FLOGGING


FLOGGING, punishment by beating or whipping. This at all times has been the instinctive way to inflict disciplinary *punishment: a parent "disciplines" his son by beating him (cf. Deut. 8:5; 21:18; Prov. 19:18; 23:13–14; 29:17) as does a master his slave (Ex. 21:20,26). More than any other punishment, flogging is a means of correction rather than retribution, and, being a substitute for the capital punishment which, in the rabbinic view, every violator of God's word properly deserves, it reflects God's infinite mercy (cf. Sanh. 10a, Rashi ibid.).

In Biblical Law

It appears that, where no other punishment was expressly prescribed, flogging was in biblical law the standard punishment for all offenses (Deut. 25:2). The exegetical difficulties which arose in view of the preceding verse (25:1) gave rise to such restrictive interpretations as that the law of flogging applied only in limited cases of assault (Ibn Ezra, ibid.) or perjury (cf. Mak. 2b); but there need not necessarily be any connection between the two verses – the former being construed as a self-contained exhortation to do justice in civil cases as well as in cases of mutual criminal accusations (cf. Mid. Tan. to 25:1). It is noteworthy that flogging is the only punishment mentioned in the Bible as a general rule, and not in relation to any particular offense (but cf. Deut. 21:22 regarding postmortem hangings; see also *Capital Punishment), the only exception being the flogging prescribed, in addition to a *fine, for the slanderer of a virgin (Deut. 22:18).

The maximum number of strokes to be administered in any one case is 40 (Deut. 25:3), "lest being flogged further, to excess, your brother is degraded before your eyes" (ibid.). While this number was later understood as the standard, fixed number of strokes to be administered in each case (less one), there is no valid reason to assume that it was not in factintended and regarded as a maximum limit – the preceding words, "as his guilt warrants" (25:2) indicating that the number of strokes was to be determined in each individual case according to the gravity of the offense, provided only they did not exceed the prescribed maximum. The scriptural intention to prevent any "degradation" of the human person is served by the fact that no discretion was allowed to the judges, who may tend to harshness or cruelty (Ibn Ezra, ibid.). There is norecord of the manner in which floggings were administered in biblical times. Various instruments of beating are mentioned in the Bible (Judg. 8:7, 16; Prov. 10:13; 26:3; I Kings 12:11, 14; et al.), but any conclusion that they (or any of them) were the instruments used in judicial floggings is unwarranted.

In Talmudic Law

Talmudic law not only made detailed provision for the manner in which floggings were to be carried out, but also altered the concept of the biblical punishment; the maximum of 40 lashes was reduced to 39 (Mak. 22a), so as to avoid the danger of exceeding 40 even by mistake; and the offenses which carried the punishment of flogging were exactly defined, depriving it of its character as a residuary and omnibus punishment. The number of 39 lashes became the standard rather than the maximum number; but in order to prevent death by flogging – which would amount to a violation of the biblical injunction of "not more" than flogging – the person to be flogged was first physically examined in order to determine the number of lashes that could safely be administered to him (Mak. 3:11). Where, as a result of such examination, less than 39 lashes were administered, and it then turned out that the offender could well bear more, the previous estimate would be allowed to stand and the offender discharged (Maim. Yad, Sanhedrin 17:2). But the offender would also be discharged where physical symptoms manifested themselves during the course of the flogging, so that he would not be able to stand any more lashes, even though on previous examination he had been found fit to stand more (ibid. 17:5). It also happened that as a result of such examination, floggings were postponed for another day or later, until the offender was fit to undergo them (ibid. 17:3).

Offenses Punishable by this Method

The offenses carrying the punishment of flogging are, firstly, all those for which the *divine punishment of karet is prescribed; secondly, all violations by overt act of negative biblical injunctions (ibid. 18:1). However speech is not, as such, considered an overt act: thus, a person insulting the deaf or going about as a talebearer among the people in violation of express negative injunctions (Lev. 19:14–16) would not be liable to be flogged (Yad, loc. cit.). It is only when speech is tantamount to an act, as in vows substituting another animal for a sacred animal (Lev. 27:10), that flogging is inflicted (Tem. 3b); as it is also for swearing falsely by, or taking in vain, the name of God – "for the Lord will not clear one who swears falsely by His name" (Ex. 20:7; Deut. 5:11), but the court will, by flogging him (Tem. 3a). Flogging is also prescribed for cursing, i.e., wickedly using the name of God – because failure "to revere this honored and awesome Name" is expressly given as the cause of the infliction of makkot, a term meaning lashes as well as plagues (Deut. 28:58–59). Even though the offense is committed not just by speech but also by an overt act, it does not always result in a flogging: thus, where reparation must be made by money, as for the crime of stealing (Ex. 20:13; Deut. 5:17), the payment of *damages and fines is preferred to flogging; and as two punishments may not be inflicted for the same offense, the rule is that he who pays is not flogged (Mak. 1:2; 4b; Ket, 32a). For the same reason, no flogging can be inflicted where the offense carries capital (as distinguished from divine) punishment (Tosef., Mak. 5:17). Where the negative injunction is coupled with a positive one, as for instance: "thou shalt not take the dam with the young, thou shalt let the dam go, but the young thou mayest take" (Deut. 22:6–7), liability to be flogged only ensues if the negative injunction is violated and the positive disobeyed as well (Mak. 3:4; Ḥul. 12:4).

Floggings were administered with a whip made of calfskin on the bare upper body of the offender – one third of the lashes being given on the breast and the other two thirds on the back. The offender stood in a bowed position with the one administering the beating on a stone above him and the blows were accompanied by the recital of admonitory and consolatory verses from Scripture (Mak. 3:12–14; Yad, loc. cit. 16:8–11). If death ensued, even though the flogging was administered according to law, the executioner was not liable; but if the law had not been faithfully observed by him, he would be obliged to resort to a city of *refuge as in the case of any other accidental homicide (Yad, loc. cit. 16:12).

Disciplinary Floggings

There are reports in the Talmud of several extralegal floggings being prescribed (see *Extraordinary Remedies), for example, for having marital intercourse in public (Yev. 90b). In many cases, the flogging appears to have been sanctioned as a legal punishment, even though not falling within the categories set out above; for example, where a man and a woman seclude themselves (Kid. 81a), or for taking unreasonable vows (TJ, Suk. 5:2, 55b), or for falling asleep during watch duty in the Temple (Mid. 1:2); but these cases may also be regarded as instances of disciplinary rather than punitive measures, Disciplinary flogging (makkat mardut) was an innovation of the talmudic jurists. While the violation of a negative injunction calls for punishment, the act of violation being a matter of the past, the failure to obey a positive command calls for coercive measures calculated to enforce such obedience. Accordingly, while punitive floggings may (indeed, must) be restricted to a maximum number of blows, disciplinary floggings must be unrestricted – to be continued until the offender performs his duty. The maximum number of 40 lashes applies only where there has been a violation of a negative injunction, but in the case of positive commands, "as when they say to him: build a sukkah – and he refuses, or: take a lulav – and he refuses – he is flogged until his soul departs" (Ket. 86a–b). In the case of payment of a civil debt, which is also a positive command imposed by law, the question arose whether such payment could be enforced by a disciplinary flogging (ibid.); the better opinion appears to be that it could not, at any rate for so long as the debtor had any property attachable in execution proceedings or if he claimed to have no property only when he was attempting to avoid payment (Piskei ha-Rosh, Ket. 9, 13).

Disciplinary floggings were also resorted to where an offender was not liable to punishment for formal reasons, for example for lack of previous warning (Yad, loc. cit., 18:5). It was this innovation of the idea of a disciplinary flogging that enabled the courts, in post-talmudic times, to make use of the penalty of flogging for the maintenance of law and order and for the observance of religion. It is found to have been applied in an unlimited variety of cases and in different modes of execution. The flogging was mostly carried out in public, so as to have a deterrent effect: sometimes in the courthouse (Hai Gaon, comm. to Kel. 22, S.V. safsal), sometimes in the synagogue (Yam shel Shelomoh, BK 8:48, and Resp. Maharshal 28; Resp. Maharam of Lublin 46), and sometimes in the square outside the synagogue or in other public thoroughfares (Resp. Ribash 351). Although because of jurisdictional doubts (see Bet Din), the application of a disciplinary, as opposed to that of punitive, flogging was preferred, the courts did not normally adopt the rule that disciplinary floggings ought not to be restricted, but ordered floggings to be limited to a certain amount of lashes – some holding that the biblical maximum applied a fortiori (Yam shel Shelomo, ibid.), some leaving the extent of the flogging in each individual case to the discretion of the court (Sha'arei Ẓedek 4:7, 39; Halakhot Pesukot min ha-Geonim 89; Sha'arei Teshuvah 181). The argument that such discretionary floggings constituted a much severer punishment for many much lighter offenses than the biblical flogging was countered with the assertion that the execution of the flogging should be so humane as to counterbalance the increased measure of strokes (Resp. Ribash 90). Indeed, it appears that the lashes were not normally inflicted on the bare body, nor with a leather whip, nor on the breast or back, but rather on less vulnerable parts. Following a talmudic dictum that a flogging is to be administered where an offense is reported but not proved (malkin al lo tovah ha-shemuʿah: Kid. 81a), post-talmudic courts introduced the punishment of flogging where an offense was threatened or commenced but not completed (Resp. Maharam of Rothenburg, ed. Prague 383; and cf. Darkhei Moshe, ḤM 421:35 n. 7); but mere suspicion alone was held insufficient to warrant flogging (Halakhot Pesukot min ha-Ge'onim 94), unless substantiated by at least one witness or by common repute (Sha'arei Ẓedek 3:6, 38). In many places, notables were exempt from floggings, and people were normally allowed to pay a fine instead (cf. Yam shel Shelomo, BK 8:49). Corporal punishment was abolished in Israel by the Punishment of Whipping (Abolition) Law 5710 – 1950. See entry *Punishment.

BIBLIOGRAPHY:

S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (1891), 39f. (no. 21), 171f. (nos. 138, 139); S. Assaf, Ha-Onshin Aḥarei Ḥatimat ha-Talmud (1922), 146 (index), S.V. Makkat Mardut and Malkot; Jacob, in: MGWJ, 68 (1924), 276–81; Aptowitzer, in: Ha-Mishpat ha-Ivri, 5 (1935/36), 33–104; S. Katz, Die Strafe im Talmudischen Recht (1936), 63f.; ET, 1 (19513), 136; J.M. Ginzburg, Mishpatim le-Yisrael (1956), 381 (index), S.V. Makkat, Malkot; EM, 4 (1962), 1 160f., S.V. Malkot; M. Elon, Ḥerut ha-Perat be-Darkhei Geviyyat Ḥov ha-Mishpat ha-Ivri (1964), 22–26, 207f. ADD BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), I, 180, 422f., 437f., 496, 499, 504, 558, 567, 579, 649, 692, 705, 720, II, 841; idem, Jewish Law (1994), I, 202, II, 515f., 534, 604, 608, 614, 679, 689f., 713, 803, 854, 870, 888, III, 1029; idem, Jewish Law (Cases and Materials) (1999), 398–404; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefard u-Ẓefon Afrikah (legal digest) (1986) (2), 332–334; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italiyah (legal digest) (1997), 230–231.

[Haim Hermann Cohn]


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