch to appoint a judge who is not versed in Torah wisdom, though the individual possesses other qualities.
For example, one may not say, "I'll appoint this individual because he is handsome, powerful, related to me, lent me money, or proficient in many languages." Such an appointee is liable to pervert justice—not out of maliciousness, but out of ignorance.
Rather, with regard to all Torah appointments, we only consider the candidate's proficiency in Torah and knowledge of its commands and prohibitions, and that his personal behavior should be in concordance with this knowledge.
Unabridged English Text of this Mitzvah »
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> The 284th prohibition is that the High Court or the Rosh Golus;) are forbidden from relying on an individual's [other] qualities and appointing him as judge although he is not expert in the Torah's wisdom. In all appointments regarding Torah, we may look only at the person's expertise in the Torah's wisdom, knowledge of its positive commandments and prohibitions, and behavior suitable to [that knowledge].
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> The source of this prohibition to make an appointment based on other factors is G‑d's statement;) (exalted be He), "Do not give anyone special consideration regarding judgment."
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> In the words of the Sifri: "The verse, 'Do not give anyone special consideration regarding judgment' refers to the one who appoints judges." This means that this prohibition only applies to the person who has the ability to appoint judges. This person is forbidden from making such an appointment based on other considerations, as mentioned above. Our Sages said: "One should not say, 'I will appoint this person as a judge because he is attractive'; 'I will appoint this person as a judge because he is strong'; 'I will appoint this person as a judge because he is my relative'; 'I will appoint this person as a judge because he lent me money'; 'I will appoint this person as a judge because he knows all languages.' " He will end up acquitting the guilty and convicting the innocent— not because he is wicked but because of his ignorance. Therefore the Torah says, "Do not give anyone special consideration regarding judgment."
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> The head of Babylonian Jewry.
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> Deut. 1:17.
Positive Commandment 175 (Digest)
Abiding by the Majority Decision
"To follow the majority"—Exodus 23:2.
We are commanded to follow the opinion of the majority in case of disagreement between the sages with regard to any Torah law. This mitzvah also applies to adjudication between litigants, if there is no consensus amongst the local judges regarding which party is in the right and which is in the wrong.
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> The 175th mitzvah is that we are commanded to follow majority rule when the Sages disagree about a particular law of the Torah. The same applies to a particular case: if, for example, the judges of the city disagree regarding a case between Reuven and Shimon as to which one owes money, they must follow majority rule.
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> The source of this mitzvah is G‑d's statement;) (exalted be He), "A case must be decided based on majority rule."
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> Our Sages said explicitly,;) "Majority rule is mid'oraisa.;)
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> The details of this mitzvah are explained in many passages of tractate Sanhedrin.
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> Ex. 23:2.
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> Chullin 11a.
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> Of Torah law, rather than of Rabbinic origin. This statement shows that this mitzvah counts among the 613.