Q&A: "Not as your inclination to acquit is your inclination to convict" regarding lashes
"Not as your inclination to acquit is your inclination to convict" regarding lashes
Question
Shalom to the Rabbi,
In Sanhedrin 2b: “Not as your inclination to acquit is your inclination to convict: your inclination to acquit is according to one, your inclination to convict is according to two.” And likewise, in capital cases three more judges must be added, and afterward another two judges are added as long as we still have not been able to reach a decision according to this rule.
Does this conclusion also apply to cases of lashes? That is, if two judges obligate lashes and one acquits, do we add another two judges until we reach a margin of 2 for conviction or 1 for acquittal? And if not, why not?
Thanks in advance
Answer
As far as I know, no. This applies only to capital cases. I assume it is because of the severity of the punishment and its irreversibility. For that reason, in most legal systems today there is no death penalty at all (true, lashes are not used either).
Discussion on Answer
In the Mishnah at the beginning of tractate Sanhedrin there is a dispute over how many judges are required at all in a religious court for lashes. The halakhic ruling is that it is like monetary cases. So it follows that capital cases are a category unto themselves.
Obviously the Sages had a rationale to be stricter in capital cases, but regarding the details of the law I do not know whether they would have been derived from reasoning alone. Plainly, they are not derived from the verse by itself.
The Sages derived this rule from the verse: “You shall not follow a majority to do evil; neither shall you answer in a dispute to incline after a majority to pervert justice” (Exodus 23:2).
How did they conclude that this verse does not apply to cases of lashes?
On 3b, Tosafot explain that “to do evil” implies “bad for everyone,” that is, capital cases, whereas in monetary cases it is a right for one side and a liability for the other.
That explains very well why they do not expound the verse with regard to monetary cases, but on its face lashes are also “bad for everyone.”
According to the Rabbi’s suggestion that the severity of capital cases is the determining factor, does that mean this is an “uncovering” exposition—that is, that the Sages looked for a verse that would justify their reasoning that the power of the majority should be limited in capital cases?