The Divine Mitigating Factor

by | May 29, 2015 | 0 comments

According to the 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. (18 U.S. Code § 3592)

What is Judaism’s view of dealing with the emotional sensitivities of someone involved in a court case? Do we take into account their emotions and other psychological background?

A judge may not have mercy in a case of law regarding a destitute person, that 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 ask after his welfare, so that the claims of his opponent [the poor person] won’t be obstructed, and so he will 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 this 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 decided 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.

(Shulchan Aruch CM 17:10)

The highlights of Parshas Naso is the counting of shevet Levi and the Korbanos of the Nesi’im for the Chanukas HaMishkan. Interspersed in between these two main subjects, 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 hang out 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 an korban. The kohen would uncover her hair and have her take an oath as to her status. If she insisted on her innocence, she would then be commanded to drink from the Sotah Water. That was a special drink which was a mixture of dirt, a bitter root and a piece of parchment with a curse written on it dissolved inside. If she was guilty her insides will burn out. If she was innocent, she would be permitted to return to her husband with the promise of a future pregnancy from him.

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?

Rav Yaacov Kamenetzky explains in his typical beautiful way. The whole method of identifying a Sotah is G-d’s way of showing that although no human judge can decide or know if she in fact was unfaithful, however, G-d does know. G-d tells us through this method of us burning His name and having her drink it. Now, as soon as a suspicion sets in, doubt does not go away even if it is cleared up by the judge. However if G-d is the Judge, then the husband is naki from any doubt. He no longer suspects her even a drop and they can go back to a marriage of full mutual trust and peace.

We see from here that although we may not take into account the feelings of the litigants when ruling in a court of law, G-d does take this into account.

It is interesting that a bit further in the Parsha we read G-d’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 to 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 towards you and give you peace. To lift ones face means to give special consideration or leniency.

The bracha of the Kohanim is that although we are expected to be upstanding and in top form, and we may lose our peace of mind, due to the impartialness of a judge and lack of consideration towards your feelings. Hashem can give us what a human judge cannot and He is still looking out for each Jew and giving him Chein – special and unique consideration and Shalom – peace of mind.

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 G-d 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 G-dly consideration and true peace of mind.

By Rabbi Yaacov Haber

Rabbi Yaacov Haber has been a leading force in Jewish community and Jewish education for over forty years. He lived and taught in the United States, Australia and in Israel. He is presently the Rav of Kehillas Shivtei Yeshurun, a vibrant community in the center of Ramat Bet Shemesh, Israel, and serves as the Rabbinic guide to many of its wonderful organisations.


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