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To Flog or Not to Flog

Which sinners are to taste the lash, how many strokes of it, in what circumstances, with what intention, and as just punishment in which cases, and with what exceptions: As always, the Talmud leaves no contingency unaccounted for

Adam Kirsch
November 28, 2017
Inset image: The British Library/Flickr
Inset image: The British Library/Flickr
Inset image: The British Library/Flickr
Inset image: The British Library/Flickr

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

The third and last chapter of Tractate Makkot deals with the subject that gives this section of the Talmud its name: makkot, or lashes. In Deuteronomy 25, the punishment of flogging is prescribed for anyone guilty of “wickedness”: “And it shall be, if the wicked man deserves to be flogged, then the judge shall cause him to lie down and to be flogged before him.” This makes it sounds as if lashes can be administered to just about anyone, at the discretion of a judge. But as we learned this week, the Mishna restricts the punishment to certain kinds of offenses. These include some sexual crimes, such as sex with a menstruating woman; violations of ritual purity having to do with the Temple or the sacrifices; eating bread on Passover, or eating at all on Yom Kippur; eating non-kosher food, including “creeping animals” such as insects; and some others.

Notably, these are crimes against God, not against human beings; they involve violations of divine commandments rather than injury to another person. This does not make them lesser crimes, just because their consequences are invisible. On the contrary, the Torah punishes them by karet, or “excision,” which is the ultimate punishment in Judaism. In the Bible, this word sounds like it has to do with ostracism from the community. Leviticus 18, for instance, says that Jews who commit abominations “shall be excised from among their people,” which makes it sound as if they were sent out of the Israelite camp to fend for themselves. But in the Talmud, karet is redefined as a punishment of the soul, involving “excision” from the World to Come. We read in Tractate Sanhedrin that all Jews have a share in the World to Come, even including murderers; but people who are punished by karet forfeit that share.

No punishment could be worse than this eternal separation from God. Yet for some crimes—for instance, incest between a brother and sister—the invisible punishment of karet is accompanied by the physical punishment of makkot. In the Gemara on Makkot 13b, the rabbis ask whether this constitutes a double punishment, which is ordinarily forbidden in Jewish law. Someone who is liable to both execution and flogging, for instance, is not flogged because the greater punishment is considered to supersede the lesser. Why doesn’t the same logic hold when it comes to someone liable to both karet and flogging? The explanation given by Rabbi Akiva is that flogging is actually an opportunity for repentance; if a sinner repents after receiving lashes, “the heavenly court absolves him” and he does not receive karet in the afterlife. By this logic—which was also the logic of the Inquisition—physical torture is actually a gift to the criminal because by suffering on Earth he is spared infinite torments in the next world.

In general terms, lashes are the punishment for those who violate a negative commandment, a biblical “thou shalt not.” The rabbis, who always see juxtapositions in the Bible as carrying a secret meaning, point to Deuteronomy 25, where the institution of flogging is followed by a seemingly unrelated commandment: “You shall not muzzle the ox when he threshes the grain.” The reason for this mitzva seems to be that it is cruel to the ox to prevent him from eating the grain that he is helping to produce. But it is the form of the mitzva that matters to the rabbis: whenever a commandment says “don’t do this,” and someone does it, he is liable to be flogged.

However, things get more complicated in the case of mitzvot that include a positive as well as a negative component. In the Gemara in Makkot 15a, the rabbis take the example of a man who rapes an unmarried woman. According to Deuteronomy 22, the “punishment” for this crime is that the man must marry his victim, and he can never divorce her. The rationale for this law is that the rapist’s main crime has been to reduce his victim’s value on the marriage market. By stealing her virginity, he has made it impossible for her to find a husband; as a result, he must marry her himself and never send her away.

Of course, this Torah law speaks volumes about the values of patriarchy and its view of women as commodities. But leave aside its justice or injustice for the moment, and consider its logical form. Here we have a positive mitzva—the rapist must marry his victim—paired with a negative mitzva—he may not divorce her. But what if he writes out a bill of divorce, a get, and gives it to her anyway? Now he is guilty of violating a negative commandment, which means that he should be flogged. But he is also guilty of violating a positive commandment, and such offenses are not punished by flogging because they can be remedied by simply performing the mitzva. In this case, the man could cure his wrongdoing by remarrying the woman he divorced.

So how is such a man to be punished? This is a tricky question, which the Gemara discusses at length. One view is that he should be flogged for sending his wife away, which violates a negative mitzva. Another is that he should not be flogged because as long as his wife is still alive, he can fulfill a positive mitzva by remarrying her, and so he has not yet committed an irreparable crime. According to this view, it is only when the mitzva is nullified—that is, rendered impossible of fulfillment—that he would be flogged. If, for instance, the rapist was a priest, and he married his victim and then divorced her, he could never remarry her, because a priest cannot marry a divorced woman. Such a priest would be liable to be flogged because he had nullified the mitzva, while a non-priest would effectively escape punishment.

Later in Chapter Three, the Mishna identifies further crimes that are punishable by lashes, this time having to do with personal appearance. The Torah forbids Jewish men from shaving their heads or faces (though the rabbis interpreted this as allowing for trimming hair with scissors). As a result, beards became a marker of Jewish masculinity for most of Jewish history. But what is the reason for this prohibition? The answer becomes clear in Makkot 20a and the following pages, where the ban on “rounding the edge of the head” is accompanied by bans on cutting one’s skin as part of a mourning ritual and on being tattooed. These are all ways of interfering with the natural integrity of the human form, and Judaism places a high value on the dignity and sanctity of the body.

There is also, however, a polemical intention to these prohibitions. For shaving, tattooing, and self-mutilation were evidently common practices among the Canaanites, and it is specifically as idolatrous rituals that they are prohibited to Jews. That is why, according to Rabbi Shimon, not all tattoos are banned, only those that contain “the name of an object of idol worship.” Likewise, self-mutilation is only forbidden when it is performed using a utensil, which is how the priests of Ba’al used to lacerate themselves; tearing your skin with your own hands is not a crime.

Finally, the Mishna in Makkot 22a gets down to practical questions. When a person is sentenced to flogging, how many lashes does he receive? The Torah states “by number, 40 shall he strike him, he shall not add”: This seems plain enough. But the rabbis interpreted the phrase “by number, 40” to mean “a number adjacent to 40”—that is, 39. This prompted Rava to comment, ironically, that the Jewish people should rise in the presence of a Sage, just as they do in the presence of a Sefer Torah, “as in a Torah scroll 40 is written and the Sages came and subtracted one.” (Of course, this is not even the most egregious example of the way the rabbis take it upon themselves to change the Torah’s meaning.)

Anyone who is sentenced to flogging receives 39 lashes, then—unless a doctor decides that he is not physically capable of withstanding that many, in which case the number is reduced. And it must always be a number divisible by three—a rule with no apparent justification except the desire to lessen the number of lashes. (For instance, a person who is sentenced to 20 lashes must receive 18.) Finally, if the doctors underestimate the victim’s strength, they cannot impose additional lashes later. If a criminal is sentenced to 18 lashes and at the end it seems he could stand more, he is exempt from additional punishment. As always when it comes to inflicting suffering, the rabbis use every excuse to err on the side of leniency.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.