Temple Beth-El Torah Study - November 21, 2015 Deuteronomy 25:1-4

(1) When there is a dispute between parties and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong---

(2) if the guilty one is to be flogged, the magistrate shall have the person lie down and shall supervise the giving of lashes, by count, as warranted by the offense.

(3) The guilty one may be given up to forty lashes, but not more, lest being flogged further, to excess, your peer be degraded before your eyes.

(4) You shall not muzzle an ox while it is threshing.

(17) The Section on judges includes also the commandment to blot out the memory of Amalek (Deut. 25:17-19). In the same way as one individual person is punished, so must also a whole family or a whole nation be punished, in order that other families shall hear it and be afraid, and not accustom themselves to practise mischief. For they will say, we may suffer in the same way as those people have suffered; and if there be found among them a wicked, mischievous man, who cares neither for the evil he brings upon himself nor for that which he causes to others, he will not find in his family any one ready to help him in his evil designs. As Amalek was the first to attack Israel with the sword (Exod. 17:8-16), it was commanded to blot out his name by means of the sword; whilst Ammon and Moab, who have not been friendly simply from meanness, and have caused them injury by cunning, were only punished by exclusion from intermarriage with the Israelites, and from their friendship. All these things which God has commanded as a punishment are not excessive nor inadequate, but, as is distinctly stated, "according to the fault" (Deut. 25:2).

(2) [Witnesses who say,] "We testify that such and such a man owes his fellow two hundred zuz" and are found to be zomemin, receive lashes and must pay [the amount they testified about], for the Biblical verse that brings upon them [the witnesses] lashes does brings upon them [the requirement to make] restitution. [This is]the view of Rabbi Meir. And the Sages say, whoever makes restitution does not receive lashes.

The Rabbis' opinion is perfectly fine, [as] it is written, 'according to his evil act'. Because of one singular evil act you punish him, and you do not punish him for many evil acts.

The word "rasha" (wicked person) is said by the laws of lashes (Deuteronomy 25, 2) and the word "rasha" is said by the laws of the death penalty (Numbers 35, 31). Just as there is no half of a death penalty, so too there is no half of lashes.

(1) ומכה אביו ואמו, “and if someone strikes his father or his mother;” the Torah here spells out the penalty, i.e. legal execution, without even having informed us that this is forbidden, an unusual construction. This question is raised by the Talmud, tractate Sanhedrin, folio 54. We have a rule that no court can convict a sinner except where the Torah has warned us of the sin in question being a sin. Granted that in the case of someone cursing a crowned head or even a deaf person who cannot even hear the curse, is forbidden, i.e. both a low-ranking person and a high ranking person must not be cursed, it is obvious that the same rule applies to social strata in between, and therefore each strata does not need to be written separately; compare (Exodus 22,7 and Leviticus 19,7) but where did the Torah spell out the prohibition to strike a human being without the penalty being spelled out simultaneously? We must fall back on Deuteronomy 25,3, where the Torah warns the court’s clerk not to apply more than the permitted number of lashes to a person convicted of these. If in the case where the physical punishment is mandatory even a minutely excessive force is specifically forbidden, it is clear that striking someone without the consent or even instruction by the court is forbidden, how much more so is striking someone without such legal cover forbidden! In fact, concerning the subject of physical punishment, the halachah is according to the view of Rabbi Meir, who said that if someone is guilty of two penalties, both physical punishment and a financial penalty, (and we do not apply both for the same sin) the physical punishment is not administered. (Talmud, tractate Ketuvot, folio 32) The only exception is if the financial penalty amounts to less that the lowest coin in circulation at the time in the country. In this respect, the halachah does not treat sins committed against father or mother differently from offences committed against someone else. If you were to ask that seeing the verse deals with the prohibition of striking one’s father, a sin which carries the death penalty, how could anyone have even imagined that the penalty would be 39 lashes, seeing that we have a rule that physical lashes are never an option for committing such a sin, (compare Talmud tractate Makkot folio 13), the answer is that we have two different expressions in the verse dealing with that subject in Deuteronomy 25,3. It says both: ארבעים יכנו לא יוסיף,, as well as פן יוסיף להכותו על אלה מכה רבה, “forty lashes he may give him, he must nor exceed this,” and “lest he should exceed above by inflicting a severe wound, etc.;” you may also argue that seeing the subject in our chapter deals with inflicting wounds, how could the penalty be one of execution by a court? How would I know that if the blow administered did not result in a visible wound that it would be punishable altogether? Furthermore, when the Torah speaks about cursing father and mother (Leviticus 20,9) execution is the penalty, how could it occur to anyone to think that the penalty would be 39 lashes? We would have to look at Leviticus 24,21 where the Torah decrees the death penalty for striking a human being, any human being, i.e. ומכה אדם יומת, “if he strikes a human being she shall be executed!” On that verse Rashi felt compelled to explain that the human being meant in that verse is one’s father, and that the reason is to contrast and to compare the penalty for striking animals and striking one’s father, where the former is punishable only by financial compensation to the owner of that animal. We could conclude that just as when said animal did not die from its wounds only a financial penalty is imposed, the same would be true for striking human being who does not die a result. The Torah therefore wrote the word יומת, “he shall be executed,” to show that the verse speaks of a human being who is the father of the man who struck him.(Compare Rashi on that verse.) It is not possible to say that the Torah there speaks of someone who had struck one’s father after he was dead, but the verse speaks of living animals and a living father being the victim. What is the difference between יומת and מות יומת, the usual term for legal execution? The former refers to a financial penalty, just as in Exodus 21,29, where the owner is not executed, but the Torah uses this word to show that he deserves to be executed. We know this as previously the Torah had written: כן ינתן בו, “thus it shall be rendered to him.” (verse 20) This was a clear reference to a financial penalty. In light of the above, we must understand the word יומת in Leviticus 20,9 as having been meant literally and applying to someone who struck his father or mother.