A Threat To Life And Limb
‘How Many Lashes Are Given Him? Forty Save One’
(Makkos 22a-b)
Our Mishna and Gemara now deal with the amount of lashes administered to one who is found guilty of an infraction that warrants such punishment. The Torah, in Parshas Ki Teitzei (Devarim 25:3), states: “Arba’im yakenu, lo yosif…” – Forty [lashes] shall he be flogged, he shall not add. The Tanna Kamma, based on the words “he shall not add,” rules that we administer only 39 lashes, while R. Yehudah opines that a full 40 lashes are administered.
The Mishna further elaborates that (even according to the Tanna Kamma) only an individual who is deemed fit will receive the full set of lashes. However, where it is determined that the offender is too weak, the Beth Din assesses how many lashes he is able to withstand and administer his punishment accordingly.
He May Lose Count
Rambam (Hilchos Sanhedrin chap. 17:1) explains that the sages instituted that a sinner be flogged only 39 lashes, rather than 40, due to a concern that the court officer might lose count and mistakenly deliver an extra blow (thus arriving at a total of 41) and violate the prohibition “lo yosif” – he shall not add. Thus, since they instituted a punishment of only 39 lashes, were he to exceed by one he will arrive at the Torah’s original directive.
Issur D’Rabbanan
Kessef Mishneh (Rambam ad. loc.) asserts that from Rambam’s explanation it would seem that the pasuk cited by the Mishna and the Gemara is only a support – asmachta – a scriptural allusion to a rabbinic law, but is not a genuine exegesis from the pasuk.
Pikuach Nefesh
Poras Yosef (ad. loc.) argues that according to Rambam, the Beth Din is not permitted to administer the full set of 39 lashes unless they determine that he can withstand 40. However if they determine that he can only withstand 39, they are then duty bound to restrict his punishment to one less than 39, in order that they not transgress the rabbinical prohibition of “lo yosif.” Another reason would be that notwithstanding the prohibition of “lo yosif,” the Beth Din should restrict in such a case due to pikuach nefesh – to avoid inflicting a mortal blow. As 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 where there is threat to life and limb.
