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To: yhe-parsha@vbm-torah.org
Subject: PARSHA61 -44: Parashat Ki Tetze
YESHIVAT HAR ETZION
YISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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PARASHAT KI TETZE
Peshat and Derash in the Laws of Lashes
By Rav Amnon Bazak
INTRODUCTION
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.
a. "HE SHALL BE DEALT FORTY LASHES; NO MORE"
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) [1]
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.
b. "WITH A NUMBER OF LASHES THAT IS IN ACCORDANCE
WITH HIS EVIL ACTIONS"
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." [2]
yHe 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. [3]
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 huswill 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 examples that 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 [4]
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)
FOOTNOTES
[1] 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.
[2] 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.
[3] 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.
[4] Such as "An eye for an eye," the rebellious son, and
the idolatrous city.
YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH
ALON SHEVUT, GUSH ETZION 90433
Copyright (c) 2001 Yeshivat Har Etzion.
All rights reserved.
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