7-5769: Mitzvah N-43

Talmidav Shel Aharon
7-5769: Mitzvah N-43
December 15, 2008

Negative Mitzvah 43 – This is a negative commandment: Do not strike another Jew.

Hafetz Hayim: This prohibition is derived from the verse, “Forty lashes he may give him; he may not add more.” (Deut. 25:3) For this is an injunction to strike no man whatever in Jewry: it is a kal va-chomer, an inference by reasoning from the less to the more: When someone has become punishable by whiplashes, so that the Torah has given permission to strike him, Scripture commands to add nothing to the flogging when he is beaten. How much more certainly must this apply to other human beings.
If someone strikes his fellow-man entailing damages of less than a p’rutah,[the smallest coin] he should receive whiplashes. But if the damages amount to more than a p’rutah, [which means that he struck him a major blow for which he becomes obligated for damages of a p’rutah or more], since he becomes duty-bound to pay money he receives no flogging (but he does violate the prohibition). Even if a person only raises his hand against his fellow-man, he is called wicked. However, if someone delivers a blow in the course of discipline and education, he commits no transgression.

Before we begin to examine this law, we need to cover some background information. Kal va-chomer is an accepted way to analyze a Torah text. It is one of the 13 approved methods that Rabbi Ishmael listed at the beginning of the Sifra, one of the earliest of the legal explanations of the book of Leviticus. It says that if something is forbidden or permitted in an extreme case, then the rule applies “all the more so” in a lesser case. Here we have a law that is careful to regulate the number of lashes a person is to receive when convicted of a crime. There can be up to 40 lashes, and no more. The Sages were so concerned about going over this limit that they further extended it to require no more than 39 lashes lest someone miscount and a great sin occur. The kal va-chomer states that if in the case of lashes one is forbidden to go even one over the limit, “all the more so” in the case at hand where someone, outside of the legal system, would strike another human being.
When one is convicted of striking another human being, he becomes liable to pay for damages. These include the costs of healing, loss of wages, damages and embarrassment. These monetary payments are in the place of the flogging. A person who pays damages does not have the double punishment of the flogging. However, if the damages are so small, smaller than the smallest coin, then he does not have to pay but is subject to flogging. If he raises his fist in a threatening manner, he is not guilty of striking his fellow man but the threat is enough to label such a man as “wicked”.
There seem to be two exceptions to this law that need to be addressed. First is the fact that, according to the Hafetz Hayyim, the law only applies to striking a Jew. I can give him the benefit of the doubt here and say that in many places the laws for Jews and non-Jews were already stacked against the Jews. Striking a non-Jew could lead to prison for the offender and a pogrom for the community. Sadly, there are Jews today who take these kind of laws very literally and declare that the non-Jews are less than Jews and it is permitted to lie, cheat or strike a non-Jew. I hold that another Jewish law, that there is one law for the citizen and non citizen alike, means that we treat all people equally under the law. I am sure that there are halachic experts out there who could show me that I am wrong; I maintain that even if all other reasons in the world were presented that we are permitted to treat others differently than our own people, I would fall back and maintain that we should not treat others differently “mipnay darkay shalom” “for the sake of peace with our neighbors.” There are just some things that may be permitted but we do not make the world a better place if we hold by them. This is one of those cases.
There is an exemption in this law for striking a child as an act of discipline, or for educative purposes. My wife, the educator, tells me that there is no authority in education today that holds that a child will learn any better if they are struck by their teachers. My understanding is that it only teaches a child that one can strike another if they are bigger. I see no reason to strike a child in the name of education. One who does so should fall under the punishments of this law as stated above. A parent disciplining a child is a more difficult area. I wish I could say that one should never strike a child or even raise a hand to a child, but there are very rare exceptions that would make a blanket prohibition hard to make. I can say, however, that there is no reason that striking a child should leave any damage at all. A slap on the hand with an open hand may be appropriate once or twice in the lifetime of a child, but if the strike should leave a bruise, scar, or any damage whatsoever, it is clearly child abuse and the parent needs to step back and assess the management of their anger. Even hitting a child with mean words that strike at a child’s self esteem can be a form of abuse to the young mind. A child in need of punishment needs to understand the consequences of his or her action, and not that physical punishment is to be expected. It only teaches a child to do the action when the punisher is not around. A parent needs to be very careful in punishing a child by striking him or her. If the strike leaves any kind of damage, the parent would fall under the prohibitions of this law.