Sanhedrin 110

5:
The second part of our mishnah itself divides into two parts, and we must now concern ourselves with the end section of this part of our mishnah. This section of our mishnah is concerned with judicial procedure. According to our mishnah the first stage is when the parents haul their son into court and the justices warn the lad of the terrible consequences that will ensue if he persists in his "riotous and rebellious" behaviour. Our mishnah also suggests that this warning is accompanied by a judicial flogging. However, the Gemara [Sanhedrin 71b] sees here a more complicated procedure. First the parents must warn their son in the presence of two witnesses that if he persists in his wayward ways they will take him to court. Only if this does not deter the lad from further incidents of "riotous and rebellious" behaviour do the parents then bring him before a court of three justices. (These must be fully qualified justices; thus this court of three cannot be a Bet Din shel Hedyotot – a lay court – of the kind that we encountered in Chapter One of this Tractate. The reason why they must be qualified justices will become apparent in the next stage of the procedure.

6:
In order to deter the boy from his wicked ways the court of three orders a flogging. (Bear in mind that the boy's wickedness consists in having consumed less than 100 grams of rare meat and about 150 cc's of wine on more than one occasion and against his parents wishes.) There are two kinds of flogging known to rabbinic jurisprudence. The Torah prescribes for the administration of forty lashes (which the sages limited to thirty-nine). These lashes are the Malkut Arba'im that we mentioned in the confession Al Ĥet on Yom Kippur. But that confession also mentions Makkat Mardut. This refers to a flogging not prescribed by the Torah but ordered by the judges in order to coerce a recalcitrant litigator into obedience.

7:
The origin of the "Thirty-Nine Lashes" is in the Torah:

The sages were so anxious to abide by the "forty lash" limit that they prohibited the administration of even this number and reduced the limit to thirty-nine [Gemara Makkot 22a]. Moreover, by limiting the offenses for which a flogging might be administered the sages deprived the judge of his discretionary powers and flogging lost its character of a general judicial deterrent. In order to prevent accidental death resulting from flogging the person to be flogged was first physically examined in order to determine the number of lashes that could safely be administered to him [Mishnah Makkot 3:11]. Where, as a result of such an examination, less than thirty-nine lashes were administered, and it subsequently became apparent that the offender could well bear more, the previous estimate would be allowed to stand and the offender discharged. But the offender would also be discharged where physical symptoms manifested themselves during the course of the flogging itself, so that he would not be able to stand any more lashes. Floggings were administered with a whip made of calfskin on the bare upper body of the offender – one third of the lashes being given on the breast and the other two thirds on the back. The offender stood in a bowed position with the one administering the beating on a stone above him and the blows were accompanied by the recital of admonitory and consolatory verses from Scripture (though it is not clear to me who was considered to be consoled by this recitation: the judge, the offender, the bailiff, the public). It seems to me that the introduction of flogging into the case of the "riotous and rebellious son" is yet another example of the unreal atmosphere surrounding this whole topic. How many of the thirty-nine judicial lashes would a lad in 7th grade be deemed capable of sustaining!? "There never has been and there never will be a case of a riotous and rebellious son" [Gemara Sanhedrin 71a].

8:
Makkat Mardut was an innovation of the sages and may be categorized as disciplinary or coercive rather than punitive in nature, calculated to enforce obedience to the court. While punitive floggings had to be restricted to a maximum number of blows, disciplinary floggings had to be unrestricted so that they could be continued until the offender was prepared to submit and do his duty.

9:
If the boy repeated his offence even after having been sentenced to a flogging the offence becomes capital and must be tried before a court of twenty-three fully qualified justices. However, our mishnah adds a further requirement. The three judges who sentenced the boy to a flogging must be included among the twenty-three. This is learned from the wording of the statement of the parents to the court: "'This son of ours'" is understood as indicating 'this lad who was flogged in your court'.

10:
The last section of our mishnah (a separate mishnah in the Gemara) is concerned with procedure in a case where the offender escapes before punishment is administered. If the boy manages to escape before being sentenced to death by stoning he may very well get off scot free! We recall that only a lad over the age of thirteen who had not yet reached puberty could be tried as a "riotous and rebellious son". (We noted that the onset of puberty was defined by the growth of genital hair.) So, if the boy escaped before the judges could pronounce their verdict and during the (necessarily short) period between his escape and his re-apprehension he reached puberty, sentence could not be passed and obviously could not be carried out! But if he escapes after being having been sentenced and subsequently produced genital hair, the sentence is to be carried out: when he was sentenced he was within the jurisdiction of the law. Under rabbinic law, any person who has been sentenced to death is already considered to be judicially dead and therefore may be put to physical death with no further delay.

And on that merry note let me wish Shabbat Shalom and Ĥag Samé'aĥ to everybody.