On which precise halachic source did Rambam claim that the pilegesh is forbidden to all Jewish men except the kings of Israel?

Question

I’m an Italian noahide.

This question covers my exclusively intellectual curiosity, being an halachic case that does not concern the Gentiles but only the Jews.

We read in Mishneh Torah -Melachim uMilchamot 4:4 (English translation by Rabbi E. Touger):

“Similarly, he (the king of Israel) may take wives and concubines from the entire territory of Eretz Yisrael. The term 'wives' implies women who were married with A ketubah and kiddushin; concubines, women who were not given A ketubah and kiddushin. With the act of yichud alone, the king acquires her and relations with her are permitted him. A commoner is forbidden to have a concubine. The only similar relationship is the union with a Hebrew maid servant after she has been designated by her master.”

However, some Torah scholars have pointed out that:

• The Nevi'îm report cases of Jewish men who, despite not being kings of Israel, had pilagshim;

• Neither the Tanakh nor the Talmud report the prohibition of the pilegesh to a commoner.

Among these scholars there are very authoritative rabbis such as:

• Ya'avetz (Rabbi Yaakov Emden;we can read the English translation of his responsum at http://www.aishdas.org/avodah/faxes/RYE_pilegesh.pdf );

• Ramban, as reported by his student Rahsba in Teshuvot haRashba Meyuchas LehaRamban No. 284 ,whose Hebrew text is here https://www.sefaria.org/Teshuvot_haRashba_Meyuchas_LehaRamban.284?lang=bi ( on the basis of this step, among other things, Nachmanides would have maintained that Rambam did not at all reserve the pilegesh for the only king of Israel, a position that creates considerable exegetical problems in relation to the text of Melachim uMilchamot 4: 4 in our possession;

• The Vilna Gaon, commenting the beginning of the Laws of Kiddushin in the Shulchan Aruch, Even HaEzer 26:1:6-7; also this master, like Nachmanides, says that Rambam allows the pilegesh to ordinary Jewish men.

It is clear that an extraordinary jurist like Rambam must have identified a precise halachic source to support his position: but what source do we talk about, if not even magnificent rabbis such as Ya'avetz, Ramban and the Vilna Gaon identified it?

The problem of why Nachmanides and the Vilna Gaon say that Rambam allows pilegesh to all men remains moreover open. The orthodox rabbi Dovid E. Eidensohn supports a particular exegetical thesis about this question, accessible at the link http://torahhalacha.blogspot.com/2018/07/ramban-and-rambam-permit-pilegesh.html

but I don't know how much it is shared in the world Jewish.

Answer 1

I personally develop an answer to my question, thanks to the advice that I requested and kindly obtained on the subject from Rav Dr. Ratzon Arusi, authoritative scholar of Rambam's thought, and pupil of the famous and renowned master Rav Yosef Qafih (Kapach).

Rav Dr Arusi told me that the common printed version of Mishneh Torah-Hilchot Melachim 4: 4, where we read that the pilagshim have neither ketubah nor kiddushin, is not the correct version.

In fact in the Yemeni manuscripts of the Mishneh Torah, unanimously considered the most reliable sources for the reconstruction of the original text of the work, Rambam states that the pilagshim are "without ketubah and kiddushin",that is "without ketubah and with kiddushin", in line with the position expressed by R. Meir in Yerushalmi (Ketubot 5: 2), and with the version of Gemara-Sanhedrin 21a possessed by other important masters such as Rashi. Rav Dr. Arusi told me that Rambam considers it lawful for the king alone to have pilagshim since, while the obligation of kiddushin is "de’oraita", deriving from the mitzva of Deuteronomy 23:18, and is therefore a precept that even the king must observe (and in fact the only act of yichud beetween the king and the woman has the juridical effect equivalent to kiddushin), the obligation of the ketubah is "derabbanan", having been instituted by the Sages of Israel to prevent the husband from divorcing his wife easily, as the fundamental requirement of the ketubah is the sum that the husband has to pay to his wife in case of divorce.But since the king of Israel is a rich man and is considered to be very generous, there is no need to protect his wife with the obligation of the ketubah; Halakhah therefore exempts the king from this obligation, also because the king's pilagshim, as Rambam always states in Hilchot Melachim 4: 4, are employed by the king himself as his workers, and therefore enjoy a salary. I then asked Rav Dr. Arusi why the Tanakh speaks of men who, although not kings of Israel, had pilagshim, and Rav. Dr. Arusi replied that they took pilagshim when the derabbanam obligation to stipulate ketubah with a woman was not yet in force, which made the pilagshut relationship lawful in those days also for non-kings.