Halakhah sobre Makkot 3:19

As mentioned, the Mishnah (Makkot 3:6) states that one receives malkot only if he both inserts the dye and scratches the skin. The Rivan (ad. loc. s.v. Kitovet) describes the process of kitovet ka’aka as specifically following that order – first writing and then making a tear in the skin. The Rambam (Hilchot Avodat Kochavim 12:11), on the other hand, describes kitovet ka’aka as first tearing the skin and subsequently inserting the dye. Might the status of cosmetic tattooing, in which a cut is made before dye is inserted, hinge on this dispute between the Rambam and the Rivan?

The Mishnah (Makkot 3:6) records the opinion of Rabi Shimon that one is flogged for violating the prohibition of kitovet ka’aka only if he tattoos the name of an idol onto his skin. The Chachamim, however, require flogging for any tattoo. The Rishonim disagree about which opinion is regarded as normative. While we usually accept the majority opinion, the Gemara (ibid.) records a discussion of the opinion of Rabi Shimon, leading some Rishonim to conclude that his opinion is the accepted one. ⁸For a summary of the opinions, see the Otzar Meforshei Hatalmud, Makkot p. 847 note 20. The Beit Yosef (Y.D. 180 s.v. Shechayav) quotes Rabbeinu Yerucham, who cites conflicting opinions and concludes that the Halachah follows the view of the Chachamim. The Beit Yosef agrees, noting that this also appears to be the opinion of the Rambam.

Precisely how does one violate the prohibition of kitovet ka’aka – by actually inscribing the tattoo, or even by having it inscribed on his body? Which does the Torah intend when it commands (Vayikra 19:28), “Uchtovet ka’aka lo titenu bachem,” “You shall not put a tattoo on yourselves?” The Tosefta (Makkot 3:9) states that both aspects are included – both one who inscribes a tattoo and one who allows a tattoo to be made on his body violate the biblical prohibition.

One example of this is the procedure delineated by the Mishnah (Makkot 3:11) for administering malkot (lashes), which relies upon a doctor’s evaluation of how many lashes the offender can sustain. It seems from this Mishnah that we will rely upon a doctor’s counsel if poskim determine that it is based on a solid foundation of evidence. Rav Yonatan Adler thus concludes (Techumin 24:504) that each specific claim of archaeologists should be evaluated by poskim to determine whether it should be dismissed as conjecture, regarded as possibly correct, or accepted as certain or almost certain truth.²⁹See our earlier discussion regarding the admissibility of blood tests and DNA evidence in beit din for other examples of how poskim display varying levels of acceptance of scientific claims. Cooperation between poskim and observant archaeologists would be most helpful in reaching appropriate conclusions about such matters.

To not destroy the corner of the beard: To not destroy the corner of the beard, as it is stated (Leviticus 19:27), "and you shall not destroy the corner of your beard." And there are five corners to the beard, and there is a [separate] liability for lashes for each one, even if he removed them all at once and with one warning. And these are them: the upper and lower jaw on the right; the upper and lower on the left - behold, that is four - and the chin of the beard, and that is the place of connection of the jaws below, which is called menton in the vernacular - behold, that is five. And the language of the Mishnah (Mishnah Makkot 3:5) is "For the beard, five: two from here and two from there and one at their bottom." And the transcriber wrote in the name of Rambam, may his memory be blessed, (on Sefer HaMitzvot LaRambam, Mitzvot Lo Taase 44), "And the prevention came about this with these words, 'and you shall not destroy the corner of your beard,' and it did not say, 'and you shall not destroy your beard' - even though it is all called the beard. It wanted to say with this that you should not shave even one corner from the whole of the beard. And we administer one [set of] lashes for each one. And even if he shaved all of them at one time, he is liable five [sets of] lashes for it."

From the laws of the commandment is that which they, may their memory be blessed, said in the chapter mentioned (Mishnah Makkot 3:12-14), "How do they lash him? His two hands are bound on each side of the column and the administrator grabs his clothes. If they are torn, they are torn (so be it), and if they become unstitched, they become unstitched, until his heart (chest) is uncovered. And a stone is placed behind him and the administrator stands on it. And a strap of calfskin is in his hand, doubled over once into two [straps] and a second time into four [straps] and there are two [other] straps going up and down with it. The [strap's] handle is a hand-breadth [long] and [the strap] is a hand-breadth wide and its tip reaches to the mouth (beginning) of his stomach. And he lashes him one third [of the lashes] on his front and two thirds on his back [...] The reader would read, 'If you do not guard to do [...] And the Lord will increase your beatings, etc.' (Deuteronomy 28:58-59)." And the rest of its details are elucidated in the mentioned chapter of Tractate Makkot (see Mishneh Torah, The Sanhedrin and the Penalties within their Jurisdiction 6)