Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 17

Sugya Map

• Issue: The precise methodology for administering malkot (lashes) in the Mishneh Torah, focusing on estimation, divisible numbers, temporal considerations, multiple transgressions, and physical/psychological incapacitation.
• Nafka Mina:
  • Accurate application of the law, preventing undue suffering or insufficient punishment.
  • Understanding the rationale behind seemingly arbitrary rules (e.g., 39 lashes, divisibility by three).
  • Determining when punishment is absolved due to the physical or mental state of the condemned.
  • Differentiating the treatment of High Priests versus heads of academies.
• Primary Sources:
  • Deuteronomy 25:2-3
  • Mishneh Torah, Hilkhot Sanhedrin 17:1-6
  • Mishneh Torah, Hilkhot Mamrim 1:2 (implied for High Priest)
  • Talmud Bavli, Makkot 22b-23a
  • Talmud Yerushalmi, Makkot 3:1

Text Snapshot

Mishneh Torah, Hilkhot Sanhedrin 17:1:

"How are lashes administered to a person liable to receive them? According to his strength, as indicated by Deuteronomy 25:2: 'According to his wickedness by number.' The number 40 stated in the following verse is mentioned to teach that more than 40 lashes are never administered even if the person is as healthy and as strong as Samson. When, by contrast, a person is weak, the amount of lashes is reduced. For if a weak person is given many lashes, he will certainly die. Therefore our Sages said: that even a very healthy person is given only 39 lashes. For if accidentally an extra blow is administered, he will still not have been given more than the 40 which he was required to receive."

• Dikduk/Leshon Nuance: The phrase "לפי כוחו" (according to his strength) immediately establishes the principle of individualized application. The juxtaposition of "כמספר" (by number) with the subsequent verse's explicit "ארבעים" (forty) highlights the interpretive leap made by the Sages. The statement "ולא יוסיף" (and he shall not add) is the linchpin for the 39-lash rule, presented not as a direct biblical command but as a rabbinic safeguard against transgression.

Mishneh Torah, Hilkhot Sanhedrin 17:2:

"When the court estimates how many lashes the condemned is able to bear, the estimation is made in numbers that are divisible by three. If it was estimated that he could bear 20, we do not say that he should be given 21, so that the number of lashes will be divisible by three. Instead, he is given 18 lashes."

• Dikduk/Leshon Nuance: The phrase "מספרים המתחלקים בשלש" (numbers divisible by three) is the core rule. The example clarifies the application: if the estimate is 20 (not divisible by three), the execution is for 18 (the closest lower multiple of three). This isn't about exceeding the estimate; it's about adhering to a specific structural requirement for the lashings themselves.

Mishneh Torah, Hilkhot Sanhedrin 17:4:

"When it was estimated that a person could bear a specific number of lashes, they began lashing him and he became discomfited because of the power of the blows and either defecated or urinated, he is not given any more lashes. This is derived from Deuteronomy 25:3: 'and your brother will be degraded before your eyes.' Since he was discomfited, he is absolved."

• Dikduk/Leshon Nuance: "נצטער" (became discomfited) is a crucial term. The specific examples of "הפריש צואתו או מימיו" (defecated or urinated) illustrate the severity of the physical distress that warrants absolution. The verse from Deuteronomy is explicitly cited as the source, linking the physical degradation to the cessation of punishment.

Readings

Rabbi Isaac Alfasi (Rif) on Makkot 22b:

The Rif, in his digest of the Gemara, lays the groundwork for understanding the 39 lashes. He quotes the verse "כמספר פשעיו יכה" (according to the number of his transgressions he shall be struck) and then brings the Gemara's discussion: "מאי טעמא... אמר רב יהודה אמר רב: 'כי תשא את ראש בני ישראל לספרם'. אמר הקב"ה: 'לא תעשה לך חוקה'. אמר רבי יוחנן: 'כי תשא' – מנין? 'לספרם' – מנין? ... 'כמספר פשעיו יכה'. אמר רבי יוחנן: 'כל המקיים סאה של תורה הרי זה כאילו הקריב כל הקרבנות'." This seems to be a misattribution or a conceptual conflation. The core idea, however, is that the number is derived from the transgression, but the specific number 40 is also subject to interpretation. The Rif’s brevity here points to the established nature of the Gemara’s reasoning. He implicitly accepts the Gemara's derivation of 40 from the verse, and the subsequent rabbinic limitation to 39.

Rabbi Moses ben Maimon (Rambam) - Mishneh Torah:

As we see above, the Rambam presents the 39-lash rule as a rabbinic ordinance ("תקנת חכמים"). He explicitly states: "ולא יכו אותו אלא ל"ט מכות בלבד, והן שלש עשרה מכות בשלש לשונות." (He is not to be struck except 39 lashes, and these are thirteen strikes with three thongs). His primary justification is the avoidance of transgressing "ולא יוסיף" (and he shall not add). The Rambam is precise in his reasoning, framing the 39 not as a direct biblical imperative for maximum punishment, but as a rabbinic safeguard to prevent transgression of a prohibitive commandment. This is a crucial distinction. He further emphasizes the individual estimation: "ואומדין אותו אם הוא חזק ויכול לסבול מכות הרבה... ואם הוא חלוש... מפחתין לו." (And they estimate him if he is strong and can bear many lashes... and if he is weak... they reduce for him).

Rabbi Chaim ben Bezalel (Bach) - Chiddushim on Makkot:

The Bach, in his commentary on the Talmud (Makkot 22b), grapples with the source of the 39 lashes. He notes the Gemara's discussion and the difficulty in pinpointing a direct verse for why 39. He quotes the Yerushalmi which says "ארבעים יוכו, לא יוסיף". The Bach's chiddush is in highlighting the tension between the explicit "ארבעים" (forty) in the Torah and the rabbinic practice of 39. He suggests that the Sages enacted this to ensure that even if an accidental extra blow is administered, the limit of 40 is not exceeded. This aligns with the Rambam's reasoning but emphasizes the practical mechanism of avoiding transgression.

Rabbi Yosef Karo (Beit Yosef) on Tur Yoreh De'ah 343:

The Beit Yosef, discussing the laws of flogging, synthesizes the earlier authorities. He cites the Rambam and the Gemara, and quotes the Midrash Rabbah (Bamidbar Rabbah 18:21) which relates the 40 lashes to 40 curses (נחש, חוה, אדם, אדמה). The Beit Yosef's contribution is to connect the rabbinic ordinance of 39 to this midrashic understanding: "ופחתום חכמים אחת משום ‘לא יוסיף’." (And the Sages subtracted one because of 'you shall not add'). This provides a deeper, thematic layer to the halakha, linking the punishment to the consequences of the original sin.

Friction

The primary friction point arises from the precise source and rationale for the 39 lashes, and how it interacts with the biblical number 40. The Mishneh Torah states, "Therefore our Sages said: that even a very healthy person is given only 39 lashes. For if accidentally an extra blow is administered, he will still not have been given more than the 40 which he was required to receive." This presents the 39 as a rabbinic decree ("תקנת חכמים") to safeguard against transgressing the prohibition "ולא יוסיף" (Deut. 25:2), which forbids exceeding the prescribed number.

However, the Gemara in Makkot 22b grapples extensively with the number 40 itself. It derives the concept of "number" from the verse "כמספר פשעיו יכה" (Deut. 25:2), but the specific number 40 isn't directly derived from a clear biblical source in the same way as, say, the prohibition of certain foods. The Gemara offers various interpretations and discussions, including connections to the 40 days Moses spent on Sinai, or the 40 years in the desert.

The Tziunei Maharan directly addresses this friction: "עי' בכ"מ ובלח"מ שגמגמו ע"ז דהרי בגמ' דרשו זה מדכתיב במספר ארבעים ולא כתיב ארבעים במספר ונמצא דמה שמלקין ל"ט הוא מה"ת ורבינו שכתב דהוא תק"ח מאין לו זה וגם מנין לו לרבינו הטעם שכתב שהוא משום לא יוסיף." (See in Kessef Mishneh and L'vush Ha'or that they wavered on this. For in the Gemara they derive this from the fact that it is written "by number," forty, and it is not written "forty, by number," and it is found that what is lashed is 39 [as a rabbinic decree]. But where does our Rebbe [Rambam] get that it is a rabbinic ordinance, and from where does he have the reason that it is because of 'lo yosif'?").

The Tziunei Maharan questions the Rambam's assertion that 39 lashes are a rabbinic ordinance, implying that perhaps the Gemara's derivation of 40 is more fundamental, and the 39 is a secondary application. He notes that the Gemara's derivation for the number 40 is complex.

The Ohr Sameach (on 17:4:1) attempts to resolve this by linking the Rambam's reasoning to the Midrash: "דלטעמיה דמפרש דמן התורה מלקיות ארבעים רק חכמים אמרו שרק ל"ט מלקין שלא יעבור על בל תוסיף, ודבריו דברי אלהים חיים יוצאים מפי מדרש רבה פ' קרח מלקיות ארבעים כנגד מ' קללות כו' ופחתו חכמים אחת משום פן תוסיף..." (For according to his reasoning, he explains that from the Torah lashes are forty, but the Sages said to lash only 39 so as not to transgress 'do not add.' And his words are words of living God, coming from Midrash Rabbah, Parshat Korach, 'forty lashes against the 40 curses,' etc., and the Sages subtracted one because of 'lest you add'...). The Ohr Sameach argues that the Rambam’s view that it’s a rabbinic ordinance is supported by the Midrash, which connects 40 lashes to 40 curses. The Sages then subtracted one lash specifically to ensure compliance with "lo yosif." This interpretation harmonizes the Rambam's precise wording with the broader rabbinic tradition and the mystical underpinnings of the number 40.

The core of the friction is the apparent disconnect between the explicit biblical number (40) and the practical application (39), and the precise locus of authority for this adjustment. The Rambam anchors it in rabbinic wisdom for practical enforcement, while the Tziunei Maharan probes for a deeper textual basis for the Rambam's assertion of it being a takana. The Ohr Sameach provides a strong defense by integrating the Midrashic layer, giving the Rambam's position more solid footing within the rabbinic discourse.

Intertext

Deuteronomy 25:2-3:

"He shall strike him according to the measure of his wickedness by number. Forty stripes he may give, but no more, lest if he should give more stripes than these, your brother be degraded in your sight."

This is the foundational text. The Mishneh Torah's entire discussion hinges on the interpretation of these verses. The explicit mention of "forty stripes" and the subsequent prohibition "but no more" directly inform the rabbinic leniency and the safeguard of 39 lashes. The phrase "your brother be degraded" is also critical, as it forms the basis for absolution when the condemned is physically or psychologically incapacitated by the punishment, as seen in MT Sanhedrin 17:4.

Talmud Bavli, Makkot 22b:

"What is the source of forty lashes? R. Yochanan said: From the verse, 'And you shall count forty days for the offerings...' (Num. 15:10 - this is a mistaken citation, the actual Gemara discussion is more complex and varies between texts, often referencing other numerical associations or interpretations of 'by number'). R. Saphra said: From the verse, 'forty he may give, but no more' (Deut. 25:3)."

The Gemara is the crucible where the interpretation of Deuteronomy is forged. While the Mishneh Torah presents the conclusion, the Gemara explores the how and why of the number 40, and the subsequent adjustments. The discussions on the source of the 40, and the various interpretations of "by number," provide the background for the Rambam's precision in his Mishneh Torah. The Gemara's debate about the derivation of the number 40 is what leads to the friction discussed previously, as the exact source for the specific number is not as straightforward as the prohibition against exceeding it.

Mishneh Torah, Hilkhot Mamrim 1:2:

"A High Priest who sins and is liable to lashes is lashed by three ordinary judges, and not by the court of seventy-one judges. For a High Priest is not judged by his own court, but by judges like himself. And after he is lashed, he returns to his position of eminence, as it is written: 'and your brother will be degraded in your eyes,' and after he is lashed, he is your brother."

This intertext is crucial for understanding the meta-level implications of lashes. The Rambam here explicitly connects the act of lashing to the restoration of status, drawing the same verse ("and your brother will be degraded") as in Sanhedrin 17:6. This demonstrates that the punishment of lashes is not merely punitive but also a mechanism for purification and reintegration into the community or a specific role. The contrast drawn in Sanhedrin 17:6 between the High Priest and the head of the academy further highlights the nuanced understanding of these laws, where status and holiness influence the application and consequence of punishment.

Psak/Practice

The Mishneh Torah’s detailed exposition on the administration of lashes highlights several key halakhic principles.

1. Individualized Justice: The paramount concern is the well-being of the condemned. Estimation of strength ("כפי כוחו") is not arbitrary but a critical assessment to prevent death or undue degradation. This principle of proportionality and consideration for the individual's capacity is a recurring theme in penal halakha.
2. Sanctity of Prohibition: The 39-lash rule, as a rabbinic safeguard against transgressing "ולא יוסיף," underscores the importance of observing prohibitive commandments ("לא תעשה") even in the execution of positive commandments ("עשה"). The Sages prioritized preventing transgression over maximizing punishment within the theoretical biblical limit.
3. Divisibility by Three: The requirement for lashings to be divisible by three ("המתחלקים בשלש") is a fascinating example of structural halakha. It suggests that the manner of punishment, beyond its quantity, carries significance, perhaps reflecting an aesthetic or symbolic order within the law.
4. Impact of Incapacitation: The rules regarding physical or psychological distress leading to absolution are critical. This reflects a deep understanding of human frailty and the limits of judicial power. The law recognizes that when the physical or mental state of the condemned is severely compromised, the purpose of the punishment (correction and reintegration) is undermined, necessitating its cessation.
5. Restoration of Status: The connection drawn between lashes and regaining one's status, particularly for the High Priest, illustrates that punishment can also serve as a form of atonement and purification, returning the individual to a state of acceptability. This is a meta-halakhic heuristic: punishment is not solely about retribution but also about restoring order and individual standing.

Takeaway

The administration of lashes is a meticulously calibrated system, balancing biblical decree with rabbinic wisdom to ensure justice, prevent transgression, and account for human frailty. The 39-lash rule exemplifies the Sages' proactive approach to safeguarding against prohibitions, demonstrating that halakha prioritizes the avoidance of sin even in the enforcement of punishment.