It is the genius of Genesis that it mirrors so closely the history of civilizations in the days before the development of formalized legal systems. It shows us a world without law, but not an entirely lawless world. In one sense, Genesis is the beginning of the common law of justice—a series of ad hoc commands, threats, punishments, rewards, tests, reprisals, blessings, curses, bargains, promises, deceptions, turnabouts, consequences, and life stories, which, when taken together, form the basis for many of the rules that became codified in the subsequent books of the Bible. Virtually all of the large jurisprudential underpinnings of these later rules can be discerned in the Book of Genesis. The themes of justice that permeate the legal codes of Exodus, Numbers, and Deuteronomy are all suggested in Genesis through the vehicle of narrative, rather than rules. As we will see in the next chapter, the narratives of Genesis are essential to explaining and justifying the subsequent rules of law.
1. I do not intend here to enter into a detailed substantive debate over the issue of natural versus positive law. To the extent natural law serves as a check on positive law, it is unexceptionable. Jewish law provides that positive rabbinical enactments cannot be expected to endure if they defy the deeply felt needs of the community.
2. Schulweis, Harold M. For Those Who Can’t Believe (New York: HarperCollins, 1994), pp. 105-108.
3. See 134 Cong. Rec. S 15669-01 (10.13.88); 138 Cong. Rec. S 10876-01 (7/10/92); 132 Cong. Rec. H 6679-02 (9/11/86); 136 Cong. Rec. S 5186-01 (4/27/90).
4. Gomes, Peter J. The Good Book: Reading the Bible with Heart and Mind (New York: HarperCollins, 1994), pp. 105-108. Portions of the Bible have also been cited as proof texts on issues as far-ranging as Onanism, abortion, slavery, women’s rights, gun control, and war and peace.
5. Even the earliest hints of procedural safeguards can be discerned in God’s giving Adam, Eve, and Cain an opportunity to defend their actions—and in telling both Noah and Abraham of His plans for punitive destruction. See Rashi, Genesis 3: 9.
6. The Harvard philosopher John Rawls has constructed a theoretical “veil of ignorance” to assure that rules of law do not depend on one’s station in life. The veil of ignorance may be defined in the following terms:
[A]ll the “players” in the social game would be placed in a situation which is called the “original position.” Having only a general knowledge about the facts of “life and society,” each player is to make a “rationally prudential choice” concerning the kind of social institution they would enter into contract with. By denying the players any specific information about themselves it forces them to adopt a generalized point of view that bears a strong resemblance to the moral point of view. “Moral conclusions can be reached without abandoning the prudential standpoint and positing a moral outlook merely by pursuing one’s own prudential reasoning under certain procedural bargaining and knowledge constraints” (http://caae.phil.cmu.edu/CAAE/Home/Forum/meta/background/Rawls.html). See Rawls, John, A Theory of Justice (Cambridge: Belknap Press of the Harvard University Press, 1999).
7. Matthew 5:17.
8. See Maimonides’s 13 principles in Twersky, Isadore, A Maimonides Reader.
9. Maimonides, introduction to the Mishnah Torah, pp. 1-16.
10. But see Job.
11. Once the Torah was given at Sinai, Jews were instructed to obey its written terms and not to listen to contradictory voices from heaven, from prophets, or even from God Himself. Hence the story of the rabbis arguing about the oven.
12. Kierkegaard, Soren, Fear and Trembling (Princeton, NJ: Princeton University Press, 1945), p. 83.
13. See Maine, Sir Henry Sumner, “Movement from Status to Contract,” Ancient Law (New York: Scribner, 1867), p. 165.
14. Matthew 5:17-18: “Do not think that I have come to abolish the law or the Prophets; I have not come to abolish them but to fulfill them.”
15. Genesis 4:15.
CHAPTER 12
Why Does the Bible Begin at the Beginning?
I recall one of my rabbis in yeshiva asking the class a question that seemed ridiculous—a real klutz kasha! He asked us, “Why does the Bible begin with the story of creation?” The answer seemed obvious: “Why not begin at the beginning? Isn’t creation the logical starting point?” The rabbi replied that the Torah was a law book, not a history book, and law books should begin with the first laws.
The rabbi’s question was not original to him. Rashi, among the most authoritative commentators on Jewish sources, poses it in his very first commentary on the Bible: What is “the reason” that the Torah “begins with Genesis”? Since the Torah is the law book of the Jewish people, the logical starting point would be the First Commandment in the Book of Exodus, 1 rather than the story of creation. Rashi observes that “it was not necessary to begin with the creation” and wonders why God made that choice. 2 Rashi then provides an entirely unconvincing and somewhat chauvinistic answer to his own question:
It began thus because it wished to convey the message of the verse, “The power of His acts He told to His people, in order to give them the estate of nations.” So that if the nations of the world will say to Israel, “You are bandits, for you conquered the lands of the seven nations who inhabited the Land of Canaan,” [Israel] will say to them, “The whole earth belongs to the Holy One, Blessed is He. He created it and He gave it to them, and by His wish He took it from them and gave it to us.”
This answer is unconvincing for several reasons: First, there are plenty of other stories throughout the Bible that provide justification for Israel’s right to live in the Holy Land. Second, Rashi’s own question is really broader than why the Jewish law book begins with the narrative of creation. Implicit in that question is the deeper question of why a law book should include any stories at all, instead of simply being a compendium of the rules. Why, for example, should it include the long lists of “begats” or the other stories—from the flood, to the binding of Isaac, to the Jacob and Joseph narratives, to the death of Moses? Rashi does not answer that question.
Let me propose an answer that addresses both the narrow question of why the Torah begins with creation and also the broader question of why, if it indeed is a law book, it includes so much narrative, especially in Genesis and the first part of Exodus.
It is precisely because the Torah is a law book that it should include stories that illustrate the need for laws and rules. As I will show in the final chapter, the entire book of Genesis and the first part of Exodus can be viewed as the narrative prelude to the Ten Commandments and the laws that follow the revelation at Sinai. Even after the laws are given, the narrative continues, the experiences change, and the law continues to develop.
Oliver Wendell Holmes taught us that the life of the law has been experience, not logic. So too the laws of the Bible were based, at least in part, on the experiences of the people to whom they were given. Without knowing about these experiences, we find it difficult to understand the law. That is why the narratives of Genesis had to precede the law books of Exodus, Leviticus, Numbers, and Deuteronomy. (The first part of Exodus continues the narrative of Genesis, culminating in the revelation. Thereafter the narrative continues, interspersed with laws.) Just as experience must precede law, so too must narrative precede codification. The genius of the Bible, at least from the perspective of a law teacher, is its integration of narrative and rules and its use of memory to bring home the moral component of the laws. “Do not oppress the stranger, since you understand the soul of the stranger, because you were strangers in the land of Egypt” 3 is perhaps the paradigm of such experiential codification. The theme of memory pervades the Bible and its commentaries.
Had the Torah—the great law book—simply begun with a list of rules, the reader would wonder about the basis for the rules. Some of them appear eminently logical, but the others cannot be understood without reference to the experience of the Jewish people.
The Bible is the first law book to integrate narrative and law. Previous law codes, such as Hammurabi’
s and Lipit-Ishtar’s, simply presented a compendium of rules, without historical explanation or moral justification. Other early narratives, such as Homer’s, simply presented the stories, without accompanying rules. The Bible is different. Most of the laws of the Bible develop organically out of the narratives and are justified by reference to the experiences of its protagonists. There is a genre of nonjustified laws, called chukkim, which are seen as testing faith, but these are the exception. It should not be surprising that the God of the Bible justifies most of His laws rather than merely declaring them. After all, this is a God who enters into covenants with Noah, Abraham, Jacob, Moses, and the Jewish people. He is also a God who allows humans to argue with Him and sometimes even to succeed in persuading Him to change His mind. As we have seen, He is a “constitutional monarch” rather than an autocrat, and His subjects are entitled to seek reasons for the laws they are told to obey.
Some biblical scholars and historians of ancient law have noted the uniqueness of the Bible in justifying its laws. They note the prevalence in the Bible of “clauses” that give reasons for the laws, such as the passage cited earlier about treating strangers fairly because “you were strangers” and “the seventh day is the Sabbath …, for in six days the Lord made heaven and earth.” 4 In the Ten Commandments alone there are several such clauses using the words “because” (ki), “that” (lema’an), “lest” (pen), or “therefore” (al ken). Deuteronomy contains more than one hundred “motive clauses,” as these forms of justificatory language are called. Professor David Weiss Halivni, a leading contemporary Jewish scholar, explained that the prevalence of motive clauses demonstrates that “biblical law is not categorically imperative, that it [generally] seeks to justify itself.” He cites research contrasting these motive clauses of the Bible with other law books of the ancient Near East and concludes:
The motive clause is clearly and definitely a peculiarity of Israel’s or Old Testament law. 5
Professor Halivni argues that this need to justify law grows out of the character of the Jewish people. He writes about the natural reluctance of the “Jewish imagination” to “accept categorical law” 6 and claims that “Jews cannot live by apodictic [absolute, declaratory] laws alone,” since “making laws categorical leads to autocracy,” which Jews “instinctively reject.” 7 This emphasis on the natural and instinctive traits of Jews strikes me as a bit of a genetic and historical overgeneralization, but it is difficult to quarrel with Halivni’s observation that the biblical approach “expresses a basic trait of Jewish law, which tends to be justificatory (one could say ‘democratic’) to explain rather than to impose, as opposed to the autocratic attitude of the ancient Near East.” 8
Throughout history Jewish law has been characterized by its argumentative quality: The Talmud preserves dissenting views for posterity; 9 the midrash has people arguing with angels, angels arguing with God, and everybody arguing with each other; the pilpul—a talmudic variation on the Socratic method—knows no perfect answer. No wonder the Bible describes the Jews as a “stiff-necked” people. But there are countertrends as well throughout Jewish history, when Jews sought authoritarian rule from charismatic rabbis and military leaders. As might be expected, Jews have argued about these trends as well. 10
Whether it was the biblical method of justifying laws by reference to the narrative that caused Jews to become argumentative, or whether it was the argumentative nature of the Jewish people that caused the Bible to integrate the narrative into the laws, the end result has been the same: We have a Bible that is unique in its justification of the laws, and we have a people who are unusual in their reluctance to accept laws without reason. These are the seeds of democracy. 11
What distinguishes the Torah is precisely that it is a book of rules based on remembered experiences! That is why the Torah begins with wonderful stories—stories about fallible human struggles with jealousy, temptation, vengeance, lust, selfishness, and other vices in the absence of a formal legal system.
These open-textured narratives are susceptible to ever-changing interpretations. They invite dialogue and intellectual freedom. Again, like the open-textured phrases of the United States Constitution—due process, equal protection, cruel and unusual punishment, full faith and credit, and freedom of speech—the narratives of Genesis are designed to endure through the ages. The seventy faces of the Torah can never be reduced to a single religiously correct view. Yet throughout history it has not been the devil alone who has cited these stories in support of his ignoble ends. Virtually everyone—angels and mortals alike—have quoted the Scriptures. Throughout history politicians, church leaders, and others have pointed to particular biblical stories as proof texts for their agendas. Lenin quoted Exodus, as did the Puritans and African American slaves. None of them is demonstrably wrong. 12 None is exclusively right. The narratives of the Bible are not blueprints for liberalism, as some argue, or for conservatism, as others allege. 13 They provoke, challenge, and confront every orthodoxy: political, religious, social, economic, and legal. Simple as they appear, they raise the most profound issues of philosophy, theology, and jurisprudence. A good educator trapped with a group of students on a desert island with nothing but the Book of Genesis could teach wonderful courses on many subjects. In the next chapter we will focus on one of the transcendental questions raised by the Genesis narrative.
1. The first few commandments appear in the Book of Genesis (do not kill, be fruitful and multiply, circumcise males), but they are not deemed as authoritative as those that follow the revelation at Sinai. See Maimonides generally.
2. This question was first raised by a popular midrashic homily. For references to its original source, see Halivni, David Weiss, Midrash, Mishnah and Gemara (Cambridge, Mass.: Harvard University Press, 1986), pp. 9, 120.
3. Exodus 23: 9.
4. Exodus 20: 7.
5. Halivni, p. 13. In addition to the specific motive clauses, there are also general ones, such as the observation that man is made in the image or spirit of God and that Israel is a holy nation.
6. Ibid., p. 92.
7. Ibid., pp. 68, 91.
8. Ibid., p. 14.
9. In order “to provide the possibility for a future court to reopen the case” and to make sure that those who disagree with the majority realize that both views were considered (Halivni, p. 110).
10. Maimonides strongly believed in legal codification. In espousing this view, he was following the Mishnah, which was an early attempt at codification and which generally sought to state the law without long discursive justifications. Critics of this approach called its practitioners “destroyers of the world,” who “deprive students of the proper mode of studying Torah,” which is to “have the laws attached to the Bible (by way of Midrash) rather than to circulate them separately, as does the Mishnah” (Halivni, p. 62).
11. A legal system that sees the need to justify itself by reference to the experience of the people “signifies that it reckons with the will of the people to whom the laws are directed; it seeks their approval, solicits their consent, thereby manifesting that it is not indifferent to man” (Halivni, p. 14). This contrasts sharply with other ancient codes that reflect “no concern for the will of the people to whom the laws are directed. The laws are to be obeyed; they need not be understood. Motives are not necessary. The law’s authority is derived from the need to have law and order, and it is the king and his entourage who decide what law and order are; the people are not privy to that decision” (ibid.).
The uniqueness of the Bible lies in its invitation to “the receiver of the law to join in grasping the beneficent effect of the law, thereby bestowing dignity upon him and giving him a sense that he is a partner in the law” (Halivni, p. 14). Without recounting the experiences that gave rise to the rules, the Jewish book of laws would be like any other legal compendium.
12. Walzer, Exodus and Revolution (New York: Basin Books, 1985).
13. See Dershowitz, The Vanishing American Jew (Boston: Little, Bro
wn, 1997), pp. 276-80.
CHAPTER 13
Is There Justice in This World or the Next?
One of the oldest philosophical and theological dilemmas confronted by religious people is the problem of theodicy: Why do bad things happen to good people, and why do good things happen to bad people? 1 These questions, of course, present a dilemma only for people who believe in an intervening God who is omniscient, omnipotent, and just. As Billy Graham said in discussing John F. Kennedy Jr.’s tragic death: “God has a plan for every human being.” Believers in such divine planning must struggle with the apparent injustice of so many of God’s actions. For those who believe in no God, or in Aristotle’s nonintervening creator, 2 there is no problem of theodicy. The world is random and there is no reason why disease, natural disasters, wars, and other misfortune should not afflict the righteous as well as the unrighteous. To expect otherwise would be to ascribe moral order to physical chaos. Indeed, because bad people are often more aggressive and more selfish, it should follow that in a godless world, good things should happen to bad people and bad things to good people more often. To the extent that human beings seek to impose justice on a random world, they try to level the natural injustice by mandating—to the extent possible—rewards for good people and punishments for bad people. Ultimately, however, natural injustice seems to outpace human justice, and, on the whole, the world appears to be an unjust place. 3
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