flogging
Peace and blessings!
In the Gemara in Sanhedrin 10:1, the Gemara originally discussed the need for three judges for whippings and punishments:
“From my sources, Rav Huna said, “Read (Deuteronomy 25) and if two are judged and there is no court of law that will judge them, adding another one, here are three, but from now on (Deuteronomy 25) and they justified two and condemned two, here are seven, that one explained to him, as if he said, “Ola, a hint to the witnesses who conspire from the Torah, where is the hint to the witnesses who conspire? And is it not written (Deuteronomy 19) when they conspired, but an hint to the witnesses who conspire, where is it written (Deuteronomy 19) and they justified the righteous and condemned the wicked, because they justified the righteous and condemned the wicked, and if the wicked man is beaten, but there are witnesses who condemned the righteous and he is a witness after me, and they justified the righteous from the beginning, and he is declared to be wicked, and if the wicked man is beaten and he is punished (Exodus 20) fully, you will answer because God has given him, not because he has done nothing, and not because he has done nothing, there is no blame on him.””
Rashi explains that in the conclusion of the Gemara, the words “and saved” and “condemned” do not refer to the action of the judge at all, but to the action of the testimony of the conspiring witnesses and the conspirators of the conspirators. In contrast, the Ramban on the Torah believes that they refer to the action of the judge, who justify the righteous and convict the wicked.
So there is a polar disagreement among the first regarding whether the words ‘and condemned’ or ‘and justified’ can refer to a sentence of flogging.
The following explanation occurred to me, and I wanted to hear your opinion. It is possible that the expressions ‘and they convicted’ and ‘and they justified’ do not mean imposing an obligation on the person by the court of law, but rather as determining the status of the man (guilty / righteous, etc.). Indeed, the Torah states, ‘Whoever God convicts shall pay two years for his neighbor. First, there is the determination of the man’s status as a wicked man, and as a result, he is also obligated to pay a fine, but the meaning of the conviction is the determination of the man’s status as a guilty man. It is possible that this is also the interpretation of these expressions in the case of Didan, and Rashi and the Ramban argued about the nature of the obligation to inflict lashes – is it a mere imposition of an obligation, or is it also the entire function of the court of law to determine the man’s status as a guilty man, and in that case he is obligated to inflict lashes (see Ladug in the comments of the collection, notes 16, 7)
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The Ramban does not deal with the written text; he brings the aforementioned sermon of the Sage and interprets it slightly differently than Rashi, as I mentioned, (and indeed the Penin in Makot and the author of the text and the Kabbalah make it difficult for the Ramban to understand that this is a hint in the sense of a hint and why he interprets the verse in this way). That is, Rashi understood that the main difficulty of the Sage is that the words "and justified and condemned" refer to the law, and therefore the Gemara assumes that this is a Kai on the action of testimony, while the Ramban assumes that this is not the difficulty of the Sage at all. They had difficulty with another question: whether every time the judge justifies or convicts a person, he is obligated to be flogged, and therefore they turned the verse into a conspiracy of witnesses. It follows that they disagreed on whether there is a fundamental problem in defining the act of imposing the flogged by the judge with the words “and justified and condemned” or whether this is a specific problem. I wanted to link this to the question of what the judge’s role is in imposing flogged – determining the status of the man or imposing a liability. Accordingly, it can be understood whether it is possible to use the words “and condemned” or “and justified” that determine the status of the man in the context of imposing the liability of flogged.
I don't see the difficulty and therefore I don't see a necessity in the solution you propose. I wouldn't base anything on such accuracy, but of course if you think it makes sense then you can say so even without evidence and necessity from the verses and the first verses.
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