The Ramban (Devarim 25:3, citing the Midrash Tanchuma Bamidbar 23) offers two reasons why the Torah calls specifically for the administration of 40 lashes—malkot arbaim, for violating certain sins. First, he broke the Torah, which Hashem gave after Moshe Rabbeinu spent 40 days in Shamayim.
Second, since he “brought death upon himself that was created in 40 days.” He shall endure malkot, which substitutes for the death penalty he deserves.” The second explanation emerges from the Gemara (Sanhedrin 10a), which states that malkot replaces the death penalty (“malkot bimkom mitah omedet”).
The Ramban’s second explanation also parallels Rashi (Breishit 6:4 s.v. Arbaim Yom; citing Bereishit Rabbah 32:5), stating that the mabul’s rain of 40 days and 40 nights corresponds to the 40 days it takes for the fetus to attain a human form. The Dor Hamabul created mamzeirim (illegitimate children), needlessly “bothering” Hashem to spend 40 days forming the fetus.
These explanations explain why the Chumash mentions 40 lashes when the Gemara (Makkot 22a) teaches that we only administer 39. The Rosh (Piskei HaRosh at the end of Pesachim) argues that this is an example of the Torah speaking in round numbers. Based on Ramban, we add that the Torah uses the round number to allude to the 40 days at Matan Torah and the 40 days of the fetus.
A New Approach: 40 Signifies Rebirth
We suggest an alternative approach based on an analysis of why Yonah warned the people of Nineveh (Yonah 3:8) that Nineveh would be nehepachet (destroyed or overturned) in 40 days. Why is number 40 chosen as the time for the people of Nineveh to perform teshuvah? One may answer that it evokes thoughts of the 40 days of destruction during the time of the mabul and the 40 years in the midbar, when the older generation was eliminated. Thus, the number 40 is associated with destruction and elimination.
We may add to this the idea expressed by Rav Zvi Grumet in his work, “Genesis” (Jerusalem: Maggid Books, 2017, 86-87) that the number 40 in Torah literature expresses an opportunity for rebirth:
“In biblical and rabbinic literature, 40 represents birth or rebirth. In the Bible, Moses is on the mountain for 40 days and emerges as a man reborn with a radiant face. The spies enter the land as princes and, 40 days later, return with the self-image of grasshoppers. The Israelite nation spends 40 years in the desert and is transformed from a fractured nation of refugees into a unified nation of conquerors … In rabbinic literature, there are 40 minus one categories of prohibited (creative) work on Shabbat, a child is considered ‘alive’ in the womb after 40 days, and pregnancy lasts for 40 weeks.”
We may add that grape juice ferments into wine 40 days after squeezing it from the grape (Eduyot 6:1). Accordingly, the number 40 conveys a similar message as the word “nehepachet.” It can refer to “utter destruction” or “rebirth.” The people of Nineveh and every Jew on Yom Kippur are faced with the same stark choice as to which path we will choose—falling into the abyss or redeeming ourselves and restarting our lives.
A New Reason for 40 Malkot
Malkot are also “40 minus one” (in the mishna’s language) as they should spur the emergence of a new personality after the traumatic experience. A mikveh must contain a minimum of 40 seah—signifying that the mikveh experience should be seen as a “rebirth” (most appropriate before a couple tries to create a child). We suggest that this message is inherent in administering 40 malkot.
In light of seeing malkot as “a summons to rebirth,” we understand Rashi (to Devarim 25:3 s.v. Veniklah Achica), noting that the Torah refers to the flogged individual as “achicha—our brother.” Rashi explains that once he is hit, he is a brother. Therefore, we view the sinner as our brother since he is reborn after the malkot. Moreover, malkot exempts someone from the punishment of karet (Mishna, Makkot 3:15). Since he is a new person, his new personality does not deserve this severe heavenly punishment.
Conclusion: Malkot as a Rebirth
We can take this idea one step further. Malkot—according to the Gemara and Ramban—is a sort of death experience, as we noted. After emerging from malkot, the person is seen as new since he has emerged from a death experience.
Hashem does not intend for malkot to humiliate the flogged person. Rather, the idea is to give him a new lease on life. He begins anew with a fresh slate. He has been rehabilitated to the point of being regarded as an Ach, a brother in our Torah observance. Hopefully, he will take advantage of this golden opportunity.
Postscript: An Aliyah After Harchakot D’Rabbeinu Tam
Rav Mordechai Willig told me he once administered harchakot d’Rabbeinu Tam (social sanctions such as denying entrance to the synagogue) on a husband who unjustly withheld a get from his wife. After the gentleman relented and gave his wife a get, Rav Willig welcomed him to the shul and even gave him an aliyah.
This practice accords with Rashi. Once the punishment has been administered and he has improved, the sinner emerges as a new person. The shame he deserved in the past is no longer relevant since he is a new person.
Rabbi Jachter serves as the rav of Congregation Shaarei Orah, rebbe at Torah Academy of Bergen County and a get administrator with the Beth Din of Elizabeth. Rabbi Jachter’s 18 books may be purchased at Amazon and Judaica House.
