From: JoshHoff@aol.com
Sent: Friday, September 16, 2005 12:47 AM
To: JoshHoff@aol.com
Subject: Netvort:parshas Ki Seitzei, 5765

                                       I've Got Your Number
            By Rabbi Joshua (deservingly  known as The Hoffer) Hoffman


In this week's parsha, we learn of the form of punishment prescribed by the Torah for someone who transgresses a prohibition of the Torah. The Torah tells us that if men have a quarrel and they are brought to judgment, the judges should 'vindicate the righteous one and find the wicked one guilty." If, continues the Torah, the wicked one is worthy of being struck, "the judge shall cast him down, and he shall strike him, before him, according to his wickedness by a count. Forty shall he strike him, he shall not add; lest he continue to strike him many blows beyond these, and your brother shall be degraded in your eyes" ( Devorim, 25: 1-4).In the following verse, the Torah presents the prohibition of muzzling an ox while it is threshing. The Talmud in Makkos derives, from his juxtaposition, the nature of the prohibition that one must transgress in order to incur the punishment of lashes. For example, the prohibition must be one which involves a direct action on the part of the perpetration ( 'lav sheyeish bo ma'aseh), just as muzzling one's animal is a direct action. However, besides this formal connection, there is also an intrinsic connection between the punishment of lashes and the prohibition of muzzling one's animal while it threshes. Rabbi Shimshon Raphael Hirsch, in his Torah commentary, gives a lengthy exposition of both the formal and the intrinsic connection. I would like to focus on the intrinsic connection, and show how a general principle in Torah interpretation can be derived from it.


The Talmud in Makkos, 23a, tells us that the strands of whip used for the administration of the lashes must be made from calfskin and donkey hide, as a hint to the verse in Yeshaya,1:3, "The ox knows its owner and a donkey knows the trough of its master; Israel does not know, My nation does not understood." As explained by Rabbi Hirsch, the punishment is meant to educate the sinner, making him realize that by transgressing God's word, he has not shown the kind of gratitude that even an animal intuitively shows its master. The Torah says that through the lashing, the perpetrator will be degraded before his brothers. Through developing a sense of shame in reaction to the punishment for his offense, the sinner will, hopefully, repent of his sin. Rabbeinu Yonah, in his Gates of Repentance ( not cited by Rabbi Hirsch), writes that a sense of embarrassment and shame over one's sins is a major part of the process of repentance. Although the person, by his actions, has actually sunk below the level of an animal, Rabbi Hirsch writes that the Torah, by placing the prohibition of muzzling an animal while it threshes directly after the section on the punishment of lashes, is telling us that we should not treat a human being worse than an animal. I believe, however, that there is a deeper message in this juxtaposition, as I will demonstrate.


The Mishnah in Makkos, 22 a, tells us that although the Torah mentions the number of forty in prescribing the punishment of lashes, the court cannot exceed thirty-nine. They further explain that the number of lashes he receives must be an odd number, divisible by three, similar to the number thirty-nine. thirty- nine. The Talmud (22 b) then tells us that great Torah scholars deserve our honor and respect, to the extent that we should rise for them, just as we rise for a Torah scroll, because the Torah mentioned forty lashes, and the rabbis reduced the number to thirty- nine. Rabbi Kalman Kahane,zt'l, who was the founding rabbi of Kibbutz Chaim, presents, in the first volume of his work Cheiker VeIyun, an elaborate discussion of the different opinions concerning this exegesis, considering whether it constitutes the simple meaning of the verses, or a rabbinic adjustment. He shows, among other things, that the Rambam seems to take opposite approaches to this question in different works that he wrote. One explanation that he does not mention, however, but which is suggested by Rabbi Yehudah Copperman in his book, Peshuto Shel Mikra, is that both are true. The true intent of the Torah, according to this approach, is that the sinner should receive forty lashes. However, out  of consideration for human dignity, the sentence is reduced to a maximum of thirty-nine, and must be given as an odd number of lashes closest to the number that the person's physical constitution can bear without having his life threatened by the punishment.


My teacher, Rabbi Aharon Soloveichik, zt'l, gave a similar explanation of the Rambam's approach to the rabbis' explanation that the Biblical punishment of' an eye for an eye' is actually referring to monetary payment. By right, as the Rambam explains in his Guide for the Perplexed, the sinner deserves to have his own eye removed, in conformity with the principle of 'measure for measure.' However, the Torah took human weaknesses into consideration, and reduced the severity of the punishment that the person would receive. Rabbi Copperman, writes that , in actuality, this kind of change from the ideal situation to the stuation as it manifests itself in daily life is the difference between 'peshat,' or the plain meaning of a verse, and 'derash', or the extrapolated meaning. The plain meaning of the verse, then, tells us what Torah law should be on an ideal level, and the derash tells us how this law translates itself to the level that human beings are actually on, in thisworld. Based on Rabbi Copperman's application of this principle to the number of lashes a sinner should receive by pure Torah law, and the Torah's deflection from that number to a smaller one, we can better understand the intrinsic connection between the punishment of lashes and the prohibition of muzzling one's animal while it threshes produce.


As we have seen, when a person transgresses a prohibition of the Torah, he acts on a level even lower than  that of an animal. Thus, we would expect that he should be treated on a level even lower than that of an  animal, and no regard at all should be given to his dignity. Thus, although the Torah does show consideration for the animal and prohibits us from muzzling it while it threshes, a sinner does not deserve this kind of consideration. In fact, this is what the Torah is intimating when it tells us that the sinner should receive forty lashes. However, this is only the law of the Torah on an ideal level, before it is translated to the every day world. The rabbis teach us that Torah law, as applied to this world, does take into consideration man's frailties, and his basic dignity, and deflects from a strict application of the law, which would treat him as being lower than the animals, and imposes a smaller number of lashes, so that the degradation hat the sinner suffers is sufficient to bring him to repentance, but not severe enough to lower his dignity below that of the animals. Even though the sinner has, in fact, acted in a manner that world warrant such a severe punishment, the Torah does not impose such a penalty. It is in this sense that the Talmud tells us that rabbis, by discerning this fundamental approach to punishment in the Torah, are worthy of our honor and respect, just as the scroll of the Torah itself is worthy of such treatment.


Please address all correspondence to the author (Rabbi Hoffman) with the following address - JoshHoff @ AOL.com.

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