The first and second verses should be read as one sentence, of which the protasis is in Deuteronomy 25:1 and the apodosis in Deuteronomy 25:2, thus: If there be a strife between men, and they come to judgment, and they (i.
e. the judges) give judgment on them, and justify the righteous, and condemn the wicked, then it shall be, if the wicked deserve to be beaten (literally, be the son of blows), that the judge, etc. It is assumed that the judges shall pronounce just judgment, and apportion to the guilty party his due punishment; and then it is prescribed how that is to be inflicted.
In the presence of the judge the man was to be cast down, and the adjudged number of blows were to be given him, not, however, exceeding forty, lest the man should be rendered contemptible in the eyes of the people, as if he were a mere slave or brute.
This punishment was usually inflicted with a stick (Exodus 21:10; 2 Samuel 7:14, etc.), as is still the case among the Arabs and Egyptians; sometimes also with thorns ( 8:7, 8:16); sometimes with whips and scorpions, i.
e. scourges of cord or leather armed with sharp points or hard knots (1 Kings 12:11, 1 Kings 12:14). Though the culprit was laid on the ground, it does not appear that the bastinado was used among the Jews as it is now among the Arabs; the back and shoulders were the parts of the body on which the blows fell (Proverbs 10:13; Proverbs 19:29; Proverbs 26:3; Isaiah 1:6).
According to his fault, by a certain number; literally, according to the requirement of his crime in number; i.e. according as his crime deserved. The number was fixed at forty, probably because of the symbolical significance of that number as a measure of completeness.
The rabbins fixed the number at thirty-nine, apparently in order that the danger of exceeding the number prescribed by the Law should be diminished (cf. 2 Corinthians 11:24); but another reason is assigned by Maimonides, viz.
that, as the instrument of punishment was a scourge with three tails, each stroke counted for three, and thus they could not give forty, but only thirty-nine, unless they exceeded the forty (Maimon; 'In Sanhedrin,' 17.
2).