Halakhah zu Schemuel II 3:45

One nineteenth-century rabbinic authority does state explicitly that the king may pass judgment on the basis of umdana or circumstantial evidence alone.²⁶Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 208, states cryptically: “But that which is not mentioned in the Torah … the king and Sanhedrin may see in accordance with the place and in accordance with the time and similarly, a fortiori, they may remove the many destructive [persons], the murderers, without witnesses or the like. …” R. Zevi Hirsch Chajes, Torat Nevi'im, chap. 7,²⁷Published in Kol Sifrei Maharaẓ Ḥayes, I, 49. states that Rambam's source for his ruling that the king may execute a person who commits an act of homicide even in the absence of prior warning, even though biblical law requires prior warning, is a discussion found in Sanhedrin 49a. The discussion seeks to elucidate King Solomon's justificaton for the execution of Joab (I Kings 2:29-34). The Gemara states that Joab was culpable for the murder of Amasa despite the fact that there was no prior warning. R. Chajes argues that the same talmudic discussion serves to establish that the king may administer punishment on the basis of circumstantial evidence. R. Chajes endeavors to show that proof of Joab's culpability was entirely circumstantial. Amasa died because he was struck by Joab "on the fifth rib" (II Samuel 20:10). Similarly, Abner, was killed by Joab with a blow "on the fifth rib" (II Samuel 3:27). The blow "on the fifth rib" was fatal, declares R. Joḥanan, because that is "where the bile and the liver are attached." Joab's premeditation to kill, argues R. Chajes, could have been known only circumstantially, i.e., by the unlikelihood that the vulnerable spot near the fifth rib could have been struck other than by direct aim.

Mishneh le-Melekh readily concedes that his permissive view with regard to deriving benefit from gentile cadavers is not universally accepted. Although Rambam and Tur Shulḥan Arukh both record the prohibition attendant upon deriving benefit from a corpse, neither of these codifiers indicates in any way that the reference is limited to the corpse of a Jew.³²See Radbaz, Hilkhot Avel 14:21. Even more explicit is the ruling of Shulḥan Arukh, Yoreh De'ah 349:1, declaring that no benefit may be derived from the shrouds of "either a gentile or a Jew."³³As is well known, the author of the Shulḥan Arukh, R. Joseph Caro, was also the author of Kesef Mishneh, a classic commentary on Rambam’s Mishneh Torah. Curiously, this authority, in his Kesef Mishneh, Hilkhot Arakhin ve-Ḥaramin 5:17, seems to assume that no issur hana’ah is attendant upon the corpse of a non-Jew. Cf., however, Mishneh le-Melekh’s attempt at reinterpretation of the comments of Kesef Mishneh. It is clear that the prohibition is not limited to shrouds but that the identical restriction applies to the corpse itself.³⁴Mishneh le-Melekh also cites the interpretation of King David’s demand, “Deliver my wife, Michal, whom I betrothed to me for a hundred foreskins of the Philistines” (II Samuel 3:14), recorded in the Gemara, Sanhedrin 19b. According to the Gemara’s analysis, Saul regarded the marriage to be a nullity ab initio because he deemed the foreskins delivered to the bride as consideration to be worthless. David, on the other hand, regarded them as objects of at least minimal value since they could be fed to dogs or cats. Since issurei hana’ah cannot be used as consideration for the purpose of contracting a marriage, the implication is that there was no transgression associated with any benefit that might have been derived from the foreskins of the Philistines. Mishneh le-Melekh notes, however, that it is possible that the foreskins were severed from the Philistines before they were put to death and hence no prohibition against deriving benefit would have been attendant upon them. Cf., R. Chaim Sofer, Teshuvot Maḥaneh Ḥayyim, Yoreh De‘ah, II, no. 60, who maintains that no issur hana’ah is attendant upon the corpses of prisoners captured in battle. Cf. also, R. Azriel Hildesheimer, Teshuvot R. Ezri’el, Even ha-Ezer, no. 30, who avers that no issur hana’ah is attendant upon the foreskin of a cadaver, but fails to set forth any substantive demonstration of that thesis. Similarly, Shitah Mekubezet, Ketubot 60a, cites a statement attributed to Re'ah indicating that "there is no difference between a gentile and a Jew" in this regard. On the other hand, Ramban, Ketubot 60a, advances an opposing view in remarking, "I know of no prohibition with regard to a non-Jew since we derive [the prohibition] from Miriam." Mishneh le-Melekh, however, notes that in other places Ramban's comments, if not expressly contradictory, are at least equivocal as are the comments of Teshuvot ha-Rashba, 1, nos. 364 and 365.³⁵Elsewhere, in his commentary on Ketubot 60a, Rashba espouses the position of Tosafot. Cf., Bedek ha-Bayit, Yoreh De‘ah 349. Other authorities cited by Mishneh le-Melekh who espouse the view that it is not forbidden to derive benefit from the corpse of a non-Jew include Sefer Yere'im, no. 310, and Tosafot, Baba Kamma 10a.³⁶For discussions of this question by latter-day authorities see Teshuvot ha-Radbaz, III, no. 979; Teshuvot Maharam Shik, Yoreh De‘ah, no. 349; R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41; R. Meir Shapiro, Teshuvot Or ha-Me’ir, no. 74; as well as sources cited by Pithei Teshuvah, Yoreh De‘ah 349:1 and Sedei Ḥemed, Kelalim, Ma‘arekhet ha-Mem, no. 103.
Pitḥei Teshuvah also cites Teshuvot Even Shoham, no. 30, who maintains that although the issur hana’ah pertaining to a Jewish corpse is biblical in nature, the prohibition regarding a non-Jewish corpse is of rabbinic origin; cf., Sedei Ḥemed, loc. cit., s.v. ve-katav. See also R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41.

From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 72b and see Mishneh Torah, Murderer and the Preservation of Life 1:6-7) that even if the pursuer is small and the pursued is bigger than him in every regard, everyone is obligated to save [the pursued], and even [at the expense of] the life of the pursuer. And to what do these words apply - that we save with the life of the pursuer? When it is impossible for us to save [the pursued] with one of the limbs of [the pursuer]; but if it is possible to save him with one of the limbs and he saved him with his life - this is spilling of blood (murder). And so did our Rabbis, may their memory be blessed, say (Sanhedrin 49a) about the death of Avner when Yoav killed him: As it is written there (II Samuel 3:27), "and he died for shedding the blood of Asahel, his brother." And the tradition came about this that Yoav had a claim against Avner for the blood of Asahel, and judged him in a case of the Sanhedrin (High Court) - which means to say that he killed him for a claim for which it would have been fitting to [receive] death according to the Sanhedrin: He said to him, "Why did you kill Asahel?" Avner said [back] to him, "He was a pursuer." Yoav said to him, "You should have saved yourself with one of his limbs." Avner said to him, "I did not know how to aim at him [in that way]." Yoav said to him, "You aimed onto his fifth rib! And you did not know how to aim at him?" And about this is it stated, "he died for shedding the blood of Asahel, his brother."