Shalom, Harvey! You want to know why the Torah does not say exactly what it means. Indeed, the words of the Torah sometimes seem positively misleading, as in the case of our Sugya, "Arba'im Yakenu" (where the Torah prescribes 40 lashes while the Mishnah tells us that we only give 39).

(a) You must know that the Torah is not a Kitzur Shulchan Aruch. It cannot be read or interpreted as an independent entity, without the Torah she'Be'al Peh. This is what Hillel meant to teach the would-be Ger in Shabbos 31a. (As you remember, Hillel prevailed upon the Ger to accept the Oral Torah by first teaching him the Aleph-Beis in the correct order and then, on the following day, reversing the order. When the Ger queried him about it, Hillel replied that he wanted to demonstrate that even with regard to the Written Torah, the Ger had no choice but to rely on others for its accurate reading. If so, why should he not rely on the Oral Torah's interpretation of the Written Torah as well?) Thus, it is quite impossible for us to establish the Mitzvos without the assistance and the directions of the Torah she'Be'al Peh.

This point is made forcefully by the Midrash on Shir ha'Shirim 1:2 (on the verse Ki Tovim Dodecha mi'Yayin). The Midrash explains that "wine" refers to the written Torah (see the explanation for this in Torah Temimah, note #21). Dodecho (your display of love) represents the Torah she'Be'al Peh. The verse is saying that the latter are superior to the former. The Gemara makes a similar point in Avodah Zarah 35a, where the same verse is interpreted as "Hash-m relishes the words of the Rabbis (Divrei Sofrim) even more than the 'wine' of the Torah itself."

(b) Nonetheless, Chazal always endeavor to justify the interpretations of Torah she'Be'al Peh and reconcile them with Torah she'Bichsav either by way of Asmachta, the rules of Dikduk, or some similar cogent determining factor. Thus, in the case of the 39 lashes, they connected the last words of the previous verse (Devarim 25:2), "Kedei Rish'aso b'Mispar," with the word "Arba'im." The verse now reads that he should be lashed according to his wickedness by the number leading up to 40. Here, too, see the note in Torah Teminah (#19) for a beautiful and logical explanation of why this must be the true reading of the verse.

(c) The reason that the Torah operates in this way could be for a number of reasons.

1. Firstly, through this method, Chazal can derive a number of distinct Halachos from the brief rendition of the Torah she'Bichsav. Chazal interpret the verse through the 13 Midos of Tana d'Vei Rebbi Yishmael and by proximity, juxtaposition, choice of words, Chaser v'Yeser, Vav Lerabos and all the other multifarious methodologies of Torah exegesis. To take just one minor example, see how many Halachos are derived from the verse in Kedoshim of "Lo Sochlu Al ha'Dam" (see Sanhedrin 63a).

2. A second reason may be to ensure that we take an ethical perspective. In the case of the 39 lashes, the number 40 that the Torah uses connotes the entire essence of the Torah, which this sinner has wantonly desecrated. (The number 40 represents Torah because it was given in 40 days and 40 nights. In addition, the Mishnah begins and ends with the letter Mem, which has a numerical value of 40; Moshe, Hillel, Rebbi Yochanan ben Zakai and Rebbi Akiva all lived 3 times 40 years according to Sifri Devarim 34:7. From numerous sources it is clear that 40 represents Sheleimus ha'Torah.)

A similar point may be made about the issue of "Ayin Tachas Ayin" (lex talionis), which Chazal re-interpret conclusively as referring to monetary compensation. Perhaps the Torah wishes to teach that although in practice only money can be taken as compensation, nonetheless, ethically the perpetrator deserves much more serious treatment.

3. Thirdly, the Torah wants it to be clear that the final arbiters of Pesak Halachah are Chazal. Thus we find in Bava Metzia 59b, in the famous debate over Tanur Shel Achna'i, Rebbe Yehoshua exclaims, "Lo ba'Shamayim Hi!", and Hash-m smiles in approval and says, "My children have beaten me, My children have beaten me!" Some explain the duplication of this expression to emphasize its comprehensivity; it is referring to both Torah she'Bichsav and she'Be'al Peh.

This, too, is the intention of Rava in Makos 22b when he says, "How foolish are the majority of people who stand up for a Sefer Torah, but not for a big Talmid Chacham! The Torah provided for 40 (lashes) and the Rabbanim reduced it by one." See also the words of the Ran in Kidushin 33b (who reconciles an apparent contradiction between the Gemara here and in Kidushin). Interpreting the above-quoted Gemara, the Ran makes the important observation that "had it not been for [the interpretations of] the Rabanan, the Torah would be left closed and unused."

(d) In conclusion, we can readily understand the need for the brevity of the Torah she'Bichsav and its choice of terminology. It can only be learned hand in hand with Torah she'Be'al Peh, for the three reasons set out above.

This is patently obvious in Mitzvos such as Tefilin, Mezuzah, Shechitah etc., (where the description of the Mitzvah is left entirely to Torah she'Be'al Peh). But it should be taken as equally obvious in respect of the other Mitzvos, even those that are described a little more fully in the Torah. The same applies to the apparent sins of the Torah leaders described in Tanach. We cannot simply accept them on an absolutely literal basis - see what Rav Desler in Michtav me'Eliyahu (vol. I p. 161 and on) and others wrote about Reuven and Yakov's bed, for example. (The interpretation of Midrashic material is also not to be taken literally in all cases - but that is an issue for another occasion.)

The Torah is not in any way misleading - provided that one learns it properly, in the prescribed manner, with the constant and permanent assistance of our revered Chazal.

Rabbi Joseph Pearlman

London, England