Halakhah sobre II Samuel 12:5

The monarch is empowered to punish malefactors in a manner more severe than is provided by biblical law.¹⁰Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 208, states that this authority is derived from Leviticus 27:29. Ramban understands this verse as conferring upon the community the power of declaring a ḥerem and prescribes the death penalty for its violation. Ḥatam Sofer suggests that the power is vested in the monarch by virtue of the acceptance of his authority and the concomitant duty of obedience owed him by the populace. Cf., Me’iri cited in Shitah Mekubeẓet, Baba Kamma 84b, and R. Saul Israeli, Ha-Torah ve-ha-Medinah, II (Iyar 5710), 77, 85-88. Thus, he may, for example, decree the execution of an individual who has taken the life of another even though the culprit's act does not, for various reasons, constitute capital homicide under biblical law.¹¹It should be noted that Rambam, Hilkhot Melakhim 3:8 and 3:10, in describing the royal prerogatives, speaks only of the crimes of lèse majesté and homicide. In Hilkhot Roẓeaḥ 2:4, Rambam speaks of “murderers and the like.” Avnei Nezer, Yoreh De‘ah, II, no. 312 and R. Saul Israeli, Ha-Torah ve-ha-Medinah, II, 81, opine that the king’s jurisdiction is limited to these crimes. R. Benjamin Rabinowitz-Teumim, Ha-Torah ve-ha-Medinah, IV (Elul 5712), 74, understands Rambam in this manner as well. See also Or Sameaḥ, Hilkhot Melakhim 3:10. This interpretation of Rambam is difficult to sustain in light of Rambam’s own statement, Hilkhot Sanhedrin 18:6, to the effect that Achan—who was not guilty of homicide—was executed by virtue of application of the “king’s justice.” However, Ritva, cited in Shitah Mekubeẓet, Baba Meẓi‘a, 83b, explains that R. Elazar ben Shimon’s action in turning over thieves to government authorities, although sharply censured by R. Joshua ben Karchah, was deemed appropriate in R. Eleazar’s opinion because those individuals were lawfully liable to punishment by virtue of exercise of the royal prerogative. Ritva apparently maintains that the king’s authority extends to punishment of theft as well. Ran, Sanhedrin 46a, offers a similar explanation and is obviously in agreement with Ritva. Rashba, in a responsum published by D. Kaufmann, The Jewish Quarterly Review, o.s. VIII (1896), 236, explains R. Eleazar ben Shimon’s action in the same manner and further states that R. Joshua ben Karchah does not forbid such execution but states only that as an act of piety one should refrain from delivering the wrong-doers into the hands of government officials. It is presumably this responsum which is alluded to by Bet Yosef, Ḥoshen Mishpat 388. Bet Yosef’s citation appears only in early editions of Tur Shulḥan Arukh and was deleted by the censor in later editions; see Shmuel Shilo, Dina de-Malkhuta Dina, p. 67, note 28. Or Sameaḥ, Hilkhot Melakhim 3:10, also understands Baba Meẓi‘a 83b in this manner. R. Benjamin Rabinowitz-Teumim, Ha-Torah ve-ha-Medinah, IV, 80, adds that R. Eleazar ben Shimon acted in an official capacity and even according to his view, as opposed to that of R. Joshua ben Karchah, only a person specifically delegated by the non-Jewish king to perform such functions may deliver a criminal into the hands of civil authorities. See also Malbim’s commentary on II Samuel 12:5 in which that commentator assumes as a matter of course that the king is empowered to impose the death penalty for theft. Moreover, the king, in administering justice, is not bound by the strict laws of evidence.¹²The Bet Din may also impose extraordinary punishment and ignore usual judicial procedure, but only as an emergency measure; see Rambam, Hilkhot Sanhedrin 18:6 and 24:4 as well as Hilkhot Roẓeaḥ 2:4; cf., Rambam, Hilkhot Mamrim 2:4. As formulated by Rambam, Hilkhot Melakhim 3:10.