What if someone did not fulfill the commandment of shilu’aḥ ha-ken?
The Mishna on today’s daf teaches that if someone took the mother bird together with her young, Rabbi Yehuda says that he has transgressed a negative commandment from the Torah and he is liable to receive lashes, but he need not now let her go. The Sages disagree, arguing that he must let her go, but he does not incur lashes. They conclude with the general rule that leads them to this ruling – one does not receive lashes for the transgression of any negative precept which can be remedied by the subsequent fulfillment of a positive commandment.
The Gemara then relates the following story:
A man once clipped the wings of the mother bird before letting it go, let it go and then caught it again. Rav Yehuda had him flogged and ordered him: ‘Go, keep it until it grows its wing feathers again and then let it go.’
The problem with this story is that Rav Yehuda’s ruling does not seem to follow either of the two opinions in the Mishna. According to Rabbi Yehuda he should receive lashes but need not let it go; according to the Sages he must let it go but does not receive lashes! The Gemara concludes that Rav Yehuda accepted the view of the Sages, and the lashes that he received were makkat mardut mi-d’rabbanan – the lashes decreed by the Rabbis for rebelliousness as opposed to stripes ordained by Biblical law.
The Talmud Yerushalmi specifies the differences between Biblical and Rabbinic lashes. Biblical lashes are limited to 39 stripes that are given only after ascertaining how much suffering the person can stand without being killed. There is no prescribed number of stripes given for Rabbinic lashes; they are given until the person accepts the ruling or requirement of the court. The Shitta Mekubbetzet suggests that we must distinguish between situations where someone is involved in an ongoing sin, where the purpose of Rabbinic lashes is to convince him to repent and someone who committed a one-time sin where the purpose of Rabbinic lashes is to serve as punishment. In the latter case it seems logical that the Rabbinic lashes should not be more severe than Biblical ones.