Deuteronomy 1:16 –And I commanded your judges at that time, saying, “Hear [disputes] between your brothers and judge justly between a man and his brother, and between his litigant.”
Sanhedrin 7b: Rabbi Yochanan said that [the command referred to here in the verse] was a [corresponding] warning to judges to be careful [zealous] regarding the stick and the strap
Torah Temimah Colloquial Translation on Note #11:
It says in the book Chiddushei Aggadot that the reason why [Moshe needed to give a special command to the judges regarding punishing people with a stick [or lashes] was because in that generation [of the desert], the Jews then were more stubborn and prone to arguments and quarrels. This is consistent with the verse that mentions Moshe complaining to God (Devarim 1:12) “how can I alone carry their burden, their load and their quarrels”. For this reason the judges at that time were reminded about the corporal punishments with a stick or a strap.
This explanation doesn’t make any sense at all. Behold Moshe commanded many mitzvot at that time. Also the idea that specifically for this reason were the judges commanded then about the stick and the strap also makes no sense. The punishment of corporal punishment was not for just that generation but also for later generations. Also, that is the way of the world, that all court systems include punishments. Additionally, what does the Gemora mean to say when it adds that the judge needs to be extra careful or zealous regarding the stick and the strap? Wouldn’t it have been sufficient to just state that among the tools of a judge are a stick or a strap or a shofar or a sandal (as it is alluded to in the beginning of Parshat Mishpatim). Also, why is there no special care needed for the shofar or the sandal? Lastly, how is the word “corresponding to” appropriate here?
Rather the truth appears that the explanation is in line with that which it says in Psikta Rabbati, Chapter 33. Rabbi Shabbtai says “a judge must be according to the stick or according to the strap or according to whatever punishment he uses. The judge must not be suspect in any way while using a big stick or a big strap.”
The explanation of this is that the judge must not use corporal punishment to rule over others for his own gains. Additionally, it is forbidden for the judge to use a corporal punishment that is beyond the endurance of the convicted person. This is also mentioned in Midrash Rabbah Devarim Chapter 5 as follows “The actions must correspond to the stick and the staff, it must not be that it is the judge who has the need to hit.” In other words, when more lashes than are appropriate are meted out, or if the strap or stick is larger than it should be, then it is the judge, himself, who becomes liable for the punishments.
This idea is also mentioned in the Sifri on Parshat Ki Tetzei on the verse “forty lashes, not more”. [if the verse already mentions “forty” why does it also need to say “not more”?] It is explained there that there are two types of “overdoing” on the punishment. One type is on the number of lashes, and not going beyond thirty nine. The other type of “overdoing” is that if the judge sees that the person can only endure a given lesser number (such as ten) then it is forbidden to give more lashes than that lesser number. This type of extra caution and discernment by the judge is what required the extra degree of warning [mentioned in the Gemora].
Editor’s Note: One who is judging others needs to first measure himself and be sure that he is not meting out punishment for his own needs.