Many of the mitsvot in this week's parsha (as codified by Rambam and Sefer haHinukh) refer to beit din rather than to any particular person. Thus, mitsvah 47 in the Hinukh obligates beit din to kill by choking those liable for such a penalty, mitsvah 59 obligates them to judge issues of a paid watchman or a renter, and so on. This collection of mitsvot gives us an opportunity to remind ourselves of some issues in the purview of beit din, both of what the system was meant to be, and what it is now.

Many issues that the Torah wanted to be in the power of beit din are currently not, for a couple of reasons. For example, the Hinukh follows Rambam in counting each of the kinds of death penalty (stoning, burning, decapitating, or strangling) as a separate mitsvah. He notes, however, that Ramban considers all of these to be subcategories of u-viarta hara mikirbekhah, the general commandment to remove evil from our midst.

Courts only put people to death in the Torah-ordained fashion, however, when there was a Temple standing, when the members of the court had the original semikhah that indicated a training that had a direct line to Sinai, and when there was a central court in the Lishkat haGazit, the Chamber of Hewn Stone right next to the Temple, where the Great Sanhedrin sat and judged issues. This suggests that for the judicial system to be fully operational involves not only a certain level of knowledge among the judges, but requirements of traditional knowledge, of a ritually complete system, and of a full court system.

As a side point, it is worth mentioning that the Hinukh seems to say that capital punishment is only administered in the Land of Israel, which would have meant that full Jewish justice bears some connection to the Land itself. However, as the Minhat Hinukh and others note, this is a difficult stance to maintain because the gemara explicitly refers to Jewish courts governing both in Israel and outside of it, including dinei nefashot, capital punishment. What is true, however, is that the semikhah that qualifies a judge can only be conferred in Israel, so there is some validity to the notion that the Land itself stands at the center of the Jewish judicial system.

Another law beit din administers, the sale of an eved `ivri, a Jew caught having stolen and disposed of an item of such value that he cannot repay it, depends on yet another system being in operation, that of the Yovel, the Jubilee year. One of the central conditions for Yovel is that the majority of the Jewish people (which, in halakhic terms, means the whole of the people) are living in Israel. The sale of a Jewish slave, for all that it is overseen by beit din, is part of a larger social system, where landed property only fully belongs to its original owners who are periodically restored. That system of ownership restoration depends on the Jewish people as an entity being in their land.

Many other laws need not have a Temple or a majority of Jews residing on the Land, but do depend (at least theoretically) on semikkhah. As the first Mishnah in Sanhedrin notes, there is a difference between issues of loans (where any three reasonably halakhically aware people may judge the case) and those of theft and/or complicated damages. In the latter situations, the judges must have semikhah to be qualified to judge the cases. Since that semikhah has not existed since the 3^rd century of the Common Era, this would seem to present a difficult issue for self-government.

The gemara already dealt with part of the problem, cases that are both common and involve hisaron kis, actual monetary loss, (such as one person damaging another's property-- car accidents). In such circumstances, judges may handle the issue even today (when we do not have the requisite semikhah), because shelihuteihu ka-`avdinan, judges who sit on batei din today are performing the agency of those judges who had semikhah. While there are many ways to explain the phrase, it would seem to mean that the final bearers of that original semikhah had the ability to empower future generations of judges to handle these common communal needs. Even so, however, it reminds us that without a direct line of training, our judges, however great they may be, are lacking in terms of the true qualifications of judging Jewish society.

Worse, there are still many cases where the courts would not be able to judge the issue. For example, the gemara instituted fines for slapping another person or embarrassing them in public, but those very worthwhile modes of policing misconduct have no judicial outlet in the absence of semikhah. The judicial system the Torah envisioned, in other words, is crippled in many important ways by the lack of semikhah, of the ability to assert that the current judge represents an unbroken chain of training extending back to Sinai and Moshe Rabbenu.

Practically, we can avoid the lawlessness that would ensue from such judicial incompetence in three ways (other than letting non-Jews take care of these matters, a distasteful solution that we only accept where the government insists): First, Rif notes that we can put the assailant in nidui until such time as that person had appeased the other. While the court will not assess damages, it will decide when reasonable satisfaction has been made.

Second, the halakhah allows the wronged person to take the law into his own hands in such cases. If the damaged person expropriates the property of the assailant (in other circumstances we would call this stealing), the beit din will only evaluate whether he has taken too much. (Interestingly, Rema rules that the court may not tell the damaged person ahead of time how much he has the right to take, but will only retrospectively determine whether he is required to return any of the recovered property). This, I hope obviously, is not particularly satisfactory, since one of the central reasons for a court system is to avoid the kind of lawlessness implied by allowing people to take the law into their own hands.

Finally, courts can punish people extrajudicially, for the good of society. A court could decide, for social and/or religious reasons, to punish any act it determines. Under this rubric, the court could choose to assess damages; the only difference would be that they would not be acting as a beit din fulfilling the Torah's laws, but exercising their general right to act for the sake of the particular society and social conditions that prevail in their time. Reviewing these issues will remind us, I hope, of the handcuffs that our continuing exile places on our ability to administer ourselves and our society in an efficient and Torah-centered way. Shabbat Shalom.