Ketubot 33 - Which is worse, torture or death?
Continuing with the subject of money penalty vs. lashes , imagine that two witnesses testify about their fellow that he owes money to someone, and later it transpires that they were scheming false witnesses. On the one hand, they should repay the money which the subject of their testimony would otherwise have lost, since the Torah said " do to them what they schemed to do to their fellow ." On the other hand, they transgressed a very serious prohibition of being false witnesses, and perhaps should be given lashes, like for any prohibition on the Torah. Which should apply?
Said Abaye: "We cannot give them lashes, because we cannot warn them; and if we do warn them, they will refuse to testify!" Later Abaye disproved himself and said: "They did not warn the man about whom they testified falsely, so they themselves also should not require a warning." But the fact remains that they pay and are not lashed.
Comparing death with torture, Rav said, "Even though Chananya, Mishael and Azaryah were ready to give up their lives but not bow down to an idol, had they whipped them, they would bow." We thus see that when choosing a punishment, the court must consider whiplashes stricter than death. However, Rav Samma the son of Rav Ashi said to his father, "That is not the same! The court gives a fixed number of lashes, but the torture continues!" Others read this statement of Rav completely the opposite, as a question: "Even if they tortured them, would they bow down to an idol? -- Surely not!" Under this reading, idol worshiping would be permitted when faced with torture, but Chananya and his friends went beyond the letter of the law.
Art: An old woman counting money for a gentleman by Jan Josef Horemans