We once discussed the beautiful hesber of the Maharal as to why beis din gives 39 malkos when the Torah says to give 40, but I actually wrote it a little backwards back then in 2009, so a little chazarah: It takes 40 days from conception until a person counts as an existing fetus. On day 40, after the body has been formed, the neshoma comes into the person.
When a person sins, it is as if they have corrupted the core of their existence. We need to go back to the roots, to what happened in those first 40 days, and straighten things out.
Each lash of malkos straightens out one day. Since the neshoma remains pure – it’s only because the guf shleps it along on its misdeeds that the neshoma ever gets into trouble – only 39 malkos are needed to fix the 39 days in which the guf was formed. Day 40, the day the neshoma entered, needs no fixing.
The Torah uses the expression of 40 malkos because the unit of guf/neshoma as a whole sinned and needs fixing. However, l’ma’aseh, to accomplish that goal, once we attack the component parts, only 39 lashes are needed.
R’ Yosef Engel (Beis ha’Otzar here) points out that there seems to be an open gemara against this Maharal. The gemara (Sanhedrin 91b) writes that Antoninus asked Rebbi when it is that the neshoma enters the body: at conception or after 40 days. Rebbi answered that it happens on day 40. Antoninus asked how this could be so – wouldn't the body, an inanimate piece of flesh, just rot if it had no neshoma in it for 40 days? Rebbi was forced to change his mind and even quoted a pasuk that supported Antoninus' argument. The gemara concludes that Rebbi said that Antoninus taught him this idea.
According to the Maharal, the neshoma enters the body after the guf is ready on day 40; it’s the culmination of the process – exactly like the hava amina of Rebbi. The gemara’s conclusion, however, is that this is wrong - the neshoma enters on day 1. Even Rebbi admitted to this fact. What did the Maharal do with this sugya?
Tremendous question and R’ Yosef Engel does not have an answer.
For some icing on the cake, take a look at the Rashi there in Sanhedrin d”h limadtani Antoninus = m’devarav lamaditi. What is Rashi adding ? Isn't that what the gemara says?
R’ Shlomo Freifeld explained that Rashi’s point is that Rebbi was able to draw a conclusion from Antoninus’ argument ("m'devarav"), but there was no rebbe-talmid relationship between Rebbi and Antoninus the person even for this one item. Such a thing cannot exist. R’ Hartman said that R’ Hutner was so impressed with his vort that he said he would give R’ Freifeld smicha on that basis alone (guzma or not, I can’t tell you.)
Anyway, now you have what to think about. I hope bl”n later to get to the teirutz for R’ Yosef Engel’s kasha, which will also give us an unbelievable insight into this Rashi, so come back later.