Sanhedrin 008

1:
Flogging was a punishment imposed by the court according to the instruction of the Written Torah in Deuteronomy 25:1-3

Despite the clear wording of the text of the Torah, flogging actually took a different course. The major difference is that in the Torah text flogging seems to be seen as a punishment following any possible civil action; however, under rabbinic law flogging was administered for a certain category of misdemeanour only, as we shall explain in the next section.

2:
The Written Torah contains two categories of mitzvah [precept, command]: positive and negative. Positive mitzvot require us to do something (such as "honour your father and mother"); negative mitzvot require us to refrain from doing something (such as "do not steal"). There are also several categories of punishment for transgression. According to Rambam [Maimonides, 12th century CE, North Africa] in Hilkhot Sanhedrin, Chapter 18 flogging is a punishment that is restricted to the following types of transgression only:

1. Contravention of a negative mitzvah the punishment for which is Excision and which is not a capital crime.
2. Contravention of a negative mitzvah the punishment for which is [premature] death at the hands of heaven.
3. Contravention of a negative mitzvah when the contravention involves a deliberate act.

An example of the first category would be someone who deliberately eats ĥametz on Pesaĥ, or someone who deliberately eats the forbidden intestinal fat of an animal. Both of these are negative mitzvot whose punishment according to the Torah is excision. (Excision is a punishment from heaven that implies that physical death is also spiritual death for that transgressor.) The idea, as explained by the rabbis, is that by suffering the flogging the culprit has already been punished and thus will escape the punishment of excision.

3:
Furthermore, in order to "qualify" for a flogging the culprit has to have been warned by two witnesses that he is about to do wrong and the culprit must have contravened the mitzvah deliberately, and not inadvertently.

To be continued.

Reuven Boxman has questions concerning explanations that I have given. He specifically wants to know how the "rabbinic interpretation" come about to what seems to be clearly different from the peshat in several cases. His first example concerns something I wrote on January 26th that "According to rabbinic understanding, the husband's claim (in the topic under discussion) is that during the interval after Kiddushin and before Nissu'in, the woman committed adultery." Reuven asks: Why do the rabbis confine this to the betrothal period? It would seem that
a simple reading of the text would refer to non-virginity from whatever time, at least in terms of the husband's expectations.

I respond:

Actually the rabbinic understanding is derived indirectly from the peshat! Deuteronomy 22:20 reads that "if the matter proves to be true…" This is understood as indicating that the matter has to be proven to the court that she had an illicit sexual union with someone after her betrothal. (Before her betrothal she has committed no crime that can be judged by the court, since adultery can only be committed by an "eshet ish", a married woman. Therefore, the woman's guilt must be proven by two witnesses testifying that they warned her not to do it and that she was betrothed at the time. Failing that – no case case be brought. (I think that Reuven himself sensed this from the continuation of his comment – which I have savagely edited out!

I also wrote that Once the animal has been "indicted" for a third time it can no longer be viewed as harmless, and the owner is required to pay compensation at the full value of the damage sustained.

Reuven asks: Why indicted for a "third" time? A simple reading of the text (Exodus XXI,29) (mitmol shilshom) would seem to set a less definite standard.

I respond:

And yet it is exactly those Hebrew words that Reuven has cited that are the basis for the rabbinic interpretation! The Hebrew reads literally "yesterday and the day before". When we add this to the present goring we have three indictments – today, yesterday and the day before yesterday.

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Jerry Gottesman writes:

From my memory of this mishnah, there is a discussion of expert versus ordinary judges. The gemorrah concludes that legally (midoraitah), expert judges are required in all cases, but to allow the poor farmers access to loans, the rabbi's over rode their strict interpretation of the torah.

I respond:

This is correct, and this is, I believe, what we learned in the shiur of January 16th.