Misvot #594-595: Malkut – Administering Lashes to Violators

The Torah commands in Parashat Ki-Teseh that when somebody is found guilty of a violation, he must be given Makut (lashes). The Sefer Ha’hinuch explains that this command is actually intended for the benefit of the transgressor. The afflictions that sinners endure in this world have the effect of cleansing their record, such that they can be worthy of the eternal rewards in the next world. In G-d’s great love for Am Yisrael, whom He treats as His precious children, He prescribed a system of punishment in this world so that violators can have the opportunity to receive great rewards in the world to come. Before the Malkut were administered, the violator would have his hands tied to a pole. The court official would tear the violator’s shirt until his chest was exposed, and stand on a stone behind him. The whip was made from the hide of a calf. One-third of the prescribed lashes were directed to the front of the violator’s body, and the other two-thirds struck his back. This command applies only in Eretz Yisrael, and only when there are courts consisting of judges who had received the official Semicha (ordination) that originated with Moshe Rabbenu. The Sefer Ha’hinuch writes that if a court failed to administer Malkut when this was required, they were deserving of severe punishment, because it is the threat of punishment that deters prospective sinners and thereby ensures compliance with the Torah’s laws. In this same verse, the Torah introduces a prohibition against lashing the convicted sinner more than the prescribed number of lashes. The Sages understood this command as establishing a general prohibition against striking a fellow Jew. This is inferred from the repetitious phrase in this verse – “Lo Yosif, Pen Tosif” – which implies that this prohibition is directed not only to the court official administering Malkut, but to all of us, forbidding striking our fellow. The Torah here states that a violator is given forty Malkut, but tradition explains this to mean thirty-nine. The Rambam writes that in truth, the verse should be understood literally, as referring to forty lashes, but tradition lowered the number to thirty-nine as a safeguard, to ensure that the court official does not exceed forty lashes. The Sefer Ha’hinuch questions why the Rambam advanced this novel theory, when the Gemara explicitly states that the word “Arba’im” (“forty”) in this verse means “one less than forty.” In any event, these thirty-nine lashes are the maximum amount the violation would receive. An assessment would be made by physicians beforehand to determine how many lashes the sinner could endure, based on his age and physical condition. If he could not tolerate even three lashes, then he would not receive any. The number of lashes needed to be a multiple of 3. Thus, for example, if the doctors determined that the violator could handle twenty lashes, then he would receive eighteen lashes. If, as the sinner is whipped, he lost control of his bodily functions, then he was not whipped anymore. If the whip was torn at some point after the court official began administering the Malkut, then he was required stop, without giving more lashes. If, however, the whip broke before the official began lashing the sinner, then he would repair the whip and proceed. If the sinner’s hands were not tied well to the pole, and he was able to escape, then he was not given lashes thereafter. It is forbidden not only to strike one’s fellow, but even to merely lift one’s hand and threaten to strike him. This Halacha is inferred from the story told in Parashat Shemot (2:13) of Moshe approaching two men whom he saw fighting. He turned to the “wicked one” and asked why he was striking his fellow. The Sages understood that Moshe saw this man lift his hand to strike the other, and so this person is called “the wicked one,” as it is forbidden even to lift one’s hand to strike somebody. This second aspect of the prohibition, which forbids striking one’s fellow, applies in all times and places, and to both men and women. The first aspect of this command, of course, applies only in the Land of Israel, during times when courts are authorized to administer punishment. One who strikes his fellow must make a series of payments to compensate him for the harm inflicted. As such, the violator is not liable to Malkut, as one is not liable to Malkut if he incurred a financial obligation by committing the transgression. If, however, one struck his fellow and the harm inflicted was worth less than a “Peruta” (the smallest unit of currency), then since there is no obligation to pay, he is liable to Malkut for violating this prohibition.