Lesson # 353 (part three) • Jurisdiction of a Beit Din Flogging This lesson concerns itself with matters that many of us have heard about but don’t fully know, the flogging of persons by the Beit Din. This usually results from a transgression against Hashem. In these situations the, objectives of the Beit Din are expiation and deterrence. Accordingly, the remedial power exercised by the Beit Din, public flogging of the violator, stands in sharp contrast to the previous remedies employed in cases involving private litigants. The Mishna states: “Cases involving flogging [are judged] by three.” Flogging refers to the public imposition of 39 lashes, unless it is determined beforehand that the person could not survive that number, in which case a lesser amount divisible by three is given. Rambam in his code, enumerates 207 cases wherein one may be flogged. He introduces this discussion by setting forth several general categories. 1. The following incur the penalty of flogging: one who transgresses a prohibition involving the punishment of excision but not death by the court, as when one eats fat, or blood, or chametz on Pesach; one who transgresses a prohibition carrying with it the penalty of death by divine intervention, as when one eats tevel [grain that has not been properly tithed], or when a kohen while unclean eats of the clean heave offering [t'ruma]; one who transgresses a prohibition involving a tangible action, as when eats meat (cooked) with milk, or wears a garment made of wool and linen, all these are subject to flogging. But a prohibition which does not involve a tangible action, such as tale carrying, revenge taking, grudge bearing, or spreading a false report, does not entail flogging. 2. One who transgresses a prohibition, involving no tangible action, is not punished by flogging save in the following instances: one who takes an oath and does not fulfill it, one who exchanges a beast set aside for a sacrifice, and one who curses by the Name. Any prohibition that is intended as a warning that the violation thereof involves a death sentence by the court, such as the injunction “Thou shall not commit adultery” and “Thou shall not do any manner of work on the Sabbath”, does not carry with it the punishment of flogging; neither is there flogging for a negative command, the breach whereof renders the offender liable to compensation, such as the injunction “Nor shall you rob him:” and “You shall not steal” Nor its there flogging for a prohibition, such as the injunction “You shall not take the dam with the young” and “You shall not wholly reap the corner of your field .”That is unless it becomes impossible to carry out the act enjoined in the positive command. One controversial issue regarding flogging is the threshold question of whether the Beit Din actually has jurisdiction to hear these cases and to decree this penalty. There is the opinion in the Mishna that Rabbi Yishmael holds that the court of 23 judges should have jurisdiction over these cases. However, the Talmud and the subsequent codes hold that the Beit Din of three judges hear cases involving the flogging penalty. The fourth and final jurisdiction of the Beit Din deals with the area of marital law. Slandering the bride (1) where the husband is the accuser and claims that his bride committed adultery between the time of betrothal and the time of marriage. In Jewish law as practiced in Talmudic times, betrothal bound the couple as husband and wife, save for cohabitation and a few other issues, and the marriage took place some time later. (Under current practice, the official betrothal takes place minutes before the marriage as part of the same ceremony.) Should the allegations of the husband be proved (under the appropriate burden of proof in capital cases) then his wife is put to death. Should he fail to prove the allegation of adultery, the husband must pay a penalty of 100 coins to the father of the bride. In addition the husband is further penalized by being forever deprived of the power to summarily divorce her, as he cold have done in ancient practice. (2) where a husband is the plaintiff and he alleges that his wife was not a virgin at the time of marriage. When the husband raises this allegation, the bride may suffer the loss of half of the amount payable to her under the ketuba. The ketuba, generally payable to the wife upon divorce or upon the husband’s death, provides among other things, for the settlement on the wife of a minimum of 200 coins is she is a virgin and 100 coins if she is not a virgin at marriage. The husband’s allegation of nonvirginity is accepted by the court even upon his mere assertion without further evidence, and the wife’s ketuba is reduced by 100 coins. (3) Where the bride’s father is the plaintiff and claims the 100 coins penalty after the husband’s allegation of his bride’s adultery in case (1) has not been proven. Regarding these three situations, the Mishna sets forth two differing opinions as to which court should have jurisdiction. “Cases involving slander by a court of three; so says Rabbi Meir. But the Sages hold that a case of slander requires a court of 23, since it may involve a capital charge. There is much discussion in the Talmud regarding how many judges are required. Rambam in his code states: “A case of slander is judged in the first instance by a Lesser Sanhedrin [23 judges] because it may involve capital punishment if the allegation of the husband is proved, in which case the wife is stoned to death. If the husband is not believed because his witnesses were shown to be perjured witnesses and the father comes to court to collect the penalty from the husband, the father’s case is judged by three judges.” IYH, in the next lesson we shall continue with the jurisdiction of the Beit Din in other marital cases. The subject matter of this lesson is more fully discussed in volume 1 chapter 1 of Jewish Jurisprudence by Emanuel Quint & Neil Hecht. Copies of both volumes can be purchased at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat Lech L'cha Homepage]
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