As the name of the tractate – Masechet Makkot – and the name of the perek (=chapter) – Elu hen ha-lokin – imply, the focus of the Gemara‘s discussion is on the punishment of makkot – lashes. The Mishnah on today’s daf (=page) asks: How many lashes will a person receive if he is found guilty and sentenced to lashes?
According to the Mishnah, the standard penalty of makkot is 39 lashes, although the defendant is first examined to ensure that he can withstand that punishment. If he cannot then he will be given as many as the court believes that he will be able to endure (although it will always be a number divisible by three, since the lashes were given in groups of three). Rabbi Yehudah teaches that the convicted man receives 40 lashes, as is clearly written in the Torah – see Devarim 25:4.
Aside from Rabbi Yehudah, all of the Sages are in agreement that the passage in Sefer Devarim should be interpreted to mean that we give a number of lashes that are close to the 40 mentioned in the Torah, but we do not actually give 40 lashes. This leads Rava to state: How foolish are those individuals who stand up to give respect to a Sefer Torah but not to one of the Sages. For while the Torah writes that the punishment of makkot is 40 lashes, yet the Sages rule that it is one less.
This statement leads the Rambam to suggest that on a biblical level really 40 lashes should be given, but the Sages ruled that only 39 should be given lest an additional one be done accidentally, and the negative commandment forbidding more than 40 to be given would be transgressed. Others understand that the biblical requirement is only 39 lashes, and they interpret Rava’s statement to mean that the oral traditions of the Sages were strong enough to lead to a conclusion that does not fit with the simple meaning of the Torah.