Q&A: Lashes
Lashes
Question
Hello and blessings!
In the Talmud in Sanhedrin 10a, the Gemara discusses the source for the fact that three judges are needed for lashes, and this is its language:
“From where are these words derived? Rav Huna said: Scripture says, ‘and they shall judge them’—that implies two; and since a religious court cannot be evenly split, they add one more, making three. But if so, then ‘and they shall justify’—two, and ‘and they shall convict’—two, making seven! That phrase is needed for the teaching of Ulla, as Ulla said: From where in the Torah is there a hint to conspiring witnesses? A hint to conspiring witnesses? But it is written, ‘as he intended’! Rather: from where is there a hint that conspiring witnesses receive lashes? For it is written: ‘and they shall justify the righteous and convict the wicked.’ Is it because they justified the righteous and convicted the wicked that therefore ‘if the wicked man deserves to be beaten’? Rather, it refers to witnesses who convicted the righteous, and then other witnesses came and justified the one who had originally been righteous, and rendered those others wicked—then, ‘if the wicked man deserves to be beaten.’ But let this be derived from ‘You shall not bear false witness’! Because that is a prohibition involving no action, and for any prohibition involving no action one does not receive lashes.”
Rashi explains that according to the Gemara’s conclusion, the words “and they shall justify” and “and they shall convict” do not refer at all to an act of the religious court, but rather to the testimony of the conspiring witnesses and the witnesses who expose them as conspiring witnesses. By contrast, Nachmanides on the Torah holds that these words do refer to the act of the religious court, which justifies the righteous and convicts the wicked.
If so, there seems to be a stark dispute among the medieval authorities (Rishonim) as to whether the words “and they shall convict” or “and they shall justify” can refer to a sentence of lashes.
The following explanation occurred to me, and I wanted to hear your opinion. Perhaps the expressions “and they shall convict” and “and they shall justify” do not mean that the court imposes an obligation on the person, but rather that it determines the person’s status—as guilty, righteous, etc. Indeed, the Torah says, “whomever the judges declare guilty shall pay double to his neighbor.” First there is a determination of the person’s status as wicked/guilty, and as a consequence he is also obligated to pay a fine; but the meaning of conviction is the determination of the person’s status as guilty. Perhaps here too that is the meaning of these expressions, and Rashi and Nachmanides disagree regarding the nature of liability for lashes—whether it is merely the imposition of an obligation, or whether the entire role of the religious court is to determine the status of the person as guilty, and therefore he becomes liable to lashes. (See, for example, Kovetz He’arot 16:7.)
Answer
Before getting into the explanation, I don’t understand what it is meant to explain. There was an initial assumption in the Gemara, but in the conclusion it speaks about witnesses, not about the court. So what is the problem? Rashi follows the midrashic exposition, and Nachmanides follows the plain meaning, and neither of them has anything to do with the Gemara’s initial assumption.
Discussion on Answer
I don’t see the difficulty, so I also don’t see any need for the solution you propose. I wouldn’t build anything on such a nuance, but of course if it seems reasonable to you, then you can say it even without proofs and necessities from the verses and the medieval authorities (Rishonim).
Nachmanides is not dealing with the plain meaning of the verse—he brings the above rabbinic exposition and interprets it a bit differently from Rashi, as I noted. (And indeed, the Pnei Yehoshua in Makkot and the author of HaKetav VehaKabbalah ask against Nachmanides that this is only in the category of a mere hint, so why does he interpret the verse this way? This requires further investigation.) In other words, Rashi understood that the main difficulty the Sages had was that the words “and they shall justify” and “and they shall convict” refer to the court, and therefore the Gemara says that this refers to the act of testimony. Nachmanides, however, maintains that this was not the Sages’ difficulty at all—they were bothered by a different question: does every time the court justifies or convicts a person mean that he becomes liable to lashes, and therefore they redirected the verse to conspiring witnesses? If so, it comes out that they disagree whether there is an essential problem in defining the court’s act of imposing lashes with the words “and they shall justify” and “and they shall convict,” or whether this is only a local problem. I wanted to connect this to the question of what the role of the religious court is in liability for lashes—determining the person’s status or imposing the obligation. Based on that, one can understand whether it is possible to use the words “and they shall convict” or “and they shall justify,” which determine the person’s status, in the context of imposing liability for lashes.