Rabbinic Lashes

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by R. Gidon Rothstein

Starting at paragraph twenty-three of the first part of the Petihah KolleletPeri Megadim takes up makkat mardut, rabbinic lashes. Deliberate violations of rabbinic laws could have incurred Biblical lashes according to Rambam, who says every violation of a rabbinic law inherently also violates the Torah’s prohibition of lo tasur. Nonetheless, Hazal chose to distinguish their laws from other Biblical ones, and this was one way, by exempting their ordinances from Biblical lashes.

Peri Hadash, Orah Hayim 496;1 took the position they left open two options for how to discipline those who flout their laws. Makkat mardut is one, the other nidui/ herem, versions of social ostracizing. A bit later in the PetihahPeri Megadim brings up the idea again, and notes Ran’s idea, rules the rabbis innovated are punished with nidui, rules they made as extensions of Torah law get lashes.

Peri Hadash 471;2 also discussed how many lashes are involved (the eventual answers are either 39, as with Biblical lashes, or thirteen, according to Rabbenu  Tam), and that when the sin is ongoing, such as Jew refusing to sit in a sukkah on the holiday, the court will give these lashes until the sinner yields, even to the point of killing him/her if s/he remains obstinate. Peri Megadim also later says these lashes are less harsh (the one holding the whip does not hit as hard as for Biblical ones).

[The whole idea of lashes as a punishment is likely foreign to us, may sound extremely harsh. Peri Megadim does not discuss it—I think because he was so accustomed to the idea– and it can certainly be abused, but I do wonder whether those who have committed crimes would prefer lashes or years in prison. The latter seems to me much more life-disruptive. Men who get out of prison after a few years have a very hard time rebuilding their lives, where lashes, painful as they are, heal enough within a week or two to get back to living.

This discussion takes for granted another out of fashion idea, a community’s right to discipline around religious observance, when the person’s “private” choice of nonobservance, seemingly not affecting anyone else, is seen as a matter of communal concern. The Gemara thought public refusal to observe the Torah, in a Torah-based society, was a public matter, I think for the example it sets and the risk it poses to maintaining communal norms, and therefore properly within the court’s right to discipline and enforce.

A Jew cannot decide not to perform a mitzvah where the community will see and notice his/her lack of observance; it is the proper role of the court to cajole, convince, or coerce the Jew observance, even if it requires significant force. A point to ponder.]

Losing One’s Right to Witness

To kick off paragraph twenty-four, Peri Megadim notes a crucial distinction between the kinds of sins. One that deserves Biblical lashes renders the sinner a Biblical rasha, evildoer, disqualified from testimony at that level. Where Biblical lashes are not relevant, rabbinic sins or Biblical ones where the Torah did not institute lashes (such as a lav she-ein bo ma’aseh, a prohibition violated without an action), the sinner does often incur makkat mardut, and become disqualified from giving testimony at a rabbinic level.

It gives more urgency to the question of what kind of lashes a sin incurs, if any, even in an environment where no lashes will be given, because it also tells us who is or is not allowed to serve as a witness. [Valid testimony matters for disputes, as well as for ceremonies where witness is necessary, such as marriage.]

It leads Peri Megadim to pose nine questions, which I will share as he answers them. First, he wonders whether rabbinic lashes require warning—as do Biblical ones, to be sure the sinner is acting deliberately rather than unwittingly. He cites Rambam in Laws of Sanhedrin 18;5, a court can administer makkat mardut wherever no warning was given for a Biblical sin. Peri Megadim assumes the same would be true for purely rabbinic sins where makkat mardut are relevant, no warning is needed.

The Sins of Makkat Mardut

Here is where he comes back to the question of nidui, ostracizing, vs. makkat mardut, suggests Ran’s idea that it depends on whether the rabbinic law is an extension or protection of Torah law, in which case it gets lashes, or is wholly formulated by Hazal, in which case nidui is the proper strategy. Peri Hadash thought it was the court’s choice, and Rambam had pointed out we generally do not place Torah scholars in nidui. Either way, they answer his current question, what sins incur makkat mardut?

He notes the flow of the conversation seems to assume nidui is the worse punishment, such that even were we to say some sins get only nidui, those who commit them would become rabbinically disqualified as witnesses.

He then quotes R. Yonatan Eyebeschuetz, with great respect, who held violators of certain Biblical sins for which there was no Biblical punishment—a prohibition put in the Torah to set the stage for a possible death penalty, a prohibition attached to an obligation that could rectify it—would lose their right to testify as a matter of Torah law. The lack of punishment is a technical matter rather than any indication of such sins being less severe.

Peri Megadim wonders about plain prohibitions with no lashes, however, because those might be less stringent, as might be when a Jew violates a prohibition attached to an obligation and fulfills the obligation, especially if the Jew intends to fulfill it when violating the prohibition (the Jew steals something intending to return it, or takes a mother bird with her eggs intending to soon send her away; in those situations, there is room to say fulfilling the obligation wipes away the violation).

Sins With No Makkat Mardut

Rambam makes clear some transgressions would not incur even makkat mardut. In Laws of Shabbat 1;4, he notes he will occasionally write that a certain person is patur mi-kelum, completely free of consequence, or eino hayyav kelum, not liable at all. In all such cases, there would not be even lashes (Peri Megadim sends us to Maggid Mishneh and Lehem Yehudah, conveniently brought by R. Eisenberger, who point out Rambam chose not to write mutar, because they are not permitted, only not punished).

Peri Megadim gives only one example from Shabbat laws, a type of carrying that could never violate Torah law because the object itself is tall enough that it could never be rested in a Biblical reshut ha-rabim, public space (reshut ha-rabim extends only ten tefahim up in the air, about three feet).

A more familiar example he gives comes from the laws of Pesah, where Rambam records the possibility of makkat mardut for eating hametz in the sixth hour of Erev Pesah. (Hazal prohibited eating hametz after the fourth hour of the day, and benefitting from it after the fifth hour). Lehem Mishneh noted the implication, there would be no lashes for eating it during the fifth hour, and suggested Hazal did not choose to punish eating when benefit was permitted.

Makkat mardut can affect Biblical sins and rabbinic ones, of varying severity, or not be relevant at all. Next time, we will start with the ramifications of sins with no human punishment for them. 

About Gidon Rothstein

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