A Threat To Life And Limb
‘How Many Lashes Are Given Him?’
(Makkos 22a-b)
The Gemara addresses the number of lashes administered to one who is found guilty of an infraction warranting malkos. The Torah (Devarim 25:3) states, “Arba’im yakenu, lo yosif – Forty [lashes] shall he be given; he shall not add.” In a mishnah, the Tanna Kamma and R. Yehudah disagree over how many lashes are administered. Based on the words “he shall not add,” the Tanna Kamma rules that we administer 39 lashes while R. Yehudah maintains that we administer 40.
The mishnah further states that only an individual who is deemed fit receives the full set of lashes. If it is determined that the offender is too weak, however, beis din assesses how many lashes he is able to withstand and gives him that amount.
He May Lose Count
The Rambam (Hilchos Sanhedrin 17:1) explains that the sages fixed the number of lashes at 39 instead of 40 for fear that the court officer might lose count and mistakenly deliver an extra blow and thus violate the prohibition of “lo yosif – he shall not add.” By fixing the number at 39, the Sages ensured that even if the officer is off by one in his count, he won’t violate any prohibition; indeed, he will merely be fulfilling the Torah’s original directive.
Issur D’Rabbanan
The Kessef Mishneh (Rambam ad. loc.) asserts that it seems from the Rambam’s explanation that the pasuk cited by the mishnah and Gemara is only an asmachta, a scriptural allusion to a rabbinic law, rather than an actual biblical command.
Pikuach Nefesh
Poras Yosef (ad. loc.) argues that, according to the Rambam, beis din is not permitted to administer the full set of 39 lashes unless it determines that the person can withstand 40. However, if it determines that he can only withstand 39, it is then duty-bound to restrict his punishment to 38 lashes in order not to transgress the prohibition of “lo yosif.”
In addition to the prohibition of “lo yosif,” beis din should be careful how many lashes it administers because of pikuach nefesh. Our sages rule (Chullin 10a), “Chamira sakanta me’isura – [Grave] danger is treated more severely than a prohibition.” Indeed, at times we even override a prohibition if there is threat to life and limb.