The Genesis of Justice

by Alan M. Dershowitz

  Guile is the great leveler between the physically unequal. Jacob understands that he is no match for his stronger brother in the arena of physical combat. Nor is his clan a match for the far more numerous and warlike tribes. Accordingly, he must rely on his wit. It is interesting to note that the one attribute that is equally characteristic of biblical man and woman is guile. Although women are presented as physically, spiritually, and economically weaker than their male counterparts, they are equally adept at using trickery to level the playing field. Eve, Lot’s daughters, Sarah, Rebecca, Rachel, Leah, Tamar, and Potaphar’s wife all rely on their feminine wiles. Jacob, by favoring guile over the brute force of his stronger brother, can be said to be reflecting the feminine as well as the Jewish aspect of Rebecca’s twins. Jews as a people and the women of Genesis share a common need to resort to guile in order to achieve the equality denied them in physical strength.

  Jacob’s actions toward his fellow man are often more tactical than principled. In the Dina story discussed in the next chapter we will see Jacob condemn the violence of his sons Simeon and Levi not because it is wrong, but because it will make him look bad in the eyes of his neighbors and subject him to possible retaliation. It is noteworthy that he does not condemn their deceptiveness in misusing circumcision, only their violence. For Jacob, noble ends justify ignoble means, as long as the benefits outweigh the costs. Because his family is weak in number but strong in intellect, he prefers the weapon of wit over sword. He chooses the battlefield on which he can win. In a world without law, what better qualification for leadership could there be?

  Jacob extorts and tricks his brother into surrendering the benefits of his primogeniture, because he knows that he will be a more suitable leader. He is right. His mother knows he is right. Even his blind father suspects he may be right. And God knows he is right. Perhaps having Jacob born after his stronger brother was a test of his leadership skills: Can a second-born child depose his older brother from his “natural” status as leader? He passes the test with flying colors, though not without paying a heavy moral and psychological price.

  For all of his trickery, Jacob never tries to deceive God. He bargains with Him, even wrestles with Him, but he is always straight with God. The result is that God blesses Jacob with leadership, but makes him understand that the wages of deception are deception. He who lives by guile will suffer from guile. In a world where deception is often rewarded in the short run, the life of Jacob demonstrates that over time we reap what we sow. Viewed backward—as all history is viewed—we see that Jacob pays a high personal price for the qualities that make him a good leader in a world before formal law. He tells Pharaoh: “Fear and evil have been the days of the years of my life.” 14 Clearly, although Jacob was a great leader who left a wonderful legacy, the constant deceptions took an enormous toll on his personal life. This is a trade-off that will be repeated throughout history, especially in the lives of great leaders.

  A contemporary commentator sees a more powerful moral in the Jacob narrative: “God’s memory is just; the punishment of evil is not escaped. Sooner or later we all eat at the table of consequence.” 15 In support of this long-term view of symmetrical justice, he cites a traditional rabbinic interpretation of the Jacob story: “Whoever maintains that the Holy One is lax in dispensing justice is grievously mistaken. God is long suffering but ultimately collects His due. Jacob made Esau break out into a cry only once, but . . . the descendants of Jacob were punished” both in the near term and throughout Jewish history. 16

  As with Jacob, we do sometimes see long-term, symmetrical justice. When such justice occurs, it becomes a first-page news item, as with the case of Lamija Jaha, an Albanian Muslim whose parents had sheltered Jews during the Holocaust and whose family was rescued by Israel nearly sixty years later. 17 More often, life confirms the maudlin observation of Ecclesiastes:

  I have seen wrong-doers being carried with pomp to their graves, and, as men return from the sacred ground, the evil-doers are praised in the city where they had acted thus. Indeed, this is vanity!

  Because judgment upon an evil deed is not executed speedily, men’s hearts are encouraged to do wrong, for a sinner commits a hundred crimes and God is patient with him, though I know the answer that “it will be well in the end with those who revere God because they fear Him and it will be far from well with the sinner, who, like a shadow, will not long endure, because he does not fear God.”

  Here is a vanity that takes place on the earth—there are righteous men who receive the recompense due to the wicked, and wicked men who receive the recompense due to the righteous. I say, this is indeed vanity.

  If the intended message of the Jacob narrative is that you (and your descendants) inevitably reap what you sow, it is a false and dangerous message. All too often the wages of sin are prosperity and happiness. It is precisely because justice is not the natural condition of mankind—or the inevitable workings of God—that we are obliged to pursue it actively and not take it for granted. As the subsequent Book of Deuteronomy will mandate: Justice, justice shall you pursue—actively. Nor will it be simple. As Abraham taught us, some guilty must go free to assure that the innocent are not wrongly convicted. For those who now believe in a hereafter, those guilty will eventually receive their just deserts. For those who believe that the only justice is here on earth, the occasional freeing of the guilty will be seen as a necessary cost of every fair process of justice. Perhaps the freed guilty person will suffer in his life as Jacob did. Perhaps not. The story of a Jacob is a lesson about the symmetry of justice even in the absence of formal law. Yet even the presence of formal law does not always assure perfect justice in the real world. However, as we will see in the next chapter, the absence of formal law often leads to vigilantism.

  1. Soncino Chumash at p. 141, n. 26.

  2. Midrash Rabbah, vol. 2, p. 563.

  3. Genesis 25: 23.

  4. See Plant, W. Gunther, ed., The Torah: A Modern Commentary (New York: Union of American Hebrew Congregations, 1981), p. 190.

  5. Some rewards and punishments are, however, postponed to future generations. This is similar, in some respects, to the hereafter. See Chapter 13 infra.

  6. See Kass, Leon, Commentary, March 1999, p. 48.

  7. Ibid. at p. 49.

  8. Ginzberg at p. 361.

  9. Midrash Rabbah, vol. 2, p. 650.

  10. Genesis 31: 17-21.

  11. See Kass at p. 52.

  12. Ginzberg at p. 371.

  13. In the words of one contemporary commentator, he relies “on craftiness to outwit superior force” (Kass at p. 52).

  14. Genesis 47: 9.

  15. Schulweis, p. 72.

  16. Schulweis, p. 72, quoting Genesis Rabbah 67: 4.

  17. See New York Times, May 2, 1999, p. 1.

  CHAPTER 8

  Dina Is Raped—and Her Brothers Take Revenge

  Now Dina, Lea’s daughter, whom she had borne to Yaakov, went out to see the women of the land.

  And, Shekhem son of Hamor the Hivvite, the prince of the land, saw her:

  he took her and lay with her, forcing her.

  But his emotions clung to Dina, Yaakov’s daughter—he loved the girl,

  and he spoke to the heart of the girl.

  So Shekhem said to Hamor his father, saying:

  Take me this girl as a wife! …

  Hamor spoke with [Jacob and his sons], saying:

  My son Shekhem—

  his emotions are so attached to your daughter,

  [so] pray give her to him as a wife!

  And make marriage-alliances with us:

  give us your daughters, and our daughters take for yourselves, and settle among us! …

  Now Yaakov’s sons answered Shekhem and Hamor his father with deceit,

  speaking [thus] because he had defiled Dina their sister,

  they said to them:

  We cannot do this thing,

  give our sister to a man who has a foreskin,

  for that wou
ld be a reproach for us!

  Only on this [condition] will we comply with you:

  if you become like us, by having every male among you circumcised.

  Then we will give you our daughters, and your daughters we will take for ourselves,

  and we will settle among you, so that we become a single people …

  Their words seemed good in the eyes of Hamor and in the eyes

  of Shekhem son of Hamor, …

  [A]ll the males were circumcised, all who go out [to war] from the gate of his city.

  But on the third day it was, when they were still hurting,

  that two of Yaakov’s sons, Shim’on and Levi, Dina’s full-brothers,

  took each man his sword,

  they came upon the city [feeling] secure, and killed all the males,

  and Hamor and Shekhem his son they killed by the sword.

  Then they took Dina from Shekhem’s house and went off.

  Yaakov’s [other] sons came up upon the corpses and plundered the city,

  because they had defiled their sister.

  Their sheep, their oxen, their donkeys—whatever was inside the,

  city and out in the field, they took

  all their riches, all their little-ones and their wives they captured and plundered,

  as well as all that was in the houses.

  But Yaakov said to Shim’on and to Levi:

  You have stirred-up trouble for me,

  making me reek among the settled-folk of the land, the Canaanites and the Perizzites!

  For I have menfolk few in number;

  they will band together against me and strike me,

  and I will be destroyed, I and my household!

  But they said:

  Should our sister then be treated like a whore?

  GENESIS 34

  The vigilante punishment meted out to Dina’s rapist and his entire clan crystallizes a fundamental issue that pervades the Bible and has confronted every system of justice: individual versus collective responsibility and punishment.

  Even before the Dina narrative, this issue had been foreshadowed: the collective punishment of all men and women for the sin of Adam and Eve, the flood, the destruction of Sodom. These were all inflicted directly by God. The vigilante punishment inflicted by Dina’s brothers on “all the males” in the clan of Dina’s rapist raises the issue in the starkest of human terms. The brothers trick the men into undergoing circumcision and then take advantage of their weakness, murder them in cold blood, and take their children, wives, and wealth. 1 As mentioned in the previous chapter, Jacob rebukes his sons for what they did, but not in moral terms. He is troubled because their actions will make him look bad in the eyes of his neighbors and perhaps subject him to retaliation. His sons have violated his prudential rule of winning against more powerful adversaries by deception alone and not force. 2

  The story of Dina is unrelated to the continuing narrative of the Book of Genesis. Dina never reappears. 3 We never learn what happened to her: A Midrash has her becoming pregnant and giving birth to Joseph’s wife, but there is no textual support for this speculation. Nor does the narrative reveal whether she approved of her brothers’ actions. The retaliation that Jacob feared never materializes. The only subsequent allusion to the Dina story occurs during Jacob’s deathbed testament, wherein he recalls the lawlessness and anger of his sons Simeon and Levi. 4 Why then is this isolated vignette included in the Bible? What lessons about justice are we supposed to learn from the brothers’ murderous vengeance and Jacob’s tactical reproach?

  Several of the “defense lawyers” are quick to justify the actions of the patriarch and his children. They point to the words of the text that say that the brothers destroyed “the city which had defiled their sister,” thus suggesting that all the residents of the city are in some way guilty. 5 Even Maimonides, who often questions the actions of biblical heroes, argues that all the men who were killed were guilty because they did not bring the rapist to trial for his crime. Maimonides points to the Noachide laws that govern non-Jews and, according to the commentators, prohibit seven specific acts. There are several problems with this argument. First, rape is not among the seven prohibitions, so Maimonides is forced to define Shechem’s act as “robbery”—an insult to women, since it analogizes them to property. Second, the Noachide laws do not prescribe capital punishment for inaction or even for accessories. Third, even the more stringent Jewish law does not punish rape of an unbetrothed maiden by death. 6 Fourth, even if the men deserved to be executed, surely they were entitled to some legal process. Nachmonides disagrees with Maimonides’s justification but claims that the men deserved to die because they “were wicked” and had “thereby forfeited their lives.”

  As a final irony, the victims here were Jewish when they were killed, since they had been circumcised. This led one cynical rabbi to conclude that Shim’on and Levi had them circumcise themselves because no one cares if Jews are killed!

  Many traditional commentators seem to presume guilt on the part of anyone who incurs the wrath of God, a patriarch, or even the son of a patriarch. If a man was punished, he must be guilty of something! If he was punished severely, he must be guilty of something quite serious. I am reminded of the joke that went around the Soviet Gulag during the time I was representing Jewish refuseniks. One prisoner asks another prisoner what he had done to warrant his ten-year sentence. “I did absolutely nothing,” the second prisoner responds. “You are a liar,” the first one shoots back. “For absolutely nothing, they only give you five years!”

  If a commentator begins with the premise that certain biblical heroes can do no wrong, he must necessarily find fault with those who have been killed or otherwise punished by the hero. This variation on the “blame the victim” defense recurs in the story of Job and among some traditional commentaries. Job’s friends are certain he must have sinned to have been punished so harshly. Traditional commentators argue that even Bathsheba’s husband—who was sent to the front to die so David could marry Bathsheba—must have done something quite awful to deserve the horrible treatment he received at the hands of the hero David. This sort of backward thinking leads to the belief that all disasters are the fault of the victims. Patrick Buchanan once said that AIDS is God’s revenge on homosexuals, while an ultra-Orthodox rabbi insisted that the Holocaust was God’s way of punishing pork eaters.

  Some contemporary commentators go so far as to argue that it is forbidden to criticize any of the great biblical figures. One must always find virtue in their actions. One talmudic sage actually says that “whoever suggests that David sinned [with Bathsheba] is mistaken.” Several years ago a fight broke out in Israel’s Knesset, when a Labor minister suggested that David’s action had been less than pure. Nachmonides rejects this hagiographic approach and declares that “Abraham our father sinned a great sin unwittingly, that he brought his righteous wife to [the brink of] the stumbling block of sin because of his fear lest he be killed.” But even those traditional commentators most willing to criticize biblical heroes always find some mitigation. Rabbi Shlomo Riskin, a contemporary modern Orthodox biblical commentator, places the views of Nachmanides in an acceptable religious context:

  [Nachmanides] may very well have believed that it is only when we can identify with the personalities of the Bible, when we see them as great human beings but human beings nonetheless, who grapple with—and sometimes even fail in their effort to overcome—the very same problems and blandishments which assail our every step, that we can truly utilize them as models and learn from their experiences. …

  Indeed, it is difficult to read the pages of the Bible in accordance with the “literal meaning of the text” and not come to the conclusion that our Torah pictures its heroes and heroines as complex human beings, rising to great spiritual heights and descending to jealous hatreds, prone to sin, but always with the element of spirituality which enables them to rise above their weakness and accomplish great things; it is their very struggle which m
akes them worthy of our veneration and makes possible their emulation. 7

  Rabbinic commentators observe that “the greater a person is, the greater is his Yetzer hara” (evil instinct), and his greatness is shown by overcoming it. 8 Psychologist David Rapaport related the following contemporary midrash on this topic from the life of Moses. Before being afflicted with the plagues, Pharaoh sent his royal painters to create an accurate portrait of his enemy-to-be. He then gave the portrait to his royal phrenologists so that they could assess his strengths and weaknesses. After examining the portrait, they concluded that Moses was a weak and vain man, who would easily be intimidated and flattered—that he was no match for Pharaoh. After Moses proved that he was more than a match, Pharaoh ordered his painters and phrenologists to appear before him. “Either the portrait was inaccurate or the interpretation was wrong,” he bellowed. When Moses next appeared to demand the release of the Jews, Pharaoh asked him to determine whether it was the painters or the phrenologists who were wrong and must die. Moses said both were correct: “I am a weak and vain man. Those are my inherent characteristics. But I have struggled mightily to overcome them.”

  The concept of the flawless biblical hero who can do no wrong and whose victims deserve their punishment is inconsistent both with real life and with the Jewish Bible. The Pentateuch, like all great literature, recognized that no human being is perfect. This recognition is one of the reasons why the Five Books of Moses have been so enduring and influential. Biblical heroes make mistakes; they succumb to human passions; they violate rules and commandments; often they try to rationalize, deny, or cover up their sins and crimes. But the Bible does not airbrush the blemishes of its heroes. Like Oliver Cromwell’s portrait painter, it depicts its subjects “warts and all.” The Jewish Bible is not hagiography, despite efforts by some defense lawyer commentators to make it such.