(Devar Torah on Parashat Ki Tetze, Deuteronomy 21:10 – 25:19 given at Temple Israel on Friday evening 9/16/16)
My late mother used to say, if she or someone else made some minor faux pas, that the offending party should be punished with “forty lashes with a wet noodle.” I looked that expression up on line and got a reference to Eppie Lederer (aka “Ann Landers”) using the phrase periodically in this way.
It seems to me no coincidence that my mother and Ann Landers were both Jewish because it seems that the expression might come out of rabbinic commentary on this week’s Torah portion.
In Deuteronomy 25: 1-3, from this week’s Torah portion, Parashat Ki Tetze, we learn:
א כִּֽי־יִהְיֶ֥ה רִיב֙ בֵּ֣ין אֲנָשִׁ֔ים וְנִגְּשׁ֥וּ אֶל־הַמִּשְׁפָּ֖ט וּשְׁפָט֑וּם וְהִצְדִּ֨יקוּ֙ אֶת־הַצַּדִּ֔יק וְהִרְשִׁ֖יעוּ אֶת־הָֽרָשָֽׁע׃ ב וְהָיָ֛ה אִם־בִּ֥ן הַכּ֖וֹת הָֽרָשָׁ֑ע וְהִפִּיל֤וֹ הַשֹּׁפֵט֙ וְהִכָּ֣הוּ לְפָנָ֔יו כְּדֵ֥י רִשְׁעָת֖וֹ בְּמִסְפָּֽר׃ ג אַרְבָּעִ֥ים יַכֶּ֖נּוּ לֹ֣א יֹסִ֑יף פֶּן־יֹסִ֨יף לְהַכֹּת֤וֹ עַל־אֵ֨לֶּה֙ מַכָּ֣ה רַבָּ֔ה וְנִקְלָ֥ה אָחִ֖יךָ לְעֵינֶֽיךָ׃
1 When there is a dispute between people and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong — 2 if the guilty one is to be flogged, the magistrate shall have him lie down and be given lashes in his presence, by count, as his guilt warrants. 3 He may be given up to forty lashes, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.
For us modern readers, it would seem obvious that any sort of corporal punishment coming out of a civil or criminal case would be contrary to our contemporary values. However, according to Rabbi Melanie Aron in a 2011 dvar torah on this topic, “[i]n ancient Israel there was no long-term imprisonment. People were held until their case could be heard, but the choices for punishment were fines and lashes, or, in the most extreme cases, the death penalty.” 
(And I’ll add here, that the Talmud adds so many evidentiary requirements that it rendered the death penalty virtually theoretical.)
We often hear voices in contemporary society calling for harsh treatment of criminal offenders, for punishing prison conditions and for denial of voting rights to those who have completed their sentences. All under the general rubric of being “tough on crime.”
However, the Torah – especially as filtered through the lens of the Talmud and later rabbinic tradition --- argues instead for compassion. This idea jumps out at us in Deuteronomy 25:3, where the convict who is subject to flogging is pointedly referred to as “"אחיך/”achikha”/ “your brother.” Rashi, citing the earlier rabbinic commentary Sifrei, comments on this verse: “All day long he has been the ‘guilty one’ but now that his flogging is over, he is once again ‘your brother.’”
Or to put it into contemporary terms, once a criminal has paid his or her debt to society, we should work to integrate them back into society recognizing them as a fellow citizen. (Which is why, for example, I’ve never been able to understand how it could possibly be justified to deny voting rights to ex-felons, as some states continue to do, even if such denial of voting rights has some historical precedent in common and civil law systems that predate the birth of the United States.)
As for the number forty in the above passage, Nachmanides says that this refers to the forty days that Moses was on Mt. Sinai receiving the Torah. Rejecting Torah, says Nachmanides, should be worthy of death, but instead, the Torah calls for forty lashes because (according to the understanding of the early rabbis) forty days was the amount of time it took after conception for a fetus to be formed in the womb.
Actually, the Talmud rules that the maximum number of lashes should be no more than 39, lest there be a miscount and one exceeds 40 lashes.
And, moreover, the guilty party is to be examined carefully by the judge so that, if it looks like he or she might not be able to withstand 39 lashes, then fewer lashes, as low as just 3 lashes, can be given.
And, moreover, according to the Talmud’s tractate on lashes (Masechet Makkot 23a), those appointed to administer the lashes should be weak in body but strong in understanding.
Basically, the idea is that the administration of justice should never cause us to reject the humanity of the guilty party.
I think this idea can be extended to our personal relationships, which I needn’t remind you should never include physical violence or the threat of physical violence.
Rather, I think a contemporary lesson that we can draw from this passage in the Torah is that we should always remember that anyone against whom we may have a grievance is still a human being --- still, in the terminology of the Torah, “achikha” – “your brother” (or your sister).
The traditional blessing that precedes the bedtime recitation of the Shema includes the declaration: “I hereby forgive anyone who has angered or provoked me or sinned against me, physically or financially or by failing to give me due respect, or in any other matter relating to me, involuntarily or willingly, inadvertently or deliberately, whether in word or deed […] – may no person be punished on my account.”
As we approach the Yamim Nora’im/ The Days of Awe – may we be able to find it in our hearts to forgive others, and may our own transgressions be purged with no more pain that that which would be caused by forty lashes with a wet noodle.
© Rabbi David Steinberg (Elul 5776/ September 2016)