The Divine Mitigating Factor
A thought for Parashas Naso.
According to Wex Legal Dictionary the definition for Mitigating Factor is
“any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others. Recognition of particular mitigating factors varies by jurisdiction.1
How does Judaism view the circumstantial or outside factors that may affect the motivations or actions of someone involved in a court case? Do we take into account their emotional and psychological background?
The Halacha tells us:
A judge may not have mercy in a case of law regarding a destitute person; he should not say, "He is a poor person, and his opponent is rich, and is obligated to provide for him [anyway]. I will grant him victory in the case of law, and consequently, he will be provided for in a dignified manner.”….. And he may not give honor before the person of higher stature, that if a rich person who is a great chacham, comes with a poor person who is ignorant, he may not give honor [to the chacham], and he may not ask after his welfare, so that the claims of his opponent [the poor person] won't be obstructed, and so he should not say, "How can I make him lose in the case of law, and consequently, he will be embarrassed. Rather, I will exempt him and afterwards tell him to give [his opponent] what is his." Rather, he should decide the law immediately according to its truth…..
And if a kosher person and a wicked person come before him, he may not say, "This is a wicked person, and the prevailing assumption is that he is lying. And the prevailing assumption for this one is that he does not change his words [and even white lie]. I will incline the law onto the wicked one [such that he loses]…. Rather, [a judge] should always assume that the two people involved in the case are like wicked people, and the prevailing assumption is that their claims are lies, and he should decide according to what seems [correct] to him. And when they depart from him they should be in his eyes like kosher people, when they accept the decision from him, and he should judge everyone favorably.2
Amongst the highlights of Parashas Naso is the counting of Shevet Levi and the Korbanos of the Nesi’im for the Chanukas HaMishkan. Sandwiched between these two highlights, the Torah tells us about the Sotah.
The Sotah is a woman who was found to have been secluded together with another man after being warned by her husband not to fraternize with him. The Torah prescribes a seemingly odd method to reveal if she indeed had intimate relations outside of marriage or not. The method consists of the woman going to the entrance of the Mishkan, and bringing a korban. The kohen uncovers her hair and has her take an oath as to her status. If she insists on her innocence, she is then commanded to drink from the Sotah Water. This consisted of a mixture of dirt, a bitter root, and a piece of parchment with a curse that includes the (otherwise forbidden to destruct) name of Hashem written on it and dissolved inside. If she is guilty her insides will burn out, if she is innocent, she will be fine and is permitted to return to her husband.
The Torah uses a terminology that the husband is naki, clean. Why do we need to know that the husband is clean, what did he do wrong?
Rabbi Yaakov Kamenetsky beautifully explains the concept behind the process of identifying a Sotah. While a human judge cannot definitively determine her guilt or innocence, God knows the truth. Through this process of publicly destroying His name and having the woman drink the bitter waters, God reveals His knowledge.
When suspicions arise, even if they are cleared by a human judge, doubts may linger. However, if God is the judge, the husband is naki, he can now be free from any doubt, restoring a marriage of complete trust and peace.
This demonstrates that although human judges may not consider the feelings of the litigants when rendering a verdict, God does take this into account. As the band For King & Country sings in "God Only Knows," only God truly knows what someone has been through, what others say about them, and how it affects them.
It is interesting that a bit further in the Parashah we read God’s command to the Kohanim to bless the Jewish People. The second part of the trifold blessing is יאר ה’ פניו אליך ויחנך, Hashem will shine His countenance toward you and give you graciousness. What does this mean?
Rav Kook explains that it is referring to a growth in Ruchnius which brings a greater expectation to be more straight and honest with each other. This seems a bit discouraging as everyone has their own sensitivities that they feel need to be considered. Therefore, Hashem says that the Kohanim should continue and say ישא ה’ פניו אליך וישם לך שלום that Hashem should lift his face toward you and grant you peace. To lift ones face means to give special consideration or leniency.
The bracha of the Kohanim emphasizes the importance of honesty and fairness in our interactions with others. Sometimes, when we find ourselves in a legal dispute, the objectivity of a judge and their disregard for our personal feelings can cause us to feel unsettled. However, the Kohanim bless us, asking Hashem to provide us with something that a human judge cannot: individualized care and peace of mind. Hashem is always watching over each and every Jew, offering them special consideration (Chein) and a sense of tranquility (Shalom).
Although in a court of law we cannot take into account mitigating factors and we have to consider both litigants guilty until proven innocent, we can still emulate God to be sensitive and considerate in the way we treat and react towards each other. The Kedushas Levi explains that if we can do this then Hashem will mirror the Chein back onto us and give us His Ha’aras panim and the most Godly consideration and true peace of mind.
Originally written in 2015
18 U.S. Code § 3592
Shulchan Aruch CM 17:10