Amongst the myriad of mitzvos outlined in this week’s parshas, Parshas Ki Seitzei, we are commanded regarding the punishment of lashes.  The Torah tells us: When there will be a dispute between people, and they have recourse to judgement, and they judge them, and they vindicate the righteous one and find the wicked one guilty; It will be that if the wicked one ought to be beaten, the judge shall cast him down; and he shall strike him, before him, according to his wickedness, by a count; אַרְבָּעִים יַכֶּנּוּ, לֹא יֹסִיף: פֶּן-יֹסִיף לְהַכֹּתוֹ עַל-אֵלֶּה מַכָּה רַבָּה, וְנִקְלָה אָחִיךָ לְעֵינֶיךָ - Forty shall he strike him, he shall not add; lest he continue to strike him many blows beyond these, and your brother will be degraded in your eyes (Devarim 25:1-3).  

It is interesting that in the final verse, the sinner is called ‘your brother,’ but prior to this, he has been called ‘the wicked one.’  Why now, after he has received the lashes, is he called אָחִיךָ, your brother?  Rashi teaches: כָּל הַיּוֹם קוֹרְאוֹ רָשָׁע, וּמִשֶּׁלָּקָה קְרָאוֹ אָחִיךָ, Up to the time of the flogging, he is called ‘wicked one,’ but once he has been flogged, the Torah calls him ‘your brother.’  

From here we learn that although the beis din may rule that a Jew is deserving of punishment for his sins, and at that moment he is termed a rasha (a wicked person), once the punishment has been carried out, we must see him, once again, as our brother.  For all of Israel are brothers, and all of Israel - at times - are sinners.  Hence, we cannot judge him more stringently than the Torah judges him.  Once he has received his punishment, and G-d has forgiven him, we too must do the same.

As for the number of lashes, while the verse tells us to strike him forty times, the Sages differ.  Rashi (to v.2, בְּמִסְפָּֽר) notes (quoting Makkos 22b) that the number of lashes is a number close to forty, but not forty itself.  Hence, the wicked person receives thirty-nine lashes.  

In his Parsha Parables, R’ Mordechai Kamenetzky relates the following powerful insight, in the name of R’ Yechiel Meir Halstock, the Rebbe of Ostrovtze (d.1928, Poland).  

The Rebbe would quote the Gemara in Makkos where the power of the sages is derived from a pasuk in our parsha: “How foolish are those people who stand for the Sefer Torah but do not stand for the Rav.  Aren’t the rabbis more powerful than the Torah itself?  The Torah tell us that there are forty lashes to be meted out in case of a serious transgression, yet the sages interpret the verse so as to mete out one less than forty, for a total of thirty-nine.  

“The Gemara thus deduces that the rabbis have more power than the Torah, so they deserve at least as much - if not more - respect than a simple scroll.”

However, the Rebbe continued, pointing out a particular question regarding this teaching.  “There are quite a number of occasions where the sages reinterpret the Torah’s text.  They tell us to wear tefillin above our hairline, not between our eyes, as the Torah seems to command.  And the other tefillin is placed on our arm not our hand, although a strict textual reading would have us do so.

“In fact, there is even an instance quite similar to the case of the counting of the lashes!  The Torah tells us to count fifty days of Omer before celebrating the holiday of Shavuos.  Yet the sages reinterpret the number and tell us to count forty-nine.  Why is that example not cited to show the power of the sages?  Is the ability to make a holiday one day earlier not sufficiently powerful attestation of the sages’ strength, wisdom, and greatness?” (Parsha Parables, Devarim, p.670)

In fact, the command to count fifty days of Omer is found much earlier in the Torah, back in the book of Vayikra (23:16), before the Israelites ever left Har Sinai, and began their journey to the Promised Land.  The mitzvah concerning the flogging is given in year forty of their desert wanderings.  Why did the Sages wait till this mitzvah to tell us how great the rabbis are, in understanding that forty (lashes) really means thirty-nine.  Why would we not learn about the greatness of the rabbis, and Torah She’baal Peh (the Oral Law), from the teachings of the rabbis to count forty-nine days (of Omer) instead of fifty, a law that was given (ironically) forty years earlier?!

The Ostrovtze Rebbe answered as follows: The power of the sages was not just in refining a seemingly literal translation.  Their greatness lay in an ability to read the Torah that says to give forty lashes and through myriad proofs and deductions mete out one less lash.  What is more, the greatness of the sages stems not just from the power of deductive reasoning, computations and mathematics, but from the power to make a punishment one lash lighter for a sinner.  

Because “the greatness of a Torah leader is not to find more burdens for his followers, but to look for a way to lighten the existing ones.  That is a great man” (Parsha Parables, Devarim, p.671).

To deduce from the command to count fifty days that we count forty-nine days of Omer reveals the analytic greatness of the sages in their understanding of Torah.  But their true greatness is revealed in their deduction that forty lashes actually means thirty-nine.  For the greatness of our leaders is the compassion and concern they show their flock in alleviating and lessening their burdens, pain and suffering.  That is greatness!

Even when he was too weak (due to his debilitating Parkinson’s Disease) to recite Tehillim, Rav Nosson Tzvi Finkel zt’l (1943-2011), Rosh Yeshiva Yeshivas Mir Yerushalayim, still had the capacity to offer solace to petitioners and visitors who came to seek his support and blessing.  “In his last year, someone came to unburden himself.  A difficult health issue was affecting someone in his family, and it was becoming too much for him to bear.  R’ Nosson Tzvi was laying on the couch, thoroughly drained.  After hearing the man’s story, he said, ‘I don’t have the koach (energy) to do anything - not even daven.  All I can do now is cry.’  R’ Nosson Tzvi then instructed the person to bring a Tehillim.  The person sat next to R’ Nosson Tzvi and began to recite Tehillim, while R’ Nosson Tzvi lay there and cried” (Rav Nosson Tzvi, Artscroll, p.318).  

May we emulate the greatness of the sages, as we strive to lessen the burdens of our brothers, in any way that we can.  

בברכת בשורות טובות ושבת שלום