Thursday, September 8, 2011






If the wicked man happened to deserve to be flogged, the judge shall cause him to lie down and be flogged in his presence, according to the measure of his wickedness, by number.  Forty lashes may he give him. He shall not exceed [the forty lashes], lest, should he exceed [that maximum] and [continue to] beat him with many lashes, your brother be dishonored [ve-niklah achikha] before your eyes. (Deut. 25:2-3).

The notion of corporal punishment is abhorrent to the contemporary Western mindset. It is considered barbaric, abusive behavior.  If the victims are minors, such punishment provides grounds for the intervention of the Department of Children’s Services and the removal of the abused children from the custody of the punitive parents or guardians.  Striking a senior citizen is defined as elder abuse, and also has serious consequences.  In the United States, where a person is presumed innocent until proven guilty, physical abuse is the exception to this rule.  People who are merely suspected of child or elder abuse are presumed guilty until proven innocent, even on hearsay reporting.  This special provision of the justice system is a striking reflection of the negatively charged Western view of corporal punishment. 
But this was not always the case.  I grew up on the adage “spare the rod and spoil the child.”  My high school experience in South Africa was punctuated with canings. I sometimes received as many as six lashes for relatively minor infractions.  Many cultures still embrace corporal punishment as an effective deterrent.  Sharia law judges often impose sentences of as many as a hundred lashes, and worse.  This is the background against which our text should be considered.
The Torah allowed judicial discretion in ordering corporal punishment, but imposed an upper limit of forty lashes.  This was in order to preserve the dignity of the offender: He shall not exceed [the forty lashes] lest, should he exceed [that maximum] and [continue to] beat him with many lashes, your brother be dishonored [ve-niklah achikha] before your eyes. (Deut. 25:3).
The term ve-niklah achikha is to be understood as “lest your brother be diminished.”  The offender is horribly diminished by the loss of bladder or sphincter control as a result of the agony of the beating.  The Torah emphasizes that even a person who is guilty of a serious offense is not to be deprived of his dignity as a human being.  If a lesser number of strokes were likely to have the same humiliating effect, the lashing would be instantly aborted.   The Torah ruling on the limits of lashing stands in sharp contrast to the ubiquity of the massively abusive and humiliating corporal punishment that is still widely practiced.
The Sages derive a further lesson from our text.  The maximum number of lashes was reduced from forty to thirty-nine by rabbinic ordinance.   This reduction is a “fence” around the Torah law, decreasing the chances that the biblical forty lashes would be exceeded.  It is also an expression of the humanity of the Sages and contrasts with their usual diligence in abiding by the letter of the Torah law in the judicial process. 
But there is a further, no less important message in the rabbinic reduction of the maximum number of lashes:  How stupid some people are!  They rise before a Torah scroll but not before a great person [gavra rabbah].  In the Torah scroll it is written “he shall strike him forty times.”  However, our Rabbis decreased [the forty] by one. (BT Makkot 22).
At first blush this Talmudic statement seems self-serving, implying that rabbis have higher ethical standards than the Torah itself—a “shout out” by rabbis for rabbis.  However such an impression would be completely out of character.  The Sages abhorred self-aggrandizement.  Rabbi Tzadok used to say:” And do not make the Torah a crown with which to aggrandize yourself nor a spade with which to dig.  Thus did Hillel declare:  one who makes use of the royal robes [of the Torah luminary] will perish.  From this you learn that whoever derives personal benefit from his interpretations of the Torah deserves to die. (Avot 4:7).
Rabbi Benzion Zaks points out that the Talmudic dictum in tractate Makkot that I cited refers to the individual who reduced the number of lashes as a Great Person  [Gavra Rabbah] and not as “Rabbi” or “Rav”.  The message is clear.  Who is a Gavra Rabbah? Not necessarily a distinguished scholar, but one who reduced suffering.  What is Jewish greatness?  Sensitivity and kindness. Greatness is measured by generosity of spirit rather than by mere intellectual prowess.
This Talmudic notion of greatness is paradoxical.  It contrasts with the universal definition. Greatness commonly connotes power, control and conquest. Alexander was called “the Great” on account of his power, control and conquests.  Julius Caesar and Napoleon also exemplified these traits.  However, for the Sages greatness is characterized by love, not power, caring rather than control, support instead of suppression, sensitivity, not superiority, humaneness rather than hubris. 

The virtue of love underlies each of these characteristics of the Gavra Rabbah.  But loving inevitably involves vulnerability.  In our context, sensitivity to the dignity of criminals undermines the effectiveness of punishment as a deterrent, and may render society vulnerable to continued criminal behavior.  Significantly, seventy-five percent of those who were arrested for looting and mayhem during the recent riots in Britain had prior criminal records.  According to the police, their punishment for previous offenses had been insufficiently heavy to deter them from further criminal activity.  Individuals with antisocial inclinations often exploit the kindness of well-meaning judges. Loving always leaves us vulnerable.   
The vulnerability of those who love and care is the theme of another mitzvah in our Torah portion:  if a bird’s nest happens to be before you in your path, on any tree, or on the ground, with young ones or eggs, and the mother bird is sitting upon the young or upon the eggs, you shall not take the mother with the chicks.  You shall surely drive the mother away and take the young for yourself, so that it is well with you and you prolong your days. (Deut. 6-7).
This text is commonly understood as an imperative to kindness, mercy and sensitivity to the feelings of a mother who cannot bear to witness the loss of her young.  Rabbi Zaks suggests that it teaches an additional lesson. Have you ever tried to catch a bird with your bare hands?  It is well nigh impossible. However, when the mother bird is protecting her offspring, she is easily trapped.  Her love for her chicks makes her vulnerable to capture.  Accordingly, the Torah forbids the exploitation of the vulnerable mother. 
This prohibition extends beyond concern for the feelings of the mother bird. It applies to many other aspects of the human experience. Consider the dynamics governing the relationship between members of a religious cult and their charismatic leader. The members are usually extremely vulnerable, insecure and anxious. The leader manipulates their vulnerability to satisfy his toxic and delusional ego needs. He promises them love, safety, and the intoxicating experience of personal importance. Their devotion to him and unconditional love for him lead them to renounce family, friends, and values, following him blindly—sometimes even to their death. 
Patients I have visited in the hospital have often described their encounters with missionaries. They were dealing with the news of their diagnoses and their possibly poor prognoses. Facing their own mortality, these patients have been disoriented by the hospital environment and fearful of the future. Enter the pastor. He manipulates their fear and promises them endless love and serenity if they commit to a new faith, and eternal damnation if they don’t.
Most examples of the exploitation of vulnerable love are less dramatic.  Individuals in unsatisfying relationships, who complain about being taken for granted and sometimes mistreated by their spouses, have often consulted me.  When I ask what has kept them in the relationship, I am told that it is the great love they have for their spouses.  I often discover that they have brought heavy personal psychological baggage into the relationship, having suffered neglect or abuse in their youth.  They had finally met someone who “loved” them in spite of their baggage, and who promised them support and validation. This love however was manipulative and self-serving.  My patients had become an extension of their spouses’ own ego needs, gradually losing all sense of their separate identity.  Their unconscious realization of what was happening had brought them to my office.  They had somehow sensed that their vulnerable, dependent love had been either deliberately or unintentially exploited. 
The mitzvah of sending the mother bird away prohibits the exploitation of the vulnerability of those whose loving and caring behaviors are admirable. The mitzvah relating to corporal punishment exemplifies the need to respect the vulnerability even of those whose behavior is repugnant to us. Only that individual who is sensitive to the vulnerability of others is worthy of the designation Gavra Rabbah. That is Jewish greatness.

1 comment:

  1. I have a question regarding the soul. Does a jewish person have a different soul than a non jewish person?