First off, it does not matter what the Rambam says, what the Ramban says, what Mahari BeiRav says, what the Maharalbach says, or what the Radvaz says. Or more specifically, it does not matter that it was they who said it.
What determines halacha is the gemara, ending with Rav Ashi, who is sof hora`a. Now, various Savoraim, Geonim, Rishonim, and Acharonim may say whatever they like, but in the end, a posek must look to the gemara and determine whether the reading by post-Talmudic authorities is correct or incorrect and, after much deliberation, choose the one who is correct. As we say in parashat Shofetim, in Devarim 16:19, in terms of judgment, "do not give special consideration [to anyone]." Rather, we must weigh each opinion and see if it is compelling in light of the evidence.
To this end, of course, we must read the Rishonic and Acharonic literature on the subject to make a final conclusion.
If so, the claim that the Rambam was unsure of his opinion (though I suggest an alternate reading below) while the Ramban was sure, such that we have a case of bari veShema, such that bar adif and we should prefer the Ramban, seems incorrect. While weighing such claims in this way in valid in a monetary court case, I am surprised that this would be the case in terms of deciding halacha. It should not matter whether the Rambam was sure or not. What should matter is whether we find the Rambam or Ramban more convincing.
Furthermore, there are specific interpretations of this Rambam advanced by Acharonim and laid out in the article. I believe that there are mis-interpretations of the Rambam, and a correct reading will lead to a different result.
Now please note that I have not learned through all the relevant sugyot and those which I have a have not read through recently. I have not read through Kuntros haSefekot. Thus, I am in no position to give any final decision on the matter. Please treat this blogpost accordingly.
However, I will just focus on the Rambam here, and what seems to be at first glance the most obvious peshat.
The Matter Requires Final Decision
That והדבר צריך הכרע means roughly tzarich iyun is the standard explanation of the Rambam, and works given that he introduces the topic with נראין לי הדברים and then poses a question on it, to which he gives a response.
Though not necessary in the end, for reasons I give above, perhaps we might grant a different interpretation to this phrase. Let us look at the Rambam inside. In hilchot Sanhedrin, 4:12:
יב נראין לי הדברים, שאם הסכימו כל החכמים שבארץ ישראל למנות דיינין ולסמוך אותן--הרי אלו סמוכין, ויש להן לדון דיני קנסות, ויש להן לסמוך לאחרים. אם כן, למה היו החכמים מצטערין על הסמיכה, כדי שלא ייבטלו דיני קנסות מישראל: לפי שישראל מפוזרין, ואי אפשר שיסכימו כולן; ואם היה שם סמוך מפי סמוך, אינו צריך דעת כולן, אלא דן דיני קנסות לכול, שהרי נסמך מפי בית דין. והדבר צריך הכרע.
Thus the Rambam concludes that והדבר צריך הכרע, the matter requires a final decision. Thus, he is unsure of the law. Some dispute whether he means he is unsure of the law in the beginning (about all the Chachamim of the land of Israel) or the law at the end - that is, upon what his uncertainty rests.
If the Rambam had meant this, he would have said tzrich iyun. He does not. He says tzarich hechreia. This is not a statement of uncertainty. Rather, it is a technical term.
Let me explain. By the laws of appointing kings, we typically need the special annointing oil. However, by a king from the house of David we do not need it. Except in certain cases, when the matter of succession was in question. If so, we annoint to remove the confusion.
Similarly here, we have two possibilities for conveying real semicha. One is to have all the Sages in the land of Israel convey it (though this I think is also possibly mistranslated). The other way is to receive it through simple succession from someone who already has real semicha. The Rambam states that the general problem is that the Chachamim cannot get it together to establish it, while in normal succession from existing real semicha, אינו צריך דעת כולן .אלא דן דיני קנסות לכול, שהרי נסמך מפי בית דין However, this in not the situation here, but we need the agreement of all the Chachamim, because והדבר צריך הכרע, since we do not have existing legitimate semicha, the matter -- conveying semicha yesh mei'ayin - needs this hechreia to establish it firmly.
Thus, perhaps, the Rambam has no doubt at all in his position, but rather is confidently explaining the difference between two cases.
Need The Person Receive Semicha From Them All?
I think this is also quite possibly might be translated differently. Again, the Rambam:
יב נראין לי הדברים, שאם הסכימו כל החכמים שבארץ ישראל למנות דיינין ולסמוך אותן--הרי אלו סמוכין, ויש להן לדון דיני קנסות, ויש להן לסמוך לאחרים. אם כן, למה היו החכמים מצטערין על הסמיכה, כדי שלא ייבטלו דיני קנסות מישראל: לפי שישראל מפוזרין, ואי אפשר שיסכימו כולן; ואם היה שם סמוך מפי סמוך, אינו צריך דעת כולן, אלא דן דיני קנסות לכול, שהרי נסמך מפי בית דין. והדבר צריך הכרע
To translate the beginning (from this website):
It appears to me [Maimonides] that if all the sages of Eretz Yisroel consent to appoint dayanim and grant them semichah, they have the law of musmachim and they can judge penalty cases and are authorized to grant semichah to others [thus restoring Biblical ordination].
What does this mean? Nowhere does it say they all agree to give a specific person semicha. Rather, it is that they all agree to set up a Jewish court system in Eretz Yisrael that the Jews must go to. And within that court system, they must appoint judges and grant them semicha. This is regular yadin yadin semicha.
Now, semicha granted in this way outside of Eretz Yisrael is fake semicha. But granted inside Eretz Yisrael by the rabbis who are setting up a court system in Israel is real semicha, even on the level of that semicha which derives all the way back to Moshe Rabbeinu.
If my reading is correct, we can already set up a Sanhedrin, without the stretch done in sending letters, and counting the majority of respondents. I do not beleive that any of the true Chachamim in Eretz Yisrael do not consider the BeDaTz to be a real court system. And the rabbis acting as judges in these halachic courts in Eretz Yisrael have been appointed to be judges and have received yadin yadin semicha. If so, if we would just gather 71 of these rabbis together, we could have a Sanhedrin.
Once again, this is my first impression of the matter. I may revise this later.
Update: Stealth edits here and there to grant a more respectful and even tone. Also, with the current situation in Eretz Yisrael, perhaps for sociological and political reasons various communities do not really accept the authority of betei dinim of other groups. Perhaps what is necessary is establishing a court system over everyone that every gadol agrees to. So perhaps we do not have this system in place. Or perhaps we do. tzarich iyun. or hechreia ;)
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