Deuteronomy 25 begins like a law-and-order text. Judges are to condemn the wicked and justify the innocent. Convicted criminals are beaten, and beaten publicly “in the presence” of the judge, beaten as much as his crime deserves (v. 2).
Verse 3 takes a slight turn: It places a limit on the number of times a convicted man can be beaten: “He may be beaten forty times but no more.” That’s a lot of beating, but it’s still a limit. The judge cannot order the beating to go on forever.
Perhaps it is implied that the laws concerning slave-beatings apply here. Masters in Israel were permitted to beat slaves, but they would be punished if they beat a slave to death (Exodus 21:20-21), presumably on a charge of manslaughter. If a master beat a slave badly enough to knock out a tooth, the slave had to be set free (Exodus 21:26-27). Analogously, a judge who ordered a beating that killed the convicted person might have been punished, and a beating that led to permanent disfigurement or disablement of the convict would have to pay damages.
Verse 3 adds a rationale for placing a limit on the number of strokes: so that “your brother is not degraded in your eyes.” “Degrade” or “dishonor” is the opposite of the honor that the law requires of children toward their parents (Deuteronomy 27:16); it can describe a class of “inferiors” (Isaiah 3:5). “Degradation” is the opposite of “glory” (Isaiah 16:14). According to Deuteronomy 25, criminals are regarded as “brothers” and as such are entitled to respect. They retain glory even when convicted, and the punishments inflicted on them are to be consistent with that glory.
What started out as a hard-nosed law-and-order text ends up sounding almost bleeding-heart. Even where we don’t follow the specifics of Deuteronomic legislation, the Deuteronomic spirit seems to be a worthy aspiration for modern punitive justice: Punishment is just and necessary, but the form and intensity of punishment should be consistent with the dignity of the criminal. Perhaps we can extend Deuteronomy’s kin language: In punishing fellow citizens, we should be mindful that we are punishing brothers.