Halakhah zu Schir haSchirim 8:76

And now that I have explained all of this to you, you ought to meditate on the idea that if in this world you will find that things are so according to nature and their inherent virtues, how much the more so will it be the case at the end of time when nature will be made anew and be changed for the better to meet the needs of everything that has been created based on its status! And it goes without saying for the status of the people of Israel and the righteous among them, that the Holy One Blessed be He will make anew the kinds of pleasures and meals, just as He will make them a new creation, in whom the flow of intelligence and the capacity for prophecy has been strengthened. And if the heart of man who thinks he’s so smart objects to this idea, and says the words of the sages z”l are based on the pillars of science and the splendor of the intellect, and that all of them are in accordance with reason, and that they did not speak or say a word except by means of allegory, and the meal of the Leviathan is not physical but only an allegory for intellectual capacity and “the bundle of eternal life,” we will say to him in reply: we are compelled by necessity to believe that the words about a physical meal words refer literally to a physical meal, and not just an intellectual experience. For see what they said in the Perek Ha-Sefinah (“The Ship”):²²B. Baba Batra 75a. R. Yohanan said, The Holy One, blessed be He, will in time to come make a banquet for the righteous from the flesh of Leviathan; for it is said: “Companions will make a banquet of it [yikhru ‘alav habarim].”²³Job 40:30: literally, “Shall traders traffic in him?” (JSB). Kerah must mean a banquet; for it is said: “And he prepared [va-yikhreh] for them a great banquet [kerah] and they ate and drank.”²⁴2 Kg 6:23. “Companions” [habarim] must mean scholars for it is said: “the companions hearken for your voice; cause me to hear it.”²⁵Song of Songs 8:13. The rest [of Leviathan] will be distributed and sold out in the markets of Jerusalem; for it is said: “They will part him among the Kena’anim.”²⁶Job 40:30. R. Bahya omits the Talmud’s explanation of kena’anim: “Kena’anim must mean merchants, for it is said: “a trader [kena’an] with balances of deceit in his hand; he loves to oppress.’ (Hos 12:8) And if you wish, you may infer it from the following: ‘Whose merchants are princes, whose traffickers [kena’anim] are the honorable of the earth.'(Is 23:8)” b. Baba Batra 75a.

The other homiletical passage deals with the imminent death of Moses.¹⁴Deuteronomy Rabbah 9: 9. When God told Moses to call his successor Joshua (Deut. 31:14), Moses said to God, "Master of the Universe, let Joshua take over my office and I will continue to live." Whereupon God replied, "Treat him as he treats you." Immediately Moses arose early and went to Joshua's house, and Joshua became frightened. Moses said to Joshua: "My teacher came to me," and they set out to go, Moses walking on the left of Joshua as a disciple walks on the left of his teacher. When they entered the Tent of Meeting (Ohel Moed) the pillar of cloud came down and separated them. When the pillar of cloud departed, Moses approached Joshua and asked him, "What was revealed to you?" Joshua replied, "When the word was revealed to you did I know what God spoke with you?" At that moment Moses exclaimed: "Better to die a hundred times than to experience envy, even once." Solomon has expressed this clearly: "For love is strong as death, jealousy is evil as the grave" (Song of Songs 8:6). This refers to the love wherewith Moses loved Joshua, and the jealousy of Moses toward Joshua. A life of envy and jealousy is not worth living for a man of the ethical stature of our Teacher, Moses.

What brought this commentator to this difficulty was because many treated the verse “In the beginning God created (bara)” (ibid. 1:1) as if it was written “At the beginning of God’s creating (bero) the heavens and the earth, the earth was empty (tohu) and void (vohu)” – it did not exist, meaning there was no earth. Similarly, “darkness” is the absence of light, meaning there was none.¹⁰ According to this interpretation nothing existed prior to the creation of light. So the first created condition was light, followed by darkness at night. Thus a 24-hour day consists of light followed by darkness – day followed by night. But this interpretation is completely incorrect. Because why did he need to mention the heavens since it did not state that they were nonexistent like the earth? Also, from a grammatical point of view, why is there an added vav (“and”) to the word “veha’arez”? This is not the same as the extra vav found in verbs, as in “On the third day Abraham lifted (vayisa) his eyes” (ibid. 22:4), “he abandoned (vaya’azov) his servants” (Exodus 9:21). They are like the weak fe in Arabic, for Arabic forms are similar to those of the Holy Tongue (Hebrew). However, no vav is added to nouns. Also, according to this interpretation the wind and the water were not created,¹¹ No mention is made of the creation of air and water, even though they are referred to in verse 2. yet it is written in the book of Psalms with regard to both of these “for He commanded and they came to be” (148:5).¹² The verses in Psalms are: “Praise Him, heavens of heavens (the sphere of fire), and waters that are above the heavens. They should praise the name of God, for he commanded and they were created” (148:4–5). Even darkness was created, as it is written “who forms light and creates darkness” (Isaiah 45:7).

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.

Song of Songs 8:9 declares "If she be a wall we shall build upon her a turret of silver; but if she be a door we shall enclose her with panels of cedar." According to Rashi, God addresses Israel and describes two alternative modes of conduct open to Israel in the Diaspora. The community of Israel may resolve to "be a wall," and to comport itself as if fortified with "walls of brass" (Jeremiah 1:18) which cannot be penetrated, i.e., Israel may gird herself as a defensive wall, withstand incursions and refuse to allow the nations to infiltrate through intermarriage. If Israel acts in this manner "a turret of silver" will be erected, i.e., Israel will survive to witness the rebuilding of the Holy City and the Temple. However, if the community of Israel "be a door which revolves on its hinges," the result will be far different. If Israel wavers and succumbs to every alien knock, opening her door to foreign nations through intermarriage, rather than being fortified with noncorroding silver, her doors will be lined with wooden panels which are exposed to rot and decay. The corrosive effect of intermarriage is such that the community decays and withers away.

Nevertheless, one point requires clarification. Punishment of malfeasors may be a royal prerogative. That, however, does not establish an obligation to assist the king in exercising that prerogative. Surely this is true of the other royal prerogatives enunciated in I Samuel 8 and is equally true if the authority of the sovereign is derived from Song of Songs 8:12. Scripture merely grants licence to the monarch to expropriate property, to exact personal services or to endanger the lives of the populace and also to punish those who disobey his edicts. However, Scripture does not require him to impose such punishment or demand that others assist him in doing so. By the same token, although the king may administer punishment on an ad hoc basis, there is no apparent statutory provision indicating that a person may not conceal an individual sought by the king. Rashi, then, must be understood as positing an obligation not to do so based solely upon the dictates of reason. Reason demands that a murderer be brought to justice and punished. Reason similarly demands that punishment be carried out only in accordance with legal procedures and only by duly constituted authorities because the alternative would similarly lead to a breakdown of the social order. Just as reason forbids a person to take the law into his own hands, it also mandates that there be no interference with the administration of justice by properly constituted authorities. Hence Rashi concludes that it is forbidden to shield a murderer and that Rabbi Tarfon could not allow himself to be in the position of doing so. A similar position attributed to Rashba is cited by Rabbi Joseph Karo in his commentary on Tur Shulḥan Arukh, Bet Yosef, Hoshen Mishpat 388. Bet Yosef quotes that authority as declaring "for if everything is left to stand on the law of the Torah, as when the Sanhedrin imposes judgment, the world would be desolate." Rashba's comment is expressed in the context of a justification of the imposition of penal sanctions by civil authorities upon Jewish nationals and similarly reflects the position that such authority is derived on the basis of reason alone.⁴²A similar theory is propounded by the 19th-century rabbinic scholar, R. Zevi Hirsch Chajes (Maharaẓ Ḥayes), in Torat Nevi’im, chap. 7, published in Kol Sifrei Maharaẓ Ḥayes, I, 48. Maharaẓ Ḥayes observes that disobedience of law leads to anarchy, but instead of asserting that there exists a natural law basis for enforcement of a criminal code, he argues that the sovereign is empowered to punish transgressors by virtue of the “law of the pursuer.” For a discussion of the difficulties inherent in Maharaẓ Ḥayes’ position see this writer’s discussion in Or ha-Mizraḥ, Nisan-Tammuz 5747, pp. 268-269.

And they, may their memory be blessed, also said (Shevuot 35a) that any letter that serves as a prefix before the name is permitted to erase, for example the lamed (to) from, "to God." But what serves as a suffix after the name - such as the khaf (your) of "your God" or the mem (your - plural) of "your God," and similar to them - are not erased, since the name [of God] consecrates them. And one who writes [only] El from the word Elohim [that he planned to write], or Yah from yod, hay - vav, hay cannot have it erased because these are names [of God] on their own. But one who writes shad from Shaddai or tsav from Tsevaot - behold, it can be erased. And the rest of the appellations that are used to praise God - for example, Merciful, Graceful, Great, Powerful, Awesome and similar to them - behold, they are like the rest of the holy writings (Biblical texts), which are permitted to erase for the sake of any thing. And [also] that which they, may their memory be blessed, said (Shabbat 115a) that that which all holy writings (Biblical texts) and their commentaries are included in this prohibition, is from the words of the scribes (rabbinic) - that it is forbidden to destroy them or to burn them. And all of this that we have said is when it is written by a [proper] Israelite, but we burn - and it is a commandment to burn - everything that is written by an Israelite heretic, so as not to leave a name for (remembrance of) the heretics and all of their deeds, whereas we put away that which was written by a gentile (Mishneh Torah, Laws of Foundations of the Torah 6:8). And [also] that which they said (Shevuot 35b) that all of the names with Avraham in the matter of the angels that came to him are holy, and those stated with Lot are profane, except for "Behold now Your servant has found favor in Your eyes" (Genesis 19:19); all the names stated with the mountain of Binyamin (Judges 19-21) are holy, but from all those stated with Micah (Judges 17-18), some are profane and some are holy - el is profane, Yah is holy, except for one El which is holy, and that is "all the days that the house of God was in Shiloh" (Judges 18:31); all that are stated with Navot (I Kings 21) are holy; every Shomo that is stated in the Song of Songs is holy - and it is like the rest of the appellations - except for "a thousand to you, Shlomo" (Song of Songs 8:12); and all kings stated in Daniel are profane except for one, "You are the King, the King of the kings" (Daniel 2:37) - and behold it is like the other appellations. [These] and the rest of its details are found in Tractate Shevuot.