The Genesis of Justice

by Alan M. Dershowitz

  The New Testament and the Koran were also subject to midrashic elaboration. Jesus excelled in the use of the midrashic technique, and the Gospels have been characterized as a “masterpiece of the Aggadah.” 32 Mohammed also used the midrash for the legendary material he incorporated into the Koran.

  In this book I will focus primarily on the text of Genesis. When relevant, I will make references to various commentators and midrashim. I do not feel bound by any particular interpretation, nor do I regard any as authoritative or dispositive. Once a text is published, it belongs to us all and we may interpret it according to our own lights. The marketplace of ideas is the sole judge of the validity or usefulness of a given interpretation. Tradition certainly has “a vote but not a veto.” 33 I surely reject the anti-intellectual approach of those contemporary Haredi (fervently Orthodox) rabbis who argue that “the mind of a man in our generation” is “forbidden” to contain “ideas and thoughts which he devises from his own mind, which were not handed down from earlier generations.” 34 I have fought against this sort of anti-intellectual fundamentalism since I was a child studying in the yeshiva, and I continue to reject it as an adult teaching at Harvard. I am inspired far more by the approach suggested by the great sixteenth-century Bible commentator Rabbi Eliezer Ashkenazi, who insisted that “each and every one of us, our children and grandchildren until the conclusion of all generations,” is “duty bound to examine the secrets of the Torah” by “accepting the truth from whoever says it”:

  Neither ought we be concerned about the logic of others—even if they preceded us—preventing our own individual investigation. Much to the contrary, just as [our forebears] did not wish to indiscriminately accept the truth from those who preceded them, and that which they did not choose [to accept] they rejected, so is it fitting for us to do. Only on the basis of gathering many different opinions will the truth be tested. . . . Do not be dismayed by the names of the great personalities when you find them in disagreement with your belief; you must investigate and interpret, because for this purpose were you created, and wisdom was granted you from Above, and this will benefit you. …” 35

  While my own ideas certainly owe an enormous debt to those of earlier generations, it is hoped that I can provide some new insights that derive from my unique experiences as a lawyer and teacher. Employing one’s own experiences to expand knowledge is, after all, a central message of Genesis, in which the characters make mistakes, challenge, and are challenged by God.

  Several of my students and colleagues have wondered why I have chosen to focus on the Book of Genesis, which contains many stories but few laws, rather than on the “law books” of the Bible. I have chosen to write about Genesis quite deliberately. I believe that the broad narratives of justice and injustice are more enduring than the often narrow, time-bound, and sometimes derivative rules of the Bible. Although their influence—especially that of the Ten Commandments and the principle of the talion—has been enormous, not all have stood the test of time. Some rules are no longer relevant. For example, much of the Book of Leviticus deals with animal sacrifices. Even the law books, which cover relationships among human beings, contain some proscriptions that few find binding today. The child who rebels against his father and mother is no longer stoned to death—if he ever was 36 —nor are witches summarily executed. These rules and others like them reflect anachronistic practices that almost certainly predate the Bible. The biblical narratives, especially in Genesis, are as fresh, as relevant, as provocative, and as difficult as they were in ancient times. They also provide context and give life to the rules that derive from them. The vignettes, short stories, and novellas that make up the early biblical narratives have few peers in the history of provocative texts on the human condition. As long as human beings ask questions about justice and injustice, they will continue to be interpreted and discussed. Many readers of this book will surely have their own interpretations—midrashim—of the biblical stories. I urge you to read this book in the questioning, argumentative spirit in which it was written and invite you to continue the dialogue by e-mailing your own interpretations to alder@law.harvard.edu. * I will distribute interesting comments to my students and include you in the dialogue among generations.

  1. See, for example, the parable of the wedding banquet at Matthew 22.

  2. The disciples do not come off as well in several of the Gospels. See generally, Mark’s gospel.

  3. 7:20. Traditional commentators point to three biblical exceptions: Benjamin, Amram, and Yishai are without fault.

  4. The Greek gods were also imperfect—as might be expected in a situation in which there are numerous gods, each with limited jurisdiction. More is to be expected of a single god with unlimited jurisdiction.

  5. I offer an explanation for this intriguing fact in Chapter 11.

  6. Midrash Rabbah Vol. 1, p. 68.

  7. See The Book of Women (New Haven, Conn.: Yale, 1972), p. 87.

  8. Bava Batra, 23b. Even this story is seen to convey a positive lesson. Professor Moshe Silberg interprets it as a “veiled criticism against [the] tendency to formalism.” Moshe Silberg, Talmudic Law and the Modern State (New York: The Burning Bush Press, 1973), pp. 86-90.

  9. Excerpts from my d’var Torah on June 16, 1956: “These three words—chok (divine decree), mishpat (a rule based on justice), and g’zaira (a despotic human decree)—have played a major role in the political evolution of many nations. The concept of g’zaira has been the basis of the absolute monarchy of the past and the totalitarianism of the present, while mishpat has been the essence of democracy and liberty throughout the ages. But g’zaira, the despotic decree, could not exist for long without help. The people as far back as the fifteenth century realized that the proclaiming of decrees without apparent reason is the sole privilege of G-d and not of mortal kings, and so in order to rationalize their despotic actions the monarchs utilize the concept of chok, the G-dly decree, and so there came to be the divine rights theory of monarchies, which claim that the law of the land was actually the chok of the Almighty, but that the king as the direct messenger of G-d could execute his desires without question as chok rather than g’zaira. As time progressed communism came into focus and sought also to rationalize its totalitarianistic principles by chok rather than g’zaira, and so they invented their own pseudo-gods, their Lenin or Stalin, who then acting as G-d of the Russian people could execute his own chukim so to speak without being questioned concerning them.

  In our own United States, however, with the help of G-d, political evolution has always been based on the concept of the mishpat, justice, or, as we prefer to call it, democracy. We refuse to recognize any concept of g’zaira, and we demand that all law be opened to the checks and balances of mishpat. However, in a democracy such as ours all is neither black nor white when viewed under a practical light. There are times when our system seems to be approaching slowly but surely the method of g’zaira, and then just as slowly it advances and approaches mishpat. In a country such as this, a minority seeking to be heard must exert its greatest influence when the country approaches the period closest to mishpat and furthest from g’zaira. This period in practical American politics is known as the election year, the year a democracy is most vulnerable. The foreign as well as domestic policies of the administration, which are treated as unquestionable chok during the years 1953 to 1955 suddenly become open to as much question and criticism as any other man-made mishpat when 1956 rolls around.”

  10. Maimonides, ever the man of reason, rejected this distinction and struggled mightily to come up with reasons—often farfetched—for all the rules. He argued that many of the chukkim grew out of God’s efforts to deal with the reality of idol worship and astrology particularly by the Sabians of the time the Torah was given. See Stern, Josef, Problems and Parables of Law (Albany SUNY, 1998).

  11. p. 15. Although Ibn Ezra may have intended this statement as something of a put-down to those nonliteralists who allow their imaginations and interpretations to wan
der too far from the text, I will take his invitation literally, thereby remaining true to Ibn Ezra’s own canon of interpretation.

  12. One rabbinic source put the number at ninety-eight (Riskin at nine, citing the Vilna Gaen). Nahama Leibowitz, a contemporary commentator, goes even further, pointing to a tradition that the facets of the Torah are infinite (New Studies in Bereshith 19 [Genesis]; [Ehiner, Jerusalem] xxxii). Ibn Ezra concluded, “The end of the matter is, there is no limit to Midrashic interpretation” (Ibn Ezra at p. 17). Ibn Ezra did state, however, “The literal meaning of a verse is never negated by Midrashic interpretations,” at p. 18.

  13. Midrash Rabbah, Foreword by Rabbi Dr. I. Epstein, vol. 1, p. xi.

  14. Twersky, Isadore, A Maimonides Reader (Behtman, 1972), p. 28.

  15. Lamm, Norman, Faith and Doubt (New York: Ktav Publishing House, Inc., 1971), pp. 124-25.

  16. Epstein, I. “The Midrash” (Foreword), in Freedman, H., Midrash Rabbah (Soncino: London, 1983), pp. xxi-xxii.

  17. Idem at p. xxii. See also Halivni, David, Revelation Restored (New York: Harper & Row, 1987).

  18. In the final editing phases of this book, someone brought to my attention a 1905 book by a Philadelphia lawyer named David Werner Amram, entitled Leading Cases in the Bible (Philadelphia: J. H. Grennstone, 1905). He makes the point that

  The Bible has been studied almost exclusively by theologians and rarely by lawyers. The fact that lawyers, or men with legal training, have not found the Bible an object worthy of their serious attention has contributed not a little to its misinterpretation and to the misconceptions that have arisen out of it. The long continued misinterpretation of the biblical records in the interest of theological dogma, falsely called religion, or of race prejudice falsely based on the science of comparative sociology, has helped to bring the Bible and biblical study into disrepute. Men of modern times who love freedom in thought and in expression—and among this class lawyers are by training and professional practice easily among the first—have revolted from the influence of dogmatic religion and its superstructure of vanity and vexation of the spirit. With this revolt has come a concomitant loss of all interest in the Bible for its own sake, as a valuable record of history, custom and law. Thus the Bible has suffered for the sins of the churches and of the official expounders of the word of God. The pages of history are overburdened with testimony showing how every villainy practiced by officialdom and hierarchy, every intolerant edict of king or prelate, every special plea for vested rights founded on class privilege, every oppression of the many by the few, has been ably defended by the official mouthpiece of many a church. And even in our own day and time we see so-called ministers of religion encouraging and supporting similar wickedness and like their forerunners appealing to the Bible has become an object of contempt, but to its adherents it has remained an object of veneration. The former class do not read it at all; the latter read it in the light of official exposition, which is quite as bad, if not worse than not reading it at all.

  While much of Amram’s approach is an anticlerical polemic, some of his insights on particular stories, especially Job, are interesting. See also Cover, Robert, “Nomos and Narrative,” 97 Harvard Law Review (November 1983), who takes an entirely different view of the uses of biblical narrative in jurisprudence.

  19. Midrash Rabbah, vol. 1, p. 60.

  20. See Kellner, Menachem, Must a Jew Believe Anything? (London: Littman, 1999).

  21. See Laytner, Anson, Arguing with God (Northvale, NJ: Aronson, 1990), pp. 179-96.

  22. Ibn Ezra also cites a verse in Genesis that has Abraham naming a place and the Bible saying “as it is said to this day” (22:14). Rashi interprets the verse as referring to the future. Deuteronomy 3:11 also alludes to future knowledge.

  23. See Richard Elliot Friedman, Who Wrote the Bible? (New York: Harper & Row, 1987).

  24. p. 10.

  25. Pope John Paul II, The Interpretation of the Bible in the Church (Rome: Libreria Editrice Vaticana, 1993), pp. 71-72.

  26. See Friedman, Who Wrote the Bible? p. 247.

  27. See Riskin, Shlomo, Confessions of a Biblical Commentator at p. 3. The Jewish scholar Emmanuel Levinas’s deconstruction of talmudic texts helped pave the way for Jacques Derrida and other deconstructionists. As one scholar has written: “Levinas is . . . one of the thinkers who made Derrida and deconstruction possible” (Susan A. Handelman, Fragments of Redemption [Bloomington: Indiana University Press, 1991], p. 179). Derrida wrote an entire essay on Emmanuel Levinas, “Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas,” in Writing and Difference, trans. Alan Bass (Chicago: University of Chicago Press, 1978).

  28. After the completion of the Hebrew Scriptures, midrashic creation in Aggadah obtained a dominating position in the spiritual life of Jewry. For a long period it was the vehicle for Jewish ideas, thoughts, feelings, and knowledge. Among the oldest Aggadic midrashim is undoubtedly The Aggadah recited on Passover evening, which according to one authority (Finkelstein, L., The Oldest Midrash, The Harvard Theological Review, 1938, pp. 291 ff.) was compiled between the second half of the third century and the first half of the second century B.C.E.” (Epstein at p. xii).

  29. Quoted in Epstein at p. xix. The more formalized midrashic process continued “in an unbroken line from the days of Ezra [around 400 B.C.] to the 11th century” (Epstein at p. xviii). There are also the Responsa, which are recorded rabbinic answers to legal (halakic) questions over time. For a remarkable example of such literature, see Oshry, Ephraim, Responsa from the Holocaust (Judaica Press, 1983).

  30. See Gillman, Neil, The Death of Death (Woodstock, Vt.: Jewish Lights, 1997), pp. 32-33.

  31. Twersky at p. 44.

  32. Renan, E., Histoire du Peuple d’Israel (1893) v, p. 321, quoted in Epstein at p. xx, n. 1. The “Church fathers fully understood the importance of the midrashic method employed with telling effect by contemporary Jewish preachers . . . , and resolved to resort to the same spiritual weapon in order to place the dogmatic system of the Church on a firm basis.”

  33. Kaplan, Mordechai, Not So Random Thoughts (New York: Reconstructionist Press, 1966), introduction.

  34. Rabbi Eliexer Shakh, criticizing Rabbi Joseph Soloveitchik, as quoted in Riskin, Shlomo, Confessions of a Biblical Commentator, at p. 25. Riskin points out that Maimonides explicitly introduced “novel ideas” (hidushim) in the textual meaning of the Bible. Idem at p. 4. Most modern Orthodox authorities accept the concept of hidushim, at least in a limited way.

  35. Quoted in Riskin at pp. 9-10. Rabbi Ashkenazi believed that such an exploration would necessarily “straighten out our faith,” but he appeared willing to risk the possibility that it might lead to apostasy. See p. 10.

  36. The Talmud suggests that rebellious sons are not actually executed. Rabbi Jonathan said “he had once seen such a one and sat on his grave” (Sanhedrin 71a). The Talmud itself made it virtually impossible to execute a rebellious son, since he must be thirteen years of age to bear criminal responsibility, but still young enough to be a “son” and not a man. Professor Menachem Elon views the biblical rule as “intended to limit the powers of the paterfamilias: the head of the household could no longer punish the defiant son himself, according to his own whim, but had to bring him before the elders (i.e., judges) for punishment. In earlier laws (e.g., Hammurapi Code nos. 168, 169) only the father had to be defied; in biblical law, it must be both father and mother.” See generally, Elon, Menachem, The Principles of Jewish Law (Jerusalem: Encyclopaedia Judaica, 1974), p. 491.

  PART II

  THE

  TEN STORIES

  CHAPTER 1

  God Threatens—and Backs Down

  YHWH, God, commanded concerning the human [Adam], saying:

  From every [other] tree of the garden you may eat,

  yes, eat, but from the Tree of the Knowing of Good and Evil—

  you are not to eat from it for on that day you eat from it, you must die, yes, die….

  GENESIS 2:16
-17

  Now the snake was more shrewd than all the living-things of the field that YHWH, God, had made.

  It said to the woman [Eve]:

  Even though God said: You are not to eat from any of the trees in the garden …!

  The woman said to the snake:

  From the fruit of the [other] trees in the garden may we eat, but from the fruit of the tree that is in the midst of the garden, God has said:

  You are not to eat from it and you are not to touch it, lest you die.

  The snake said to the woman:

  Die, you will not die!

  Rather, God knows

  that on the day that you eat from it, your eyes will be opened

  and you will become like gods, knowing good and evil.

  The woman saw that the tree was good for eating

  and that it was a delight to the eyes,

  and the tree was desirable to contemplate.

  She took from its fruit and ate

  and gave also to her husband beside her,

  and he ate

  The eyes of the two of them were opened

  and they knew then

  that they were nude.

  They sewed fig leaves together and made themselves loincloths.

  Now they heard the sound of YHWH, God, [who was] walking about in the garden at the breezy-time of the day.

  And the human and his wife hid themselves from the face of YHWH, God, amid the trees of the garden.

  YHWH, God, called to the human and said to him:

  Where are you?

  He said:

  I heard the sound of you in the garden and I was afraid because I am nude,

  and so I hid myself.

  He said:

  Who told you that you are nude?

  From the tree about which I command you not to eat,

  have you eaten?

  The human said: