The Requirement of "Semukhin"

Ideally, a valid halakhic Beit Din must be comprised of 'semukhin' - individuals who have not just acquired sufficient knowledge, but also received ordination which has been transmitted from Rebbe to talmid throughout the generations, originating from Moshe's original ordination of the seventy elders described in Parashat Beha'alotekha. Soon after the destruction of the second Mikdash, this tradition vanished and has yet to be restored (though a highly controversial and unsuccessful attempt to resuscitate it was launched during the 16^th century). In the aftermath of this loss, Chakhamim established limited judicial authority for non-semukhin, and it is under these terms that modern Batei Din operate.  What meaning does halakha associate with this title, and how are we to classify the activity of non-semukhin, at a Biblical level, prior to Rabbinic adjustments validating limited activity by non-Semukhin?

Presumably, we should first identify the source for the requirement that judges possess this ordination. Rashi in Sanhedrin (3b) infers the halakha from the oft-repeated term in Parashat Mishpatim employed to describe a court: 'Elohim' (see Shemot 22 for three such instances). As Rashi indicates, this term connotes eminence and authority – presumably traits possessed by those with ordination. What makes Rashi so intriguing is that the gemara in Gittin (88b) identifies a very different source for the semukhin requirement. The opening verse of Parashat Mishpatim asserts, "These are the edicts you shall pose before THEM." Clearly, the literal meaning of the pasuk refers to Moshe's obligation to clarify the laws of the Torah and arrange them logically before his audience - the entire nation. However, Chazal read additional meaning into this emphatic term - "before THEM." This term, they explain, refers to the court before which one will appear for prosecution and enforcement of these commandments. The gemara infers that all litigation must be presented in front of semukhin – ordained judges - rather than ordinary ones. Tosafot already sensed this possible contradiction between the two potential sources and suggested two approaches of resolution. Their second approach suggests that although the base halakha is derived from the term "Elohim," the term "Lifneihem" (before THEM) establishes the ability of such a Beit Din to enforce their rulings.

          The Ramban (in his comments to Parashat Mishpatim) and the Ran (in his commentary to Sanhedrin) take a different path. The basic law of semukhin is derived from the term Elohim, but "Lifneihem" introduces a very different rule: a prohibition against diverting halakhic litigation from semukhin. The same gemara in Gittin asserts a violation for appearing in heathen courts. Just as heathen courts are forbidden, so are non-ordained ones. Aside from invalidating the verdict of a non-ordained court, the Torah actually forbids us from pleading our case in these arenas.

          The Ramban and Ran thus assert an important concept. We are not allowed to refer our cases to non-ordained courts and, in addition, their rulings carry no legal weight. We might further inspect the disqualification of such verdicts. By establishing ordination as a condition, is the Torah classifying a halakhic Beit Din or profiling a legal judge? Said otherwise, is a verdict issued by non-ordained judges invalid because THEY are not considered judges, or because the court they constitute is not considered a Beit Din? We will supply several nafka minot to help elucidate this question.

          The first type of halakha helpful in deciding our question might be a case where a Beit Din is not necessary, but a halakhically valid verdict is still required. Would such a case require semukhin? Two passages in the Rambam suggest that indeed the semukhin requirement applies even in situations which do not call for Beit Din - suggesting that lack of semikha is, in fact, a flaw with regard to the judge himself.  The Rambam in Hilkhot Sanhedrin implies that ideally, semikha is required to issue rulings pertaining to issur ve-heter. Clearly, questions about meat and milk do not require a formal Beit Din, and can be answered by a posek. If the Rambam still requires semikha, it is probably because he views the requirement as pertaining to the status of a posek, and not a Beit Din.

          A second Rambam appears in Hilkhot Mamrim 3:5, where he rules that a zaken mamrei - an insubordinate judge who circulates a dissenting opinion - is punished only if he is ordained. If he did not receive formal semikha, we do not consider him a disobedient judge, but merely a commoner who argues with the Sanhedrin - certainly not acceptable behavior, but not punishable by death. Again, the Rambam views ordination as vital to the personal status of a judge, and not merely a prerequisite for the court's official status as a legal Beit Din.

An interesting gemara in Nedarim (78a) validates non-semukhin to perform hatarat nedarim (repealing mistaken oaths). Perhaps this allowance stems from the fact that hatarat nedarim is a process which requires not a court, but merely judges. If semikha were a condition of a halakhic court, it would be suspended in situations which do not demand a formal court. In fact, a neighboring gemara in Nedarim (77a) strongly suggests that hatarat nedarim does not require a court. The gemara there allows performing this process on Shabbat (even though legal rulings may not be administered on Shabbat). Abaye and Rav Yosef debate the extent of this allowance, whether certain forms of hatarat nedarim should be disallowed since they RESEMBLE 'din.' It seems unanimous, however, that hatarat nedarim is not actually defined as 'din' – only as that which might resemble din. In fact, several Rishonim (see Ran and Rosh) actually question the need for three people to repeal a neder. After all, if this procedure does not require a court (and hence the suspension of the semukhin requirement), why must three people participate in the process? This gemara implies a contradictory position to the Rambam, who felt that semukhin was a requirement of the actual judge.  Hatarat nedarim which presumably requires judges but does not necessitate a Court can be performed without semukhin.

One final case must be addressed: that of a Beit Din supervising chalitza - a Beit Din which the gemara in Yevamot informs us may also be comprised of non-ordained judges. Presumably, this halakha suggests – similar to our previous discussion - that semikha is merely a requirement for a Beit Din, and chalitza may not require a Beit Din. As such, this gemera would be reminiscent of the aforementioned gemara, which allows non-semukhin to process hatarat nedarim. However, the gemara's initial comments to the mishna are quite provocative: "Since even non-ordained are permitted, why do we require judges at all?"  At this point, rather than defending the need for judges – albeit non-semukhin, the gemara seems to shift course, when it continues, "We need three people who can read the parasha in Ki Tetze (which is publicly read during the chalitza ceremony)." The simple reading of the gemara suggests that chalitza does not require judges at all, but merely literate individuals who may conduct the required reading. The gemara ends on an ambiguous note, and Tosafot's comments merely highlight that ambiguity.  A different gemara proposes an extra iteration of the term 'zaken' to validate non-semukhin. Tosafot claim that the mere employment of the term 'zekeinim' should render the validity of non-semukhin obvious (as several gemarot interpret the term 'zekeinim' as referring to common people). Tosafot respond that since the Torah describes the zekeinim presiding over the ceremony as located in the 'sha'ar' (the gates of the city, normally the site of ancient courts), we might have thought that they constitute a formal court and require semikha.  Hence, it becomes necessary to include an extra iteration of the word 'zaken' to inform us that even non-semukhin will suffice. Again, it is unclear from Tosafot whether in fact the presiding individuals constitute a Beit Din or not. This conclusion is crucial toward helping us understand the nature of the semukhin requirement.