The Genesis of Justice

by Alan M. Dershowitz

  Those commentators who assume that the victims of Simeon and Levi’s murderous revenge necessarily deserved what they got send a terrible message about justice. The message is that right and wrong are a matter of status rather than action: If the actor is of a certain status—patriarch, son of a patriarch, prophet, king, or other hero—then it follows that his actions must be justified, regardless of how unjust they may appear to be (this is ever truer of God Himself, who surely can do no wrong). It is the job of the defense lawyer commentator to figure out why—not whether—the actions of such elevated beings were justified. The corollary, of course, is that if the hero does something terrible to a nonhero, the latter must have deserved it.

  The status approach to justice has been pervasive throughout history and certainly not limited to Jews or biblical commentary. “The king can do no wrong” was a principle of common law. Status-bound justice has often been used against “the Jews” or against individuals of Jewish heritage. Early Christian theology argued that the victimization of Jews—by crusades, inquisitions, pogroms, or discrimination—was always justified by the dual collective sins of deicide and rejection of Christ. To the Nazis, everything done by a Jew was bad. Even in modern Poland it is said that if something bad has happened, “there must be a Jew behind it.”

  It is an imperative of justice that culpability be based on a fair assessment of the actions and intentions of individuals, regardless of their status. Those commentators who can see no evil in the actions of biblical heroes undercut justice. We must be open to the possibility that the victims of Simeon and Levi’s treacherous massacre were as innocent as the Jewish victims of collective revenge over the centuries. We should not search for—or manufacture—rationalizations to justify so brutal a mass murder. Nor should we be satisfied with Jacob’s tactical rebuke of his vengeful sons. If the biblical narrative is to serve as a teaching tool of justice, we must condemn Simeon and Levi’s mass murder on moral grounds, while perhaps understanding the passions that led them to impose such disproportionate and collective revenge.

  The Bible certainly understands the inherent human passion for vengeance. In one of the most subtle and innovative ideas of the subsequent law books, God commands Moses to “appoint . . . cities of refuge . . . that the manslayer who killed any person by accident may flee into.” 9 Murderers were not entitled to such refuge from the “blood avenger,” but accidental killers were entitled to protection until passions cooled. The Bible thus recognizes that the passion for revenge may be just as great against the accidental killer as against the premeditated murderer. To the dead victim’s family, there may be very little difference. Their loved one is dead, and the person who caused his death is guilty and deserves to die. I hear that cry often when I try to argue that a killer should be found guilty of manslaughter rather than murder. I will never forget a case in which my client, a woman, shot her husband and was convicted of murder. I argued on appeal that his history of abusing her warranted a reduction to manslaughter. When I finished my argument, an older woman came over to me and pulled out a picture: “This is my son who I will never see again because of your client. She should suffer like I must.” I understand why the victim’s relatives are outraged at my effort to mitigate the crime that robbed them of a loved one. To understand, however, is not necessarily to justify. The Bible tries to protect the less culpable killer from the understandable passions of the blood avenger by allowing the killer to seek refuge in a designated place for a specified period of time. If the killer leaves the city of refuge and the blood avenger “finds him” and slays him, “there shall be no blood-guilt upon him.” The Bible recognizes that an avenger who kills “while his heart is hot” is not as culpable as one who kills in cold blood. 10 This insight, which becomes a basic tenet of the subsequent law books of the Bible, derives from the narratives of Genesis, which feature cold-blooded, hot-blooded, and lukewarm-blooded killings.

  The mass murder of the clan of Hamor by Dina’s brothers fits somewhere between hot-blooded revenge and cold-blooded deterrence. On the one hand, the brothers were understandably outraged by the crime against their maiden sister. On the other hand, what they did required a carefully planned subterfuge involving one of the most sacred rituals of Judaism—circumcision. (One midrash goes so far as to suggest that their actions have made it more difficult for potential converts to trust in the good faith of Jews who require circumcision as a condition of conversion.) 11 Moreover, there are ambiguities in the biblical narrative about precisely what had been done to Dina and what her own wishes were. Like so many of the women of Genesis, Dina remains entirely silent during the ordeal.

  It is not surprising that we never hear from the rape victim herself, since during biblical times—and for centuries thereafter—rape was considered primarily a crime against the father, husband, or fiancé of the raped woman. 12 The Bible provides that “if a man finds a virgin who is not betrothed and lays hold of her and lies with her,” his punishment is to pay the father fifty shekels and to marry the virgin and never divorce her. 13 The reason for this punishment is that the man, by deflowering the woman, has “damaged” the “goods” of the father, thus making his daughter less valuable as a commodified bride. The rapist must make the father whole by paying him money and relieving him of the burden of an unmarriageable daughter. 14 Paradoxically, however, according to the Bible the rapist must be punished because he “humbled” the woman. (The Hebrew word for “humbled” is ena, which comes from the same root as the word used to describe what Shechem did to Dina: va yehaneha.)

  Lest there be any doubt who the real victim of rape is in the Bible, compare the punishment for raping an unbetrothed virgin—fifty shekels and permanent marriage—to that for raping a betrothed virgin: death. The betrothed virgin herself is also put to death unless she cried out, because if she submitted without protest, she is deemed to have consented, thus offending her betrothed.

  Nor did this male-centered attitude toward rape die an easy death. As recently as 1964, the Georgia Supreme Court characterized rape as a crime against “the most precious attribute of all mankind”—the “purity” of woman, which is “soil[ed] for life” by rape. 15 In 1992 an Ohio court quoted a 1707 case describing “adultery [as] the highest invasion of [a husband’s] property.” 16

  It is against this patriarchal background that the ambiguity of the Shechem-Dina encounter must be understood. Some of the commentators divide the initial blame between Shechem and Dina. As one midrash puts it:

  While Jacob and his sons were sitting in the house of learning, occupied with the study of the Torah, Dinah went abroad to see the dancing and singing women, whom Shechem had hired . . . in order to entice her forth. 17

  Thus in one sentence the Jewish men are presented as scholars, the Gentile man as a manipulative seducer, and the Jewish woman as an easy mark.

  Dina is faulted by some of the rabbis for going “out” of the confines of her father’s tents. One rabbinic sage suggests that she went out “adorned like a harlot.” 18 Others argue that if she had “stayed home,” the way women are supposed to, “nothing would have happened to her.” 19 “But she was a woman,” a mid-rash explains, “and all women like to show themselves in the street.” 20

  For whatever reason, Dina did not stay home and something did happen to her. Precisely what happened to her is the subject of much dispute among commentators. Most agree that the initial encounter was forced upon her against her will. Rashi says she was sodomized. 21 Ibn Ezra says it was “natural” sex, but she was “afflicted” because she was a virgin. There are even suggestions that she was a consenting partner but that the brothers still blamed the man for damaging her worth to their father. Whatever the nature of the initial encounter, the mutuality of the subsequent relationship is even murkier. We know how Shechem felt about Dina: He loved her and was willing to do anything in order to marry her. We also know he spoke to Dina “comfortingly” and that she was ensconced in his home. But because Dina never speaks, we can o
nly surmise her feelings toward the man who initially humbled her, then spoke to her comfortingly and eventually underwent circumcision in order to marry her. The word “comfortingly” is an interactional adverb, suggesting that Dina was comforted by Shechem’s words, but her reaction is never made explicit. A particularly disturbing midrash says that “when a woman is intimate with an uncircumcised person, she finds it hard to tear herself away!” 22 This early example of penis envy suggests that Dina did want to remain with Shechem, but not necessarily because of his comforting words alone.

  The image of a rapist trying to comfort his victim is a common one today, particularly in the context of acquaintance rape. Speaking comfortingly can be an effective tactic designed to prevent the victim from calling the cops. We know that batterers often speak comfortingly to their victims, promising never again to strike them, only to see the cycle continue. It is certainly possible that Dina was not comforted by what she perceived as a tactic. On the other hand, Shechem’s rape of her may have reflected his own clan’s primitive courting ritual—a violent and sexist practice all too common throughout history. Perhaps he had truly come to love Dina and had succeeded in comforting her, despite the initial outrage. We don’t know, because we never hear Dina’s voice.

  It is not clear whether Shim’on and Levi knew—or even cared about—their sister’s attitude toward Shechem. When Shechem took their sister without the permission of the men who owned her, their honor had been offended. Much depends, of course, on these unknowns. If the brothers were rescuing an unconsenting sister from forced marriage, that would be one thing. If they were kidnapping her from the man she loved and killing that man and his entire clan in the process, that would be another thing entirely.

  All the Bible tells us is that the brothers resented the implication of any deal being made under which a rapist marries his victim and the victim’s family obtains material remuneration. “Should our sister then be treated like a whore?” they ask rhetorically. But it is the Bible itself that treats an unbetrothed rape victim in this manner. What the clan of Shechem proposed in the Dina narrative is very nearly what the law books of the Bible later decree: payment to the rape victim’s father and marriage to the rape victim.

  Why should the clan then be punished by mass murder for offering to do what the Bible would later mandate? Moreover, these same brothers who were outraged that their sister was treated like a commodity later treat their own brother in much the same way, selling him into slavery. A midrash on Jacob’s blessing of his sons recognizes this inconsistency:

  After Reuben had had his “ears pulled” thus, he retired, and Jacob called his sons Simon and Levi to his side, and he addressed them in these words: “Brethren ye were of Dinah, but not of Joseph, whom you sold into slavery. The weapons of violence wherewith ye smote Shechem were stolen weapons, for it was not seemingly for you to draw the sword.” 23

  Another example of the Bible speaking in different voices is provided subsequent to the Dina narrative in the deathbed testament of Jacob, in which the patriarch alludes to the earlier events:

  Shim’on and Levi,

  such brothers,

  wronging weapons are the ties-of-kinship!

  To their council may my being never come,

  in their assembly may my person never unite!

  For in their anger they kill men,

  in their self-will they maim bulls.

  Damned be their anger, that it is so fierce!

  Their fury, that it is so harsh!

  I will split them up in Yaakov,

  I will scatter them in Yisrael. 24

  The fact that their rebuke comes at the end of Jacob’s life—after the passions of his daughter’s rape and his sons’ revenge have cooled—gives added significance to Jacob’s condemnation of vigilante justice. Nevertheless, the tribes of Simeon and Levi prosper, with the Levites becoming the holy priests.

  The narrative is thus a Rorschach test to be interpreted anew by every generation, consistent with its experiences and needs. In fact, the Dina narrative—most particularly the relative guilt and innocence of the avenging brothers—has been subjected to very different interpretations over time. In the biblical period, when clan violence and retaliation were the norm, the actions of Simeon and Levi were praised as demonstrations of strength. In subsequent generations, when rules of law and process began to emerge, Jacob’s rebuke became more prominent. Then, when intermarriage became a major concern, the narrative was interpreted as a condemnation of intermarriage. The fact that Shechem raped Dina was less opprobrious than the fact that he then tried to marry her. 25 In the post-Holocaust era there was a return, among some, to praising Simeon and Levi for taking the law into their own hands: “A pronounced revisionist strain in postwar Biblical scholarship suggests that Simeon and Levi, rather than Jacob, are the ‘real heroes’… precisely because they picked up their swords and made war on Shechem to vindicate their sister’s defilement.” 26 Simeon and Levi are the “real heroes” because their “idealistic and uncompromising stance makes them the most intricate, colorful and attractive characters in the story.” 27

  Not surprisingly, zealots have cited the story of Dina to justify utterly reprehensible actions, such as Baruch Goldstein’s murder of twenty-nine Muslims at prayer in Hebron. Similarly, it has been cited by Muslim and Christian extremists in support of their murderous actions. 28

  Today, some feminists point to the Dina story as speaking with a different voice about the horrors of rape than the subsequent law books of the Bible. Without justifying the mass murder of the entire clan, they praise Dina’s brothers for at least understanding the humiliation of rape better than those who later punished it by a fine paid to the “real” victim—the father.

  Therein lies both the glory and the danger of morally ambiguous biblical narrative. Because of its open-textured quality, it endures from generation to generation, taking on new meaning as historical experiences change, and inviting continuing reassessment of its implications. By the same token, because it is subject to multiple—often conflicting—interpretations, the biblical narrative can be cited by the devil, or at least his human counterparts, to justify the most evil of deeds.

  1. Only two brothers, Shim’on and Levi, actually do the killing.

  2. On his deathbed, Jacob is far more reproachful of Shim’on and Levi: “Their weapons are tools of lawlessness…. [W]hen they are angry they slay men” (49: 5-7).

  3. Except in a listing of descendants (46:15). A midrash has her becoming Job’s second wife. Ginzberg, vol. 2, p. 226.

  4. Kugel, James, The Bible as It Was (Cambridge, Mass: Harvard University Press, 1977), p. 233. Genesis 49: 5-7.

  5. Rashi and Ibn Ezra avoid the difficult issue, since they generally limit themselves to interpretation (pshat).

  6. See Deuteronomy 22:28-29.

  7. See Riskin, Shlomo, Confessions of a Biblical Commentator (Ohr Torah Institutions, 1997), pp. 12-13.

  8. Chasam Sofer, Bereishis, p. 256.

  9. Numbers 35: 9-34.

  10. Deuteronomy 19:6.

  11. Midrash Rabbah, vol. 2, p. 953, n. 2.

  12. The voice of women is all too rarely heard in the Bible. A contemporary midrash, in the form of a fascinating novel, tells the Dina story from the point of view of the woman involved. Diamant, Anita, The Red Tent (New York: St. Martin’s Press, 1997).

  13. Deuteronomy 22: 28-29. The Bible draws a distinction between a betrothed woman who has sex with another man “in the city” and “in the field.” The former, who could have cried, is complicit; the latter, who could not have been rescued even if she cried out, is not. Deuteronomy 22: 23-27.

  14. See Hauptman, Judith, Rereading the Rabbis: A Woman’s Voice (Boulder, Colo.: Westview, 1998), pp. 77-82; Kirsch, Jonathan, The Harlot by the Side of the Road (New York: Ballantine, 1997), pp. 76-99.

  15. Sims v. Balkcolm, 136 S.E. 2d. 766.

  16. State v. Shane, 590 N.E. 2d 272 (1992).

  17. Ginzberg at p. 395.r />
  18. Quoted in Kirsch at p. 76.

  19. Ibid.

  20. Ginzberg at p. 395.

  21. In discussing Shechem’s love for Dina, the Torah uses the word “na’ar” twice. A na’ar is a boy. Thus the literal reading of the sentence is “And he loved the boy and he spoke comfortably unto the boy” (Genesis 34: 3). The editors of the Hebrew Bible regard this as a common transcription error and instruct the reader to “read it as ‘na’arah,’” the young girl. Perhaps this gender confusion is what led Rashi to speculate that Shechem had “unnatural” anal sex with Dina—as if she were a boy! Saperstein edition, the Torah, p. 383.

  22. Midrash Rabbah, vol. 2, p. 743. Maimonides makes a related observation: that one of the reasons why Jews are circumcised is to reduce their sex drive. See Stern, Josef, Problems and Parables of Law (Albany, NY: SUNY, 1998), pp. 88-91.

  23. Ginzberg, vol. 2, p. 142.

  24. 49: 5-7.

  25. See Kugel, James, The Bible as It Was (Cambridge, Mass.: Harvard University Press, 1997), pp. 237-39.

  26. Kirsch at p. 95.

  27. Meir Sternberg as quoted in Kirsch at p. 96. A midrash compares the Dina story to the Book of Esther, suggesting that the clan of Hamor was planning to kill the Jews, who acted in preemptive self-defense (Ginzberg at p. 399).

  28. Recently an ultra-Orthodox rabbi in Israel cited approvingly the story of the biblical religious zealot Phineas, who murdered two lovers in cold blood because one of them was not Jewish (Numbers 25: 6-9). The rabbi’s words were understood by some as justifying the murder of intermarried couples by “real” Jews. See Kirsch at p. 91.