נראין לי הדברים שאם הסכימו כל החכמים שבארץ ישראל למנות דיינים ולסמוך אותם הרי אלו סמוכים ויש להן לדון דיני קנסות ויש להן לסמוך לאחרים, אם כן למה היו החכמים מצטערין על הסמיכה כדי שלא יבטלו דיני קנסות מישראל, לפי שישראל מפוזרין ואי אפשר שיסכימו כולן ואם היה שם סמוך מפי סמוך אינו צריך דעת כולן אלא דן דיני קנסות לכל שהרי נסמך מפי בית דין, והדבר צריך הכרע.
I think that if all of the Sages in the Land of Israel agree to appoint judges and authorize them they are authorized (semuchim) and they may judge punitive cases and also may authorize others. If so, why were our Sages pained over the [lack of] semicha/authority, which would cause punitive law to be forgotten in Israel? Because Israel are scattered and it’s impossible to achieve consensus, and if there would be a samuch from a samuch there need not be a consensus, rather, he may judge punitive cases for all since he was authorized by the court, and this matter requires a decision.
The history of this statement is a fascinating one. There have been attempts to renew the semicha, based on this passage in the Rambam (and its parallel in his commentary on the Mishna) in the 16th, 20th, and 21st centuries. The first produced a major controversy between Mahar”I Berab in Tzefat and R’ Levi ibn Habib (Ralba”ch) in Jerusalem. Ralba”ch recorded the literature of the controversy in a very long and boring treatise called ‘Kuntress Ha-Semicha’ of all things. In the 20th century, there were those, especially R’ Maimon, who saw the establishment of the State of Israel as an opportunity to renew the Sanhedrin, and there is a group today that believes that they have renewed the Snahedrin.
I’m more interested in a different aspect of this issue, which is generally overlooked: What thought process led the Rambam to suggest something so unprecedented? Why did he think that this would work?
The Rambam, from what he writes and how he structures his writing in the few several chapters of Hilchot Sanhedrin, sees Semicha as the mechanism by which the mitzvah to appointed judges was carried out. This mitzvah appears at the very beginning of the parsha we just read, and is a central mitzvah to the establishment of a sovereign Israel. The Rambam, unlike other Rishonim, holds that this mitzvah only applies in Israel. The judicial system mandated by these verses is part of the very fabric of the civilization that the Torah articulates throughout the Book of Devarim.
This mitzvah is not a personal one, but a ‘national’ one. The original mechanism, however, was consolidated in the hands of a select few. Rambam is saying that the breakdown of the ancient mode of appointing judges in no way minimizes the obligation that we, as a nation, have to create a judicial system. For the Rambam, it’s completely inconceivable that a national obligation as central as creating an authoritative court system would be relegated to dead-letter status for what’s essentially a technical reason, namely, the failure of the mechanism by which judges are selected. Given that it’s a national mitzvah, if the nation as a whole can express its will, then the same function as semicha will have been served. The fact that it’s only the ‘chakhamim’ and not ‘everyone’ who participates in the expression of the will of the nation as a whole should surprise neither those who are familiar with the Rambam’s thinking nor those who are familiar with the Greek political tradition.