Now just over 90% of the way into the tractate, the Talmud turns its attention to practical details about how a flogging is implemented. Topic number one: the maximum number of lashes that can be administered. The Torah states:
And it shall be, if the wicked person is worthy to be flogged, the judge will have the person lie down, and they shall be beaten in the presence of the judge by a certain number. Forty lashes they may give the person, but not more: lest being flogged further, to excess, your kinsperson be degraded before your eyes. (Deuteronomy 25:2–3)
Deuteronomy seems relatively straightforward — flog a person with a number of lashes appropriate to the crime, up to a maximum of 40 lashes. But that is not most rabbis’ interpretation, as today’s mishnah states:
With how many lashes does one flog a person sentenced to receive lashes? Forty lashes less one.
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Rabbi Yehuda says: A person is flogged with a full 40 lashes.
According to the tanna kamma (the anonymous first opinion) the maximum lash number is 39, one less than the maximum prescribed in the Torah. Interestingly, there is evidence outside rabbinic texts this was the standard among Jews in antiquity. In the New Testament, Paul asserts that he has been beaten with 39 lashes by the Jews on five different occasions (2 Corinthians 11:24). But why did 39 become the standard number of lashes for Jews to administer? The Gemara suggests a midrashic explanation:
What is the reason that the tanna kama says that the person receives 40 lashes less one? If it had been written, “40, by a certain number,” I would say that it means 40 as a precise sum; now that it is written, “by a certain number, 40,” the Torah indicates that it means a sum that approaches 40, i.e. 39.
The text of the Torah is unpunctuated and its division into verses was not as formalized in the rabbinic era as it is today. Reading the two verses as one, the Gemara explains that had the word order been reversed, we would conclude that 40 lashes were allowed, but given the actual word order, the Torah is indicating a number that is close but not equal to 40 — i.e., 39.
This reading may feel a bit stretched. Perhaps for that reason Rava declares:
Rava said: How foolish are the rest of the people who stand before a Torah scroll and do not stand before a great man. Forty is written in a Torah scroll, but the sages came and subtracted one.
Rava acknowledges that the average reader will interpret the requirement in Deuteronomy as 40 lashes and states that would be an error. He praises the rabbis for their creative reading that reduces the penalty by one lash. In doing so, he reminds us that those who interpret a text — in this case the rabbis — ultimately have the power to determine what it means.
We still might wonder why the rabbis read Deuteronomy this way. It is Maimonides who gives us a more scrutable explanation: Forty, he says, is indeed the maximum permissible number; however, we limit ourselves to 39 as a precaution lest the person administering the flogging exceeds the prescribed limit by inadvertently adding an extra lash. In providing logical support for the reduction in lashes, Maimonides may be suggesting that the midrashic reading of the biblical verses is not the source of the tanna kama’s position, but rather an asmakhtah (a hint of biblical support).
Read all of Makkot 22 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 30, 2025. If you are interested in receiving the newsletter, sign up here.
