Halakhah zu Schir haSchirim 8:12

Nevertheless, Hatam Sofer finds alternative grounds for asserting that non-Jewish monarchs may legitimately impose extra-statutory punishment. That authority, as well as authority for the principle of dina de-malkhuta dina, Hatam Sofer regards as being based, not upon I Samuel 8, but upon Song of Songs 8:12. The verse "My vineyard, which is mine, is before me; you, O Solomon shall have the thousand, and those that keep the fruit thereof two hundred" is cited by the Gemara, Shevu'ot 35b, in support of a statement to the effect that a king who causes the death of one-sixth of the world's population is not subject to punishment. The authors of Tosafot, ad locum, understand that verse as granting Solomon dispensation to cause the death of two hundred individuals to conquer and preserve the thousand. "Those that keep the fruit" may sacrifice two hundred so that Solomon shall "have the thousand." The king is granted authority to go to war for reasons of state even though casualties necessarily result, provided that casualties are limited to a ratio no greater than two hundred in twelve hundred, leaving a remainder of one thousand (a casualty ratio no greater than one-sixth). That dispensation, argues Hatam Sofer, is not limited to casualties incurred as a result of warfare but extends as well to infliction of loss of life among the king's own subjects in the course of actions designed to benefit the nation or to enhance the grandeur and honor of the sovereign.²⁹See also Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 44, which reiterates the same principle. The king, as "keeper of the fruit," may compromise the lives and welfare of some of his subjects to preserve the integrity of his "vineyard." Tosafot's statement indicating that the king is empowered to sacrifice lives for national purposes is understood by Hatam Sofer as not limiting such authority to casualties incurred in the course of war but as empowering the king to execute citizens for any legitimate purpose involving "preservation of the vineyard," with warfare simply serving as a paradigm. Hatam Sofer draws a further inference in stating that the verse "and those that keep the fruit thereof two hundred" serves to establish not only the right of the monarch to take the lives of subjects in order to safeguard the State, but also authorizes him to take lesser measures, including expropriation of property, to provide for the needs of society. Accordingly, concludes Hatam Sofer, dina de-malkhuta dina, as a principle of jurisprudence expressive of the State's authority to disturb the rights of its citizens to lawful enjoyment of property, is predicated upon Song of Songs 8:12.

In presenting the novel thesis that Song of Songs 8:12 serves as validation of the principle dina de-malkhuta dina, Hatam Sofer underscores the point that gentile monarchs are also vested with the power to impose penal sanctions upon miscreants. Dina de-malkhuta dina, as a normative principle of Jewish law, applies to the laws of non-Jewish states. If it is derived from Song of Songs 8:12 it follows that the verse must be regarded as delineating the authority of all monarchs, gentile as well as Jew. Accordingly, penal authority derived from that verse must also be vested in non-Jewish monarchs. There emerges, however, a contradiction between the position recorded in Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 208, and his statement in Teshuvot Hatam Sofer, Likkutim, no. 14, denying the authority of a gentile king to impose capital punishment upon his Jewish subjects. Resolution of that problem requires a careful reading of the language employed in the latter responsum. Hatam Sofer declares such execution to be "she-lo me-din Torah," literally, that is "not from the law of the Torah"; he does not employ language categorizing capital punishment as imposed by civil authorities to be in violation of, or contradictory to, the law of the Torah. It would seem that in his careful choice of nomenclature, Hatam Sofer seeks to draw attention to the fundamental distinction between capital punishment as imposed by the Bet Din and capital punishment imposed by the king: the latter is viewed as entirely discretionary whereas the former is mandatory. In his enumeration of the 613 commandments recorded in Scripture, Rambam, Sefer ha-Mizvot, mizvot aseh, nos. 226–229, declares that implementation of capital punishment by the Bet Din, when required by law, constitutes fulfillment of a mandatory biblical commandment. In fact, the Bet Din was required to impose four different forms of capital punishment in punishment of various transgressions of biblical law and Rambam posits a separate commandment mandating administration of each of those four modes of execution. When the requirements of law pertaining to evidence and judicial procedure have been satisfied, the Bet Din has no choice but to pronounce its verdict and to impose the appropriate punishment; the Bet Din does not enjoy discretion to suspend the sentence or to impose a lesser punishment. Not so with regard to "the King's justice." The king's power is ad hoc in nature and is intended to be exercised only in accordance with the needs of the hour. Hence the king may ignore the infraction, grant a pardon, commute or suspend a sentence. Thus, imposition of capital punishment by the king is categorized by Hatam Sofer as "not from the law of the Torah" in the sense that, since it is discretionary in nature, it is not mandated by Torah law. Since gentile courts may impose the death penalty upon Jews or incarcerate criminals only by virtue of their power to impose "the King's justice" and since, according to Jewish law, imposition of such sanctions by the sovereign cannot be mandatory, Hatam Sofer finds no impropriety in any attempt to avoid imposition of such a penalty.

According to this analysis, Rambam regards Rabbi Joshua ben Karḥah as asserting a normative halakhic position rather than as asserting a standard of pious conduct as has earlier been shown is evidently the position of Ritva and Rashba. There then emerges somewhat of a problem with regard to the nature of the controversy between Rabbi Joshua ben Karḥah and Rabbi Eleazar ben Shimon. If it is accepted that Rabbi Eleazar ben Shimon bases his position upon Song of Songs 8:12, as is the view of Hatam Sofer, it is extremely unlikely that Rabbi Joshua ben Karḥah would reject the halakhic principle derived from that verse without making it clear that the exegetical basis of the principle is in dispute. It is similarly unlikely that Rabbi Eleazar ben Shimon regards the authority of a monarch derived from that verse to be limited to infliction of casualties in the course of warfare, as may well be assumed on the basis of the comments of Tosafot, since that, too, should have been made clear in the words of the talmudic protagonists themselves.³¹If, as is the position of both Ritva and Rashba, both R. Joshua ben Karḥah and R. Eleazar ben Shimon agree that the king enjoys the power to execute evildoers, there is no reason for them to present any further explanation of their conflicting views regarding the standard to be applied to the pious. That is the case even if such authority is derived from Song of Songs rather than I Samuel 8, as is the view of Ḥatam Sofer. Presumably, the exegetical reference was omitted since it was well known and not at all a matter of controversy.