Halakhah su Deuteronomio 21:23

There is some controversy with regard to whether the prohibition against violating a corpse is limited to bodies of deceased Jews or whether it extends to non-Jewish corpses as well. R. Meir Shapiro, Teshuvot Or ha-Me'ir, no. 74, demonstrates that it may be inferred that Rashi and Ramban, in their respective commentaries on Deuteronomy 21:23, would differ with regard to their resolution of that question. The scriptural verse that is the subject of their comments prescribes that the corpse of even a convicted criminal may not be allowed to hang from the gallows in ignominy but must be interred without delay. Both commentators cite an aggadic explanation as the rationale underlying the regulation mandating respect for the dead. The source is a talmudic parable concerning a pair of identical twins. One of the twins grows to adulthood and is crowned king of the realm; the second becomes a highwayman, is apprehended and executed as punishment for his crimes. Suppose, then, we are told, the body of the executed twin were placed on public display. Would not passersby scrutinize the body and, perceiving what they believe to be the familiar countenance of their ruler, assume that it is none other than the king himself who has been punished so ignominiously? Man is created in the image of God with the result that, however that anthropomorphic term is to be understood, the human body reflects an aura of divinity. Just as the king is dishonored in the indignity meted out to his twin, the Deity is dishonored in the dishonor of the divine image associated with the human body.

It is, however, not entirely clear that the stipulations posited by the Mishnah in Sanhedrin support the conclusions of She'ilat Ya'avez and Kol Mevaser. In clarifying this provision of Jewish law, Rambam, Hilkhot Rozeaḥ 15:9, states that burial of the artifacts used to put the condemned transgressor to death is mandated "so that he will not be remembered for evil and people not say, 'This is the stake upon which so and so was hung.'" According to Rambam, burial of such articles is designed to prevent ignominy to the deceased. A similar explanation is advanced by the Gemara, Sanhedrin 54b, with regard to the rationale underlying the requirement for execution of an animal utilized as a participant in an act of bestiality. As noted by Leḥem Mishneh, ad locum, Rambam, in advancing this rationale, is not citing a statement of the Gemara or of any earlier rabbinic source explicitly advanced in elucidation of this particular provision of Jewish law. Moreover, it is not Rambam's general practice to incorporate the rationale reflected in specific mizvot in his codification of the pertinent provisions of Jewish law. The fact that Rambam does so in this case suggests that there are halakhic ramifications that are attendant upon the rationale and hence the rationale forms an integral part of the ruling. Rambam, as well as Yad Ramah, who also posits the identical rationale for these halakhic provisions, may well have been of the opinion that these artifacts are not at all asur be-hana'ah, i.e., that these artifacts are not to be numbered among those objects from which it is forbidden to derive benefit. Indeed, She'ilat Ya'avez himself cites a latter-day authority who apparently maintained that there is no issur hana'ah associated with such artifacts. Although, to be sure, objects from which benefit may not be derived require burial in order to eliminate the possibility of violation of the issur hana'ah, conversely, the fact that an object requires burial does not ipso facto indicate that it is asur be-hana'ah. A corpse requires burial by virtue of the explicit biblical command "you shall surely bury him the same day" (Deuteronomy 21:23). Yet the prohibition against deriving benefit from a cadaver is deduced by the Gemara, Avodah Zarah 29b, from an entirely different source. Rambam may well have incorporated the rationale underlying the requirement for burial of the implements of capital punishment in order to demonstrate that the requirement for burial is not the product of an issur hana'ah.¹¹Moreover, it may be cogently argued that, according to Rambam, the requirement for burial of the implement of execution “so that he will not be remembered for evil” is limited to artifacts used in the execution of persons guilty of capital transgressions. Such individuals are put to death for having performed ignominious deeds and anything that focuses attention upon the nature of their death does no honor to their memory. The death of a victim of wanton persecution or ordinary homicide is in no way ignominious. Quite to the contrary, Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 333, describes such a person as a “kadosh—a holy one.” Certainly, one finds no explicit reference in rabbinic literature of a need to suppress publicization of the nature of such a death.
It may be noted that “the stake upon which he was hanged” refers to the hanging of the body of the executed transgressor subsequent to administration of one of the forms of capital punishment. The prohibition against deriving benefit from the “stake” clearly applies only in the context of capital punishment administered by the Bet Din.

An opposing view is attributed to Rabbi Joseph Soloveitchik in an article written by Rabbi Immanuel Jakobovits, Torah she-be-'al Peh, VI (5724), 64. Rabbi Soloveitchik is quoted as stating that insofar as the prohibition concerning nivul ha-met is concerned, no distinction may be made between Jew and gentile. The prohibition is derived from the commandment not to allow the corpse of an executed transgressor to remain hanging overnight "for he that is hanged is a reproach unto God" (Deuteronomy 21:23). The prohibition, it is argued, applies equally to the bodies of both Jews and non-Jews because all men are created in the "image of God."