יג א"ל אמר קרא (דברים כה, ג) ונקלה אחיך לעיניך כי מחית אגבא דחיי מחית אלא הא דתניא אמדוהו לקבל עשרים אין מכין אותו אלא מכות הראויות להשתלש וכמה הן תמני סרי
13 What is requiredis some allusion supporting infliction of stripes upon<i>Zomemim</i>.<span class="x" onmousemove="('comment',' In cases where the law of retaliation cannot be applied, v. Mak. 2b. ');"><sup>10</sup></span> This we find where it iswritten: <i>And they shall justify the righteous, and shall condemn thewicked</i>.<span class="x" onmousemove="('comment',' Deut. XXV, 1. ');"><sup>11</sup></span> Now [assuming that thisrefers to the judges], how, since the judges justify the righteous and condemnthe wicked, does it follow that the wicked man deserves to bebeaten?<span class="x" onmousemove="('comment',' I.e., if so, why this reference to the justification of the righteous? Surely the application of the punishment does not depend on it! V. Rashi on same passage in Mak. 2b. ');"><sup>12</sup></span> — [The text cannot thereforerefer to judges;] rather it must refer to witnesses who have incriminateda righteous man, after whom other witnesses came and <i>justified therighteous</i>, and rehabilitated his [the injured man's] character, and thuscondemned the wicked, that is, established the wickedness of the witnesses, in which case, if the wicked man [the false witness] deserve to be beaten, the judge shall cause him to lie down and be beaten. But why, could not thisbe deduced from the commandment: <i>Thou shalt not bear false witness againstthy neighbour</i>?<span class="x" onmousemove="('comment',' Ex. XX, 16. ');"><sup>13</sup></span> — No! Becausethat is a prohibition involving no material action, and the transgressionof a prohibition involving no material action is not punishable by flogging. IN THE NAME OF R. ISHMAEL IT IS SAID, BY TWENTY-THREE. Whence is this deduced? — Said Abaye: It is derived from the word rasha', which occurs alike inconnection with flogging and with capital punishment. In the one case itis written: If the wicked [guilty] man [ha-rasha'] deserve to bebeaten,<span class="x" onmousemove="('comment',' Deut. XXV, 2. [H] ([H]) ');"><sup>14</sup></span> and in the other, it iswritten, that is guilty, [rasha] ofdeath.<span class="x" onmousemove="('comment',' Num. XXXV, 31. [H] ');"><sup>15</sup></span> Just as in the case of theextreme penalty twenty-three are needed, so in the case of flogging. Rabasays: Flogging is considered a substitute fordeath.<span class="x" onmousemove="('comment',' The sinner in reality deserves the death penalty for trespassing the command of his Creator (Rashi), and a death penalty must be administered by twenty-three. ');"><sup>16</sup></span> R. Aha son of Raba said toR. Ashi: If so, why then the need of medical opinion as to the amount oflashes the condemned can stand? Let him be beaten, and, should he die, well, let him die!<span class="x" onmousemove="('comment',' Since death is his real desert, v. Mak. 22a. ');"><sup>17</sup></span> — R. Ashi answered: Scripture says: <i>Then thy brother should be dishonoured before thineeyes</i>,<span class="x" onmousemove="('comment',' Deut. XXV, 3. ');"><sup>18</sup></span> to indicate that whenthe lashes are applied, they must be applied to the back of a living person.But in this case [how explain what] has been taught: If in their [the medical]opinion he can stand no more than, say, twenty lashes, he is to be givena number of lashes divisible by three; namely, eighteen?<span class="x" onmousemove="('comment',' Tosef. Mak. IV, 12. ');"><sup>19</sup></span>