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May 13, 2013 / conservadox

Dvar Torah- Naso

This week’s portion includes the sotah ritual, in which a wife accused of adultery undergoes a trial by ordeal.  At the end of its discussion, the Torah notes that the suspicious husband shall be free of guilt no matter what happens, even if the wife is cleared (Num. 5:31).

Why is the husband’s situation mentioned?  Milgrom writes “the point of this addendum is to assure a suspicious husband that he has nothing to lose by bringing his wife to the ordeal.”  Here, the Torah, like good modern policymakers, is worried about creating perverse incentives and disincentives: it wouldn’t make sense to create this procedure if someone was taking big risks by getting involved in the Biblical justice system- for example, risking a “counter honor-killing” (if that’s the right phrase) by the ticked-off family of a dishonored wife.

Would that we were so wise today!  The expenses of litigation are sometimes so great that the winner suffers as well as the loser, since a successful verdict may not compensate for attorneys fees, etc. Of course, we could avoid this by creating a “loser pays” rule- but that rule creates its own problems, such as being especially harmful to less-affluent litigants, or encouraging bad (overly stingy or overly generous to a defendant) settlements to avoid the loser-pays rule.  I don’t see any way out of the problem- but it is interesting to think that the Torah was grappling with similar issues 3000 years ago.

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2 Comments

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  1. Shira Salamone / May 19 2013 12:17 am

    Alternatively, the Torah could have mandated something sensible, such as a public apology to the wife for having subjected her to public humiliation for no good reason. I am thoroughly offended by precisely the notion that the husband would have had nothing to lose by putting his wife through this ordeal just to satisfy his delicate ego. Isn’t this sort of public attack covered in modern law under the category of libel, slander, and/or defamation of character?

  2. Shira Salamone / May 19 2013 12:28 am

    In other words, not only could the husband accuse his wife on a whim (“ruach kin’ah/spirit of jealousy”), he didn’t suffer any consequences if the charge proved to be false. It’s no wonder that the rabbis developed so many laws governing the Sotah procedure that they made it nearly impossible to carry out.

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