by R. Gidon Rothstein
Rabbinic Lashes for Actionless Sins, Biblical and Rabbinic
We are in the process of figuring out what kinds of violations can receive makkat mardut. For Biblical sins without actions, Rambam in Laws of Hametz and Matzah 1;3 prescribes such lashes for someone who leaves leavened grains in his/her possession (where no action occurs). Peri Megadim takes it to be an example of the category as a whole, and extends the idea to failing to fulfill an obligation (such as someone who did not shake a lulav on Sukkot).
With rabbinic rules, matters are not as clear. He first thinks rabbinic violations without action should be free of punishment, because Hazal only prescribed lashes for active sin. That would explain why Rambam records such lashes for eating hametz in the sixth hour of Erev Pesah, a time when benefit is equally prohibited, yet these lashes seem not to apply. Peri Megadim thinks hana’ah (benefit) usually happens with no action, and therefore with no Biblical lashes, so Hazal never made rabbinic ones.
Shulhan Aruch Even Ha-Ezer 21;1 seems to disagree, because it assumes there would be makkat mardut for a man who deliberately took pleasure in listening to a woman sing or looking at ordinarily covered parts of her body, two other examples of violations with no action. Peri Megadim points out Rashi and Tosafot have conflicting views on the matter, where Rashi thinks a court would not use makkat mardut to coerce a Jew to light Hanukkah candles or listen to the Megillah on Purim, and Tosafot think it would.
Doubtful Cases, Biblical and Rabbinic
Peri Megadim suggested, hesitantly, that the different types of doubt in halachah explain seemingly contradictory rulings by Rambam. The Torah clearly prohibited plowing a field with an ox and a donkey in the same plow; what counts as one plow was not completely clear, such as with an animal and a fish (one on land, one in the sea). Rambam rules there are no rabbinic lashes in that case.
He held there would be such lashes for a kohen who commits marital relations with a woman of uncertain status, where we do not know if she is permitted to him (like a widow) or not (such as a divorcee, for example if we are not sure whether he had already passed away before the bill of divorce reached her).
The first is a doubt about the law, where the second is a doubt about the facts; perhaps only the latter would be addressed with makkat mardut.
The suggestion has problems, because where someone consecrates invalid wine, Rambam rules there are makkat mardut despite it being an unresolved question of law, whether the invalidating element of the wine is similar enough to a mum, a physical aspect of an animal, to violate the Biblical prohibition against consecrating such an animal. He leaves the matter unresolved, suggests the wine case might have a confounding factor, an aseh, an obligation to consecrate only worthy items, leading to makkat mardut for its violation.
Lashes Without a Violation
Rambam, Laws of Vows 12;4, records a case of makkat mardut where the person did not violate any technical prohibition. A husband has the legal ability to nullify his wife’s vow to be a nezirah, to take on a status where she may not drink wine or come into contact with the deceased. A Mishnah, Nazir 4;3, tells us if a husband nullified his wife’s vow without her knowledge, and she violated it anyway, she would be given makkat mardut.
Peri Megadim raises the possibility we would do the same with a Jew who ate what he and everyone else thought was helev, fat prohibited by the Torah, only to have it turn out to be shuman, permitted. A man who did so would become invalid as a witness as well, since Peri Megadim has previously assumed they are linked.
He is suggesting the Mishnah teaches us there can be full makkat mardut for someone who thinks s/he is violating the Torah, even if it turns out s/he did not. Because (as one of the attendees at the Daf Yomi I learn online likes to say) intent counts.
Makkat Mardut and Biblical Punishments
With Biblical lashes, were the action to also deserve a fine, we usually take only one of the two (the lashes). With makkat mardut, Rambam’s Hilchot Na’arah Betulah, Laws of a Virgin Maiden (as Sefaria renders it), leads Peri Megadim to assume the perpetrator would pay the money and not be liable for the lashes.
[The case was a man who seduces a woman who is also prohibited to him; were she prohibited at a Biblical level, he would incur lashes and not pay the usual fine for seducing a virgin. If she is prohibited by an aseh, a positive obligation, or rabbinically, Rambam says he has to pay the fine, because there are no lashes.] Peri Megadim says Rambam means the possible presence of rabbinic lashes does not exempt from a Biblical monetary payment, and once he is going to pay money, he will not have to bear the lashes.
He will, however, lose his ability to testify in court, because violations where an obligation to be lashed can be circumvented through a monetary payment are still enough to render the sinner an invalid witness (an idea we have seen before, credited to R. Yehonatan Eyebeschuetz).
Mishneh Le-Melech suggested another example of the presence of a Biblical punishment forestalling a rabbinic one. Tosafot in Makkot 13a said a kohen who has marital relations with a woman who is both divorced and a halutzah (had a freeing ceremony with her brother in law after her husband passed away without children) would incur only one set of lashes. Although there are two distinct violations (in which case, we can punish each sin separately, with two sets of Biblical lashes), Tosafot says the Biblical ones fulfill the man’s needed punishment. Mishneh le-Melech extrapolated to all situations where one act violates both a Biblical and a rabbinic prohibition.
Peri Megadim demurs, because Hazal attached their rabbinic prohibition of a halutzah to the verse that prohibits a kohen’s marrying a divorcee. Plausibly, Tosafot held their view only in that case, because the prohibitions are related. Where the violations are completely separate, he thinks there likely could be both Biblical lashes and makkat mardut.
The Torah Lays Out a Reward
For our last example of questionable makkat mardut, Peri Megadim points out conflicting sources on how a court will act towards Jews who refuse to fulfill an obligation where the Torah specified the reward. Hullin 106b indicated we do not punish such people, since they know what they are losing, the example there a man who was not honoring his parents (the Torah says fulfilling the obligation of kibbud av va-em brings long life).
On the other hand, Rambam, Laws of Rebellious Ones 5;15, called for makkat mardut for a person who mistreats his parents. [Peri Megadim does not raise what seems to me a possibility, Hullin spoke of someone who did not fulfill kibbud, where Rambam spoke of someone who was mevazeh, mistreated them verbally. I could have imagined Rambam agreeing there were no rabbinic lashes for failing to do kibbud, where bizui is an active violation the court intervenes to stop.]
Peri Megadim assumes it was a symbolic thirteen lashes rather than the lashes where the court keeps going until the sinner relents, similar to the view of Ritzba cited by Taz Yoreh De’ah 240;1, that Hullin did not mean to ban all lashes, only the extensive version.
On the other hand, Rambam called for rabbinic lashes of a person who refuses to give charity, Laws of Gifts to the Poor 7;10, despite it too having matan secharah be-tzidah, its reward laid out in the Torah. An additional challenge to our model thus far, Rambam sounds like the lashes go on until the person agrees to give the charity. Peri Megadim suggests charity has a prohibition attached to it, bal tikpotz, not to withdraw one’s hand; the prohibition has no delineated reward, making it open to the coercion of makkat mardut.
Next time, Peri Megadim moves on to other aspects of rabbinic laws, ways to understand the system. As we leave makkat mardut, we see its nuances, how it serves to punish as well as to coerce, a way for the rabbinic leadership of each generation and community to take steps to fill in the blank spaces the Torah itself left open, to ensure proper observance by all.