Punishment of 40 (39) Lashes; 39 Forbidden Type of Shabbat Labor

The Aish Rabbi Replies

The verse you referenced appears to decree forty lashes for certain types of sinners: “Forty shall he strike him, he shall not add.” It is not that clear from the context of that verse which types of sinners are punished in such a way. The Talmud derives that it applies to most minor sins which involve doing an action (as opposed to sins one transgresses through inaction), and for which no other punishment is prescribed (see Talmud Makkos 4a, 13b). To briefly illustrate the two exceptions: (1) If a person vows to do an action within a specific time period and he neglects to do the action, he receives no lashes since he transgressed his vow through his inaction rather than action. (2) A person who steals is not punished with lashes because the Torah stipulates a different punishment for him – that he pays back what he stole (and sometimes pays double).

Although the verse we cited, mentions 40 lashes, the Sages derive from a careful reading of the verse – together with the preceding verse – that the actual number of lashes is 39 (Talmud Makkos 22b). (The basic inference is from the previous verse, which concludes cryptically: “…the judge shall cast him down and strike him … in a number.” The peculiar dangling phrase “in a number” is understood to be connected to the verse which follows it, thus reading: “In a number forty shall he strike him.” This unusual and verbose wording before the word forty is further understood to mean “in a number which leads to 40,” namely 39. (Note that this connotation of the phrase “in a number” is much more semantically implicit in Hebrew than in English.))

This raises an important question: If the intended number of lashes is actually 39, why does the Torah seem to so clearly prescribe 40? Additionally, we need to address your question – what is the significance of 40 in the first place?

We can answer both questions by first understanding the significance of the number forty. As we discussed elsewhere, 40 is a number signifying completion – a full creation or re-creation. Several examples from the Torah and Jewish law illustrate this clearly:
(a) Moses stood on Mount Sinai for 40 days to receive the Torah from God.
(b) According to the Sages, an embryo is formed 40 days after conception. (Note that this is just around when a heartbeat can first be detected.)
(c) According to the Talmud, there are 39 types of labor forbidden on Shabbat. Significantly, the Mishna (Shabbat 7:2) refers to this as “40 less 1.”
(d) When the wicked generation of the Flood became deserving of destruction, God brought rain upon the earth for 40 days.
(e) When after the Exodus the Children of Israel sinned in the desert, God decreed that they remain there for 40 years, until the entire generation died.
(f) Part of the process of purifying a person or utensil from ritual impurity is immersion in a mikveh which contains 40 se’ah of water.

What emerges from these and other examples is that 40 is a number which represents creation – or recreation. When the world was destroyed and refashioned in Noah’s time and when the sinful generation of the Exodus was wiped out and replaced, the number 40 appeared. Likewise, when a person transforms himself from impure to pure or when a baby is first created, the number 40 figures in to the process. Finally, for the world to receive the Torah – and be recreated on an entirely higher state – 40 days was required.

The same is true of the Torah’s punishment of 39 lashes. When a person commits various types of sins, he deserves corporal punishment. Its ultimate purpose is to “recreate” the sinner: His suffering should so to speak destroy his wicked self so that he begins life anew as a better, fully penitent person. Here, however, the idea is more complex. The Torah seems to write that a sinner is whipped 40 times, yet the Sages infer that the real meaning is 39. However, the Sages themselves express the number of lashes as “40 less 1” – just as they do in the laws of Shabbat. Thus, the Sages themselves recognize that 39 is merely a variation of 40 – a number approximating 40 without actually being 40. And the idea is that we must not so to speak whip a person to death, entirely recreating him ourselves. We only bring him close to that point – whipping him a number which leads to 40. He must then repent himself to make his transformation complete. This is why both the Torah and Sages describe the punishment of 39 lashes in terms of the number leading to 40. We must bring him to the recreative energies of 40. But we cannot force him to repent – as repentance can only come from within. Thus, the final step he must take himself.

As noted above, the Sages also describe the 39 types of forbidden Shabbat labor as “40 less 1.” The explanation is related. The types of labor forbidden on Shabbat are creative acts – mimicking God’s original creation of the universe. Just as God “rested” on the seventh day from creating the world, so too we rest every Shabbat from doing creative acts (see here). Forty is thus naturally the number which expresses the laws of Shabbat: We may not create, and 40 is the number of creation. However, since man cannot possibly truly create in the manner of God, our acts only approximate God’s creation. Thus, our acts of creation are only 39 – leading to 40 but not actually 40.