Peshat and Derash in the Laws of Lashes
Yeshivat Har Etzion
PARASHAT KI TETZE
Peshat and Derash in the Laws of Lashes
By Rav Amnon Bazak
In his commentary Aderet Eliyahu (at the beginning of parashat Mishpatim), the Vilna Gaon explains the relationship between the literal meaning of the Torah text (peshat) and halakhic exegesis (derash) as follows:
" But the halakha supersedes the text [here], as is the case throughout most of this parasha and likewise in several other parashiot of the Torah. This reflects the greatness of the Oral Law, which was handed down as law to Moshe on Sinai, and which registers as a reverse impression [of the Written Law], like a stamp leaves a reversed impression on clay ... And therefore one must know the peshat of the Torah, in order to recognize the stamp."
The Vilna Gaon here addresses the common phenomenon whereby the law as traditionally derived in Midrashei Halakha differs from the halakha that seems to arise from the literal Torah text. The Vilna Gaon regards this as testimony to the "greatness of the Oral Law", while emphasizing the importance of familiarity with the literal text - the "stamp."
This principle is particularly highlighted in the halakhic sections of the Torah, and especially in the parasha of Ki Tetze, which contains the greatest number of mitzvot: a total of seventy-four positive and negative mitzvot. In this shiur we will focus briefly on just one short section, which illustrates the above idea in three different laws - the section pertaining to the law of lashes. We shall attempt to understand both the "peshuto shel Mikra," the literal meaning of the text, and the midrash halakha, as well as the reason for the discrepancy between them.
- "HE SHALL BE DEALT FORTY LASHES; NO MORE"
- "WITH A NUMBER OF LASHES THAT IS IN ACCORDANCE WITH HIS EVIL ACTIONS"
Possibly the most famous law in the parasha, and one that has become symbolic of rabbinic authority, regards the administering of lashes to certain sinners:
"If there shall be an argument between people and they come to judgment It shall be that if the transgressor is punishable by lashes, then the judge shall have him lie down and he shall be beaten before him with a number of lashes that is in accordance with his evil actions. He shall be dealt forty lashes, no more, lest he beat him further with many lashes and your brother shall be degraded before your eyes." (Devarim 25:1-3)
While the Torah here clearly states that the maximum number of lashes cannot exceed forty, we find the following well-known instruction by Chazal:
"How many lashes is he given?
Forty less one, as it is written, 'with a number forty;' i.e., a number that is close to forty.
Rabbi Yehuda says: He is given the entire forty lashes." (Makkot 22a) 
This interpretation is patently not in accordance with the literal reading of the text: the word "be-mispar" (with a number) concludes verse 2, while the word "arba'im" (forty) opens verse 3. The Gemara addresses this teaching of Chazal, regarding it as symbolic of their halakhic power:
"Rabba said: How foolish are those people who rise before a Torah scroll but do not rise before a great sage, for in the Torah it says 'forty,' but the rabbis deducted one." (Makkot 22b)
But why did Chazal really change the literal law? The Rambam offers the following explanation:
" How is one who is deserving of lashes to be beaten? The fact that [the Torah] says 'forty' indicates that no more than forty lashes should be administered even if [the sinner] is as mighty and strong as Shimshon, but in the case of a weak person the number is diminished Therefore OUR SAGES TAUGHT that the strongest person is dealt only thirty-nine lashes, for if one more is added [accidentally] then he will have been dealt only the forty that he deserved." (Hilkhot Sanhedrin 17:1; see also his Commentary to the Mishna, Makkot 3:11)
The Rambam is, of course, introducing an innovative interpretation. He seems to suggest that the biblical instruction does indeed indicate forty lashes, and that the limitation of "forty less one" is of purely rabbinical origin. Indeed, this is one explanation offered by the Kesef Mishneh for the Rambam's ruling; if so, the gemara's derivation of this limitation from a biblical verse is merely an "asmakhta" and does not indicate that the limitation is of biblical origin. However, this contention is clearly difficult to maintain - there is no apparent reason to regard this exegesis of the verse as "merely providing biblical support for a rabbinic law." It is for this reason that the Radbaz comments,
"The Rambam is explaining why the Sages made this exegesis: Since the verse does not say, 'He shall receive thirty-nine lashes,' it seems that he deserves forty ... therefore they were forced to explain that the verse means 'a number adjacent to forty,' such that if one more is added [accidentally] then he will have been dealt only the forty that he deserved."
In other words, there are two levels: on the level of the literal text, the sinner indeed deserves forty lashes, but since the whole point of this parasha is to warn us concerning his dignity, Chazal derived from the verse that only thirty-nine lashes be administered, in order to prevent a situation whereby additional lashes are added by mistake, degrading the subject in the eyes of his beholders. Hence what Chazal were doing here was not trying to divest the biblical command of its literal meaning, but rather to follow its intention and to limit the prohibition - while awarding their limitation biblical halakhic status.
The literal text of the verse - "he shall be beaten before him with a number of lashes that is in accordance with his evil actions" - would seem to suggest that the number of lashes varies in accordance with the severity of the sin. Ibn Ezra explains:
"It would seem to us that there are some sins for which one is punished with ten lashes, others for which one is punished with twenty, or more, or less, as the Torah teaches, 'in accordance with his evil actions;' only one should not exceed forty - were it not for the oral tradition, which alone is the truth." 
ýHe refers here to Chazal's teaching that the nature of the sin makes no difference; in any event he is dealt forty lashes less one. 
Ibn Ezra brings another interpretation, which fits in well with Chazal's teaching that the number of lashes is not dependent on the type of transgressions involved. However, this interpretation still varies the lashes according to the evil actions of the transgressor:
"Some say that the phrase 'according to his evil actions' refers to stronger or weaker lashes, in each case the total being forty."
Chizkuni offers a similar interpretation, but it is not entirely certain that he represents this as the literal meaning of the text.
Two commentaries - Abarbanel and Shadal - indeed adopt the position that according to the literal text the number of lashes varies in accordance with the severity of the transgression. This leaves us once again with a question as to why Chazal standardize the punishment for all types of transgressions, contrary to the literal instruction of the text.
A similar phenomenon is to be found in another parasha:
"If people are fighting and they hurt a pregnant woman such that she miscarries but no further damage is caused, then he will be given a punishment such as the woman's husband will lay upon him, and he shall pay as ordered to by law." (Shemot 21:22)
Here, too, it would appear that the sum to be paid as damages is left to the discretion of the husband of the woman, although he is limited in this regard - "as ordered to by law." Both Ibn Ezra and Chizkuni comment,
"The phrase 'such as the woman's husband will lay upon him' means that if the assailant accepts upon himself the damages demanded by the husband, then he pays but if he does not accept upon himself the amount demanded of him, then he goes to court and pays whatever amount they set."
There are other examthat illustrate the same principle that we have witnessed in these parashiot, i.e., the trend towards standardization and the limiting of the issues left to the discretion of the judges. The reasons for this in our parasha are quite clear: the Torah takes great care to safeguard the dignity of the transgressor who is to be beaten, and therefore Chazal place a further restriction on the maximum number of lashes. A similar rationale lies behind the issue of the severity of the punishment to be determined. According the literal understanding of the text, a very heavy responsibility rests on the shoulders of the judges, who must determine how many lashes are to be dealt in each individual case. A single mistake on their part will create a situation whereby "your brother will be degraded in your eyes." In order to eliminate this problem, the Oral Law establishes a standard punishment for all transgressions punishable by lashes, thereby avoiding the possibility of the court unintentionally and unlawfully causing the transgressor to be humiliated.
C. "IF PEOPLE ARE FIGHTING"
Our parasha discusses a dispute between two people, such that the "guilty party" - the one who loses the case - is deserving of lashes. But, as we know, in reality no lashes are administered in a monetary case, while for transgressions of a negative mitzva, they are:
"Can it be that every person convicted by law is punished with lashes? [Surely not. For this reason] the Torah teaches, 'It shall be that if the guilty party is punishable by lashes' - i.e., in some instances he is punishable by lashes while in other instances he is not. And who is in fact punishable by lashes? We learn this from the [adjacent verse,] 'You shall not muzzle an ox while it treads' - i.e., a prohibition that is attached to a positive commandment."
For this reason, Chazal were forced to explain our parasha as referring to deceitful witnesses, in a specific instance where the law of "You shall do to him as he schemed to do to his brother" is impossible to fulfill - for example, in a case where the witnesses testify that a kohen is the son of a divorced woman (the case at the beginning of Massekhet Makkot). The Ramban senses the forced nature of their interpretation:
"On the basis of THE TRADITION OF OUR SAGES that lashes are administered to one who transgresses a negative command, why would this punishment be applicable at all in the case of an argument between two people? Therefore THE SAGES INTERPRETED the Torah's instruction here as pertaining to the instance of deceitful witnesses..."
Therefore the Ramban suggests a different application of Chazal's rule that lashes are administered only for transgressing negative commandments:
"It is possible that a quarrel between two people will result in one of them being punishable by lashes, for instance in the event that one injures the other less that a peruta's worth of damage, or one curses the other using God's name [and since in these two cases the aggressor cannot pay monetary compensation, he receives lashes] The Torah mentions the most common case, for the injured party will generally appeal to the court, and will thus cause the aggressor to be dealt lashes."
Nevertheless, we may ask: If a literal rendition of the text would seem to suggest that lashes are applicable in the instance of a legal dispute between two parties, why did Chazal do away with this punishment (except in a case that a negative commandment is transgressed)? [Here again, Shadal and Abarbanel point to the discrepancy between the literal biblical text and the midrash halakha.]
It seems that once again the principle guiding Chazal in their ruling was the Torah's command to protect the dignity of the transgressor. Arguments and disputes between people over monetary matters are an everyday occurrence, and the merciful aspect reflected in many of Chazal's rulings that differ from the literal text  indicates that a person should not be beaten if his actions do not point to any evil intention on his part to transgress a commandment of the Torah.
We have reviewed very briefly three laws included in the parasha dealing with lashes, all of which seem to reflect a discrepancy between the Written Law and the Oral Law, as the early commentators point out. We have followed the directive of the Vilna Gaon - "One must know the literal meaning of the text, in order to recognize the [inverse] stamp," and have suggested the possibility that all of these changes arise from the same rationale: Chazal's wish to apply the Torah's instruction fully and to protect the dignity of the transgressor. "A Jew, even if he transgresses, remains a Jew" - and one who is dealt lashes for his evil actions nevertheless remains "your brother."
(Translated by Kaeren Fish)
 This is one of several instances in which Rabbi Yehuda rules in accordance with the peshuto shel Mikra: see, for example, Sifri Devarim 236 and the related gemara in Ketubot (46a); Sifri Devarim 292-293; Pesachim 21b and 23b; and Zevachim 59a-b.
 This is in line with Ibn Ezra's consistent approach: unlike most classical commentators, such as Rashbam, Ramban and Chizkuni, he refuses to recognize any discrepancy between the Written and the Oral Laws. He nearly always understands verses in accordance with the interpretation they are given by the Midrashei Halakha. See, for example, his Short Commentary to Shemot 21:24.
 Of course, there does exist a situation whereby the number of lashes is less than thirty-nine, namely, when the subject is deemed too weak to survive that many lashes; see Rambam, Hilkhot Sanhedrin 17:1-3.
 Such as "An eye for an eye," the rebellious son, and the idolatrous city.
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