The Genesis of Justice

by Alan M. Dershowitz

  Let not a man say, “I will observe the precepts of the Torah and occupy myself with its wisdom in order that I may obtain all the blessings written in the Torah, or to attain life in the world to come; I will abstain from transgressions against which the Torah warns, so that I may be saved from the curses written in the Torah, or that I may not be cut off from life in the world to come.” It is not right to serve God after this fashion, for whoever does so, serves Him out of fear. This is not the standard set by the prophets and sages. Those who may serve God in this way are illiterate, women, or children whom one trains to serve out of fear, till their knowledge shall have increased, when they will serve out of love. 6

  According to other commentators, Abraham was not aware of the world to come—of reward and punishment after death. 7 If so, the stakes were even higher. The death of Isaac would be forever, not simply a transition from this life to the next.

  Even the noble motive attributed to Abraham by Maimonides and other commentators is somewhat self-serving. Abraham placed his allegiance to the all-powerful God above his obligation as a parent and a husband. He never even consulted with his wife about his decision to sacrifice their son. Of course, Sarah was not entirely blameless, either. After all, she was prepared to sacrifice Abraham’s other son, Ishmael, to her own ambitions for Isaac—a deed for which she was called a “sinner” by Maimonides. It was only God’s intervention that saved Ishmael from certain death. 8

  What then is the nature of God’s test of Abraham? The best evidence of that comes from God’s own mouth when He declares that Abraham passed the test: “…now I know that you are in awe of God.” The actual Hebrew word is y’rei, which literally means “afraid” or “in fear of” God. But what kind of a moral test is that? Acceding to an immoral command out of fear does not show much courage or virtue. What if a powerful human king had presented Abraham with a similar, terrible choice: “Either kill your child or I will kill you”? Would we praise a father for being “afraid” of the king, or being “in awe” of the king and killing the child? Of course not. At most we might understand why the father, like those parents during the Holocaust who abandoned or even sacrificed their crying children, might have made such a decision. 9 We might even feel uncomfortable condemning them. But praise them? Never. Why then do we praise Abraham? He may have passed God’s test of justice, but he failed his own test of justice, as he articulated it during his argument over the condemned of Sodom—namely that it is always wrong to kill the innocent, even if God commands it.

  In addition to failing his own test of justice, Abraham also fails every contemporary test of justice. No one today would justify killing a child because God commanded it. A contemporary Abraham would be convicted of attempted murder, and his defense—“I was just following superior orders”—would be rightly rejected. Of course, today we believe that people who hear commands from God are insane, but even if we were to entertain such a claim, we would condemn anyone who acted on it by killing a child. Indeed, there are religious cults that cite the Bible in support of abusing disrespectful children, but we correctly reject their claim that the Bible supersedes their legal obligation, especially when it comes to children. 10

  My Harvard colleague Professor Jon Levenson of the Divinity School makes a powerful argument against viewing Abraham’s actions through the prism of contemporary abhorrence to the murder of children. In the days of the patriarch, child murder was distinguished from child sacrifice. The former was almost universally condemned, the latter widely accepted as a show of gratitude toward the gods. (As recently as five hundred years ago, Incas in South America were still sacrificing children to their gods, as preserved mummies prove.) 11 God did not order Abraham to “murder” his son; such a command would have violated the Noachide laws against shedding innocent blood. God ordered Abraham to “sacrifice” his son, and sacrifice is different from murder, as evidenced by the inclusion of “whom you love” in the description of the sacrificed object. You murder those you hate; you sacrifice what you love most.

  Professor Levenson makes an interesting argument against judging historical figures by the moral standards of a later age. Kierkegaard anticipated and answered Levenson’s argument:

  Perhaps in the context of his times, what [Abraham] did was something quite different. Then let’s forget him, for why bother remembering a past that cannot be made into a present? 12

  Abraham is not seen as a mere historical figure whose actions are simply described; he is a biblical patriarch whose actions are supposed to be eternal, not timebound. Abraham is supposed to be more than a man for all seasons. He is seen as a man to be emulated forever. Levenson acknowledges that Abraham, by being willing to sacrifice his son, violated the Torah’s explicit prohibition against child sacrifice, 13 but, like other traditional commentators, he argues that Abraham’s actions took place before the Torah was given at Sinai 14 and that “any attempt to derive practical norms for ourselves immediately and directly from Abraham’s experience … is thus a denial of the Torah, rather than an implementation of it.” This argument, clever as it is, proves too much. If accepted, it would make all of Abraham’s actions—from his rejection of idol worship to his argument on behalf of the sinners of Sodom—irrelevant to current life. Yet we do derive “practical norms” from Abraham’s pre-Sinaic actions. Indeed, Levenson himself derives a very important norm from the akeidah, praising Abraham as “a man who scrupulously observes God’s commandments” and who “fears” the Lord. How are we to decide which norms are universal and which time-bound?

  At an even more fundamental level, why should sacrifice be so highly valued at the expense of other—even other biblical—norms? Abraham may have been entitled to sacrifice “what is most precious” to him—as long as it was his to sacrifice. His life, his fortune, his health—yes. But his son? No! His wife’s son? Certainly not! Where did Abraham get the right to sacrifice Sarah’s only and last child, especially since he could, as a man, have more children with other wives? Indeed, he had six more children with his next wife. Levenson might argue that judged by the standards of his day, Abraham owned his son—just as he owned his wife. Isaac was his, to do with as he wanted. By sacrificing Isaac, Abraham was giving up something that was his—not Sarah’s. But this argument takes moral relativism beyond all meaning. By any moral, as distinguished from descriptive, standard that Levenson or others could articulate, it would have been wrong for Abraham to sacrifice Isaac. It is significant that Levenson proposes no standard—other than the immoral practices of the time—by which Abraham’s sacrifice of Isaac could be justified. 15 Abraham’s critics may be wrong for failing to consider the historical conditions that allowed for human sacrifices. But the fact that some of Abraham’s contemporaries may have been willing to sacrifice their children does not make Abraham’s actions praiseworthy. Surely there were some,

  even in those days, who refused to sacrifice their children. Perhaps they lost their own lives for their refusal. Why should we judge Abraham by the common—or lowest—standard of his era; should we not expect more of a man who is presented as a paragon of virtue for all times and places? The closest Levenson comes to his own standard of judgment is to praise Abraham for his “radical obedience to the divine commandments” 16 and for his “complete trust” in God. 17

  “Trust” in this context can have multiple meanings. It can mean that Abraham trusted that God was right in ordering him to sacrifice his son and was prepared to do the terrible deed. This is moral trust. It could also mean that he trusted that God would never actually permit the slaughter of an innocent child. This is empirical trust. Trust, in the latter sense, can be illustrated by the experiment in which you ask a loved one to fall backward into your arms. If they trust you to catch them, they will willingly fall. That is empirical trust. Moral trust would be a willingness to fall backward even if they knew you would not catch them, because they trusted your judgment that a broken back is not such a bad thing! It is not clear in which sense trust is us
ed in the context of the akeidah.

  Kierkegaard, in his famous essay on the akeidah—“Fear and Trembling”—focuses on Abraham’s “faith” and argues that he suspended his own ethical principles in demonstrating his faith. Kierkegaard too is unclear whether he means faith that God would not require Abraham actually to sacrifice Isaac (empirical faith) or faith that if He did, it would be the right thing (moral faith). 18 If the latter, then Kierkegaard fails to provide a persuasive argument for why we should praise faith over parental responsibility.

  How then do the traditional commentators explain God’s command, Abraham’s actions, and the praise we are supposed to heap on both of them? What lessons about justice are we supposed to derive from this extraordinary tale of injustice?

  First there is God’s command. How are we to assess it? The “defense lawyer” commentators have a simple-minded, reductionist justification of God’s command. One writes, “The nature of this trial calls for an explanation, since there is no doubt that the Almighty does not try a person in order to prove to Himself whether he is capable of withstanding the trial, since God is all-knowing and has no doubt about anything.” 19 But the text itself is richer than this tautological answer, since the angel of God says, “For now I know that you are in awe of God” (or that you “fear” God). This suggests that the trial was not fixed, as some commentators argue—that neither God nor the angels knew what its outcome would be. Just as God believed and hoped that Job would pass the diabolical test concocted by Satan, God probably also believed and hoped that Abraham would pass the test that God contrived for him. (Some commentators argue that Satan provoked God into testing Abraham just as he did with regard to Job.) But God could not be certain, because since the day Adam and Eve ate from the Tree of Knowledge and learned right from wrong, man had the capacity to choose freely. Perhaps if the test had been a simple one—between good and evil—God could be confident that Abraham would choose good over bad. But which is “good” and which “bad” in the context of a divine command to kill one’s own son? Even God and His angels could not be certain of Abraham’s answer. They had to wait for Abraham to act, and only then could the angel declare, “For now I know. . . .” This idea of God’s uncertainty is supported by some contemporary commentators, 20 who argue that Abraham’s “decision could not be known—even by God—until he actually made it by bringing down the knife on his son’s body.” 21

  Other commentators try to have it both ways. Of course God knew what Abraham would do, even though Abraham had complete free will. 22 The purpose of the test, therefore, was “to translate into action the potentialities of [Abraham’s] character and give him the reward of a good deed, in addition to the reward of a good heart.” 23 In other words, God rewards good actions more than good intentions. But this begs the important question Would it have been good if Abraham had actually carried out God’s command and sacrificed his son? Would the killing of Isaac have given Abraham “the reward of a good deed”? As it was, Abraham got to have his cake and eat it, too. He got brownie points for following God’s command, and he got his son back. But for purposes of evaluating the morality of Abraham’s actions, we should judge him as if he actually plunged the knife into Isaac’s throat. Would that story have appeared in the Bible? If not, why does this story appear—since Abraham’s mens rea (state of mind) and actus reas (actions) are essentially the same as they would have been had he actually killed his son?

  Some midrashic commentators go so far as to suggest that Abraham did actually kill Isaac and that God then brought him back to life. Isaac then “stood on his feet and spoke the benediction ‘Blessed are Thou,

  O Lord, who quickenest the dead.’” 24 These commentators do not take this suggestion to its logical conclusion by asking whether Abraham deserves praise for actually killing Isaac—if that’s what he did.

  A twentieth-century rabbinic commentator, Avraham Yitzhak Kook, contrasts the Abraham story with “the absolute self-surrender characteristic of idolatry.” According to Rabbi Kook, primitive idolatry required its followers to ignore “parental pity” if the gods so commanded “and made cruelty towards sons and daughters the keynote of Molech worship … ” 25 Molech was the Canaanite God of fire who demanded the sacrifice of children. I must admit I do not understand the distinction Rabbi Kook seems to make between Abraham’s actions and those of his Molech-worshiping contemporaries. Abraham too allowed his “self-surrender” to God’s unjust command to triumph over his pity and obligation to his son. And the importance accorded Abraham’s willingness to sacrifice his son can be said to have made “cruelty towards sons”—or at least a willingness to be cruel—a “keynote” of Jewish worship. Abraham’s God is surely to be contrasted with the Canaanite God, since the former stays Abraham’s hand, whereas the latter allows the sacrifices to go forward. But Abraham’s own conduct cannot be contrasted favorably with that of Canaanite parents who willingly sacrificed their children to Molech, unless Abraham never really intended to carry out God’s commands, in which case he loses points on the faith scale.

  In an effort to escape this harsh conclusion, another modern commentator offers a radical interpretation of the Abraham story. Lippman Bodoff, a Jew working within the Orthodox tradition, proposes that in testing Abraham, God hoped that Abraham would refuse His command to murder Isaac. The object lesson of the story, according to Bodoff, is to send a message “that God does not want even his God-fearing adherents to go so far as to murder in God’s name or even at God’s command.” 26 God was “testing Abraham to see if he would remain loyal to God’s revealed moral law”—namely the prohibition against murder—“even if ordered to abandon it.” 27 According to Bodoff, Abraham would pass the test only if he stood up to God and said: “‘I can’t do it; it is contrary to Your moral law.’”

  How might he have managed such an act of defiance? Abraham could have reminded God of His covenant with Noah, which made explicit what had been implicit at least since Cain killed Abel—namely that killing is wrong. Even a heavenly voice cannot make the killing of an innocent child right. The Talmud recounts a wonderful legend that makes the point that once God gives humans His law, He may not interfere with the human process for interpreting and applying it. The legend tells of a rabbinic dispute between Rabbi Eliezer ben Hyrcanus (a brilliant but somewhat arrogant rabbi who lived at the beginning of the second century A.D.) and the other members of the yeshiva over a rather arcane issue concerning an oven:

  On that day R. Eliezer brought forward every imaginable argument, but they did not accept them. Said he to them: “If the halakah [oral law] agrees with me, let this carob-tree prove it.” Thereupon the carob-tree was torn a hundred cubits out of place. … “No proof can be brought from a carob-tree,” they retorted. Again he said to them: “If the halakah agrees with me, let the stream of water prove it!” Whereupon the stream of water flowed backward. “No proof can be brought from a stream of water,” they rejoined. [Finally] he said to them: “If the halakah agrees with me, let it be proved from heaven!” Whereupon a Heavenly Voice cried out: “Why do ye dispute with R. Eliezer, seeing that in all matters the halakah agrees with him!” But R. Joshua arose and explained: “It is not in heaven!” What did he mean by this?—Said R. Jeremiah: That the Torah had already been given at Mount Sinai; we pay no attention to Heavenly Voice, because Thou hast long since written the Torah at Mount Sinai. 28

  The Talmud then relates how a rabbi asked the prophet Elijah what God did next. According to the story, God laughed with joy and said, “My sons have defeated me [in argument].” If God’s voice is not enough to change the law regarding an issue of ritual, why should it be enough to overrule the most fundamental law of humanity: Thou shalt not murder? 29 At the very least, Abraham could have pointed to God’s covenant with Noah and asked God to resolve the conflict between His written and oral command before agreeing to slaughter his son. 30 It shows no disrespect to point to conflicting authority and seek guidance. When Abraham argued with God over the sinne
rs of Sodom, he had no contrary authority—other than his own sense of justice—to which to refer.

  There is a wonderful midrash that elaborates on the conflict between God’s general prohibition against murder and His specific command to murder in this case. As Isaac questioned his father about the absence of a lamb for the burnt offering, a wicked angel named Samael upbraided Abraham, saying: “What means this, old man! Hast thou lost thy wits? Thou goest to slay a son granted to thee at age of hundred!” Abraham was resolute: “Even this I do.” Then the angel prophesied that after Abraham sacrificed Isaac, God would condemn him: “Tomorrow He will say to thee, ‘Thou art a murderer, and art guilty.’” Still, Abraham responded, “I am content.” 31 Abraham, according to this interpretation, was willing not only to sacrifice his son, but also to break God’s law against murder and be rebuked as a murderer, as long as God personally ordered him to do so. Immanuel Kant would have had Abraham respond more directly to God’s command with a reference to the categorical imperative against murder: “That I ought not to kill my son is certain beyond a shadow of a doubt; that you, as you appear to be, are God, I am not convinced. … ” 32 Or as Bob Dylan put it: