The Genesis of Justice

by Alan M. Dershowitz

  My own favorite interpretation of God’s failure to carry out His first threat is that God Himself was still learning about justice and injustice. The text of Genesis supports the view of an imperfect, learning God. When He creates, He stands back in wonderment and, like a human artist looking at a canvas, observes that His creations are “good,” thus implying it might have turned out otherwise. An omniscient and omnipotent God would have no need to look back at what He knows will always be perfect. Later He repents the creation of man, in effect conceding that this particular creation was not so good. 22 As we will see in subsequent narratives, this is a God capable not only of “repenting,” but also of being persuaded by humans and of learning from His own divine mistakes. Perhaps He realized that He was wrong to threaten immediate death as a consequence for the desire to obtain knowledge. God should have realized that His test of Adam and Eve was really a “catch-22.” Had the humans remained obedient, they would have been barely distinguishable from the beasts—hardly a fitting status for those created in God’s image. By disobeying God’s unfair prohibition, however, they became the original sinners whose punishment would be transmitted from generation to generation. God’s first command is an example of law without reason—chok. God never sought to explain to Adam why he had to refrain from eating the fruit of knowledge. On the contrary, His command defies reason, since it is entirely natural for humans to seek knowledge, especially when it is so pleasant to taste and easy to secure. It is not surprising, therefore, that God’s first command is disobeyed. Perhaps God learns an important lesson from His initial failure as a lawgiver: Humans are more likely to obey reasoned rules consistent with their nature than arbitrary dictates that fly in the face of everything human beings are about. Perhaps God’s initial command necessarily had to be a chok, since humans lacked the knowledge presumed by reasoned orders. Once Adam and Eve ate of the fruit of knowledge they became subject to rule by human reason. Similarly with young children who lack reason, a parent’s earliest commands must necessarily be chukim, which gradually evolve into mishpatim as children develop their ability to understand rather than simply obey. Parents are sometimes slow to recognize that reasoned orders, when age appropriate, tend to be more effective than authoritarian commands. Instead some become too comfortable with the power to issue unreasoned dictates. Martinet judges never seem to understand this reality of human nature: They become furious when people disobey their commands, even if the command itself is not substantively important. “Because I said so,” is the common refrain. Contempt of court is the sanction for disobeying even a trivial order of a judge. I have seen judges impose harsh punishments for minor violations of their orders, citing the “majesty of the law” or “the dignity of the court.” A wise judge often backs away from his initial threat, realizing that the violation does not really warrant the threatened punishment.

  If God Himself realized He was wrong to threaten the harsh punishment of immediate death, then perhaps He became more understanding of the sin of Adam and Eve. I offer a contemporary midrash on this issue. A friend of mine who is a federal judge had to sentence a woman to prison on a Monday. He was bound by the sentencing guidelines that mandated imprisonment, despite the fact that she was a first-time offender whose boyfriend had enticed her to transport his drugs. On Sunday the judge was home taking care of his toddler. The judge inadvertently forgot to lock his front door and the child wandered into the street, where a truck barely missed running him over. The judge realized that he had made a terrible mistake and that he had been given a second chance. The next day he refused to sentence the woman to prison, saying that she too had made a mistake and was entitled to a second chance. Perhaps I ought not to analogize a federal judge to God, although lawyers have long joked that when God has delusions of grandeur, he sometimes acts as if He were a federal judge.

  God, like some parents and judges, finds it less difficult to threaten than to carry out His threats, especially one that would destroy what He created. Moreover, in the case of Adam and Eve, there was a mitigating circumstance: The serpent did, after all, beguile Eve, who in turn enticed Adam. We see here the first excuse in the Bible. There are many more to come.

  Finally, maybe God realized that He was acting out of self-interest in denying to those He had created in His own image the most important aspect of that divine image, namely the continuing quest for greater knowledge. A midrash states that the serpent told Eve that God Himself “ate of this tree” and “hates to have a rival in His craft.” 23 The God who threatened Adam is Himself an ever-learning God, not a statically omniscient Being Who knows everything there is to know from the very beginning. Perhaps the command to forbear from eating the forbidden fruit was a test of Adam and Eve’s willingness to obtain knowledge even if it required transgression. Recall that God gave Adam and Eve an opportunity to explain their actions before imposing punishment: “What is this that you have done?” Some commentators point to this to support the idea that every person has the right to a defense. A midrash, however, notes that the serpent was given no opportunity to defend his actions and from this concludes that the wicked deserve no defense. Since “the wicked are good debaters,” the serpent would have argued: “Thou didst give them a command, and I did contradict it. Why did they obey me, and not Thee? Therefore God did not enter into argument with the serpent.” 24 Not a particularly compelling point, since the midrash seems to assume that God would lose the argument to a snake! I guess even the writers of this midrash had some doubts about God’s omniscience.

  In any event, if Adam and Eve had explained that they believed themselves entitled to knowledge, even at the risk of disobeying their Creator, God might have responded differently—perhaps more leniently, perhaps more harshly—to a principled act of disobedience. I recall a case at Harvard where a student altered his transcript in order to be admitted, claiming that he wanted to obtain the knowledge that comes with a Harvard education. The administration board was not sympathetic to his argument.

  The novelist Philip Roth wrote that “without transgression there is no knowledge”—suggesting that all true knowledge requires rule breaking. 25 Perhaps God was simply warning human beings of the double-edged nature of knowledge and of its potential—if misused—to destroy humankind. Maybe God decided to wait and see what Adam and Eve—and their descendants—did with that knowledge: whether they used it for good or for evil. Only then could God decide whether or not Adam and Eve did the right thing or—if they did the wrong thing—how serious their crime was and whether His initial punishments were sufficient. We know from contemporary experiences that knowledge itself is neutral, whether it be knowledge of nuclear physics, genetic engineering, computer science, or anything else. It is how we use this knowledge that really matters.

  The subsequent story of the Tower of Babel supports this interpretation. God saw nothing wrong with all people speaking the same language—and thus increasing their knowledge by communication—until they misused this important tool by working together to build a tower that reached the heavens. The midrash says that “the enterprise [of building the tower] was neither more nor less than rebellion against God.” 26 It was only then that God confounded their language, thus reducing their ability to share knowledge.

  As the builders of Babel learned, humans must not use their knowledge to break down the barriers between man and God. Adam and Eve were expelled from Eden to prevent them from becoming like God—knowledgeable and immortal. In building the Tower of Babel, their descendants were once again seeking to use their knowledge to close the distance between the human and the divine by ascending to the heavens. They were trying to circumvent God’s decision to deny humans access both to the Tree of Knowledge and the Tree of Eternal Life. God responded by making the sharing of information more difficult. From now on human beings would speak different languages, not only making the gathering of knowledge a slower process, but allowing wisdom—which takes longer to acquire—to accompany knowledge.

  The s
tory of the Tower of Babel can be seen therefore as a parallel to the story of the forbidden fruit. Both involve the inherent human need to increase knowledge. In both instances humans push the envelope beyond the boundaries acceptable to God. The consequences in each case can be viewed as self-fulfilling prophecy: Now that Adam and Eve have eaten from the Tree of Knowledge, humans have the intelligence necessary to improve or destroy the world.

  So too with the tower builders and their descendants: If they use their collective intelligence without foresight, wisdom, and moral constraint, they may well succeed in producing apocalypse, thus merging our earthly world with God’s heavenly domain.

  For whatever reasons God decided not to punish Adam and Eve with the instant death He had expressly threatened, He conveyed a confusing message to future sinners. One of the insights Adam and Eve gained from eating of the tree is that God does not always carry out His threats—that sin (and crime) is not always followed by the threatened punishment. Such knowledge can be quite dangerous. 27 The serpent told them God was bluffing, they called God’s bluff, and God backed down—at least to the degree that He did not kill them immediately. No wonder God did not want them to gain this knowledge. He would henceforth have a hard time enforcing His commandments. In fact, God’s mixed message about the wages of sin may well have contributed to the Bible’s first murder.

  1. This and all quotations from Genesis are taken from The Five Books of Moses, trans. Everett Fox (New York: Schocken Books, 1995).

  Genesis 2:16-17. The Bible begins with creation, and man appears only on the sixth day. Many midrashim have been written about the first five days, but there is a tradition prohibiting speculation on what came before “the beginning.” “You may speculate from the day that days were created, but you may not speculate on what was before that” (Midrash Rabbah, vol. 1, p. 9). In support of this view, it is observed that the first letter of the Bible is a beth—the Hebrew equivalent of “b” or “beta”—whose shape is open in the front and closed at the back, thereby signifying open inquiry about what happens after creation but a closing of all inquiry as to what took place before. Notwithstanding this tradition, there has always been speculation as to the universe b’terem kol—before everything.

  2. A midrash interprets the repetition of “die” to mean that not only would Adam die, but his descendants would also die (Midrash Rabbah, vol. 1, p. 131).

  3. “surely eat …doomed to die. The form of the Hebrew in both instances is what grammarians call the infinitive absolute: the infinitive immediately followed by a conjugated form of the same verb. The general effect of this repetition is to add emphasis to the verb, but because in the case of the verb ‘to die’ it is the pattern regularly used in the Bible, for the issuing of death sentences, ‘doomed to die’ is an appropriate equivalent” (Robert Alter, Genesis, p. 8, notes 16-17).

  4. In I Kings 2:42 Solomon says to Shimei that “on the day thou goest out [of Jerusalem] thou shalt surely die.”

  5. Midrash Rabbah, vol. 1, p. 154.

  6. See Kugel, James, The Bible As It Was (Cambridge: Harvard University Press, 1997), pp. 67-71; and Ramban, Commentary on the Torah, Genesis (New York: Shilo, 1971), p. 74. Rashi avoids the issue.

  7. See Rashi and also Midrash Rabbah, vol. 1, p. 150. Ginzberg, p. 72, A Midrash asks where Adam was during this conversation. It answers: “He had engaged in intercourse and fallen asleep.”

  8. The New Catholic Encyclopedia, p. 779; The New Schaff-Herzog Encyclopedia of Religious Knowledge, p. 443.

  9. This banishment also seems to contradict the notion that Adam and Eve were originally created to be immortal and that God carried out his threat of death by denying them eternal life as a punishment for disobeying his prohibition against eating of the Tree of Knowledge.

  10. Elon, Menachem, Jewish Law (New York: Matthew Bender, 1999) at pp. 175-76.

  11. He kills Nadav and Avihu without fair warning. He punishes Moses without fair warning. Moreover, in the Ten Commandments He is explicit that His punishments will be imposed on the innocent children, grandchildren, great-grandchildren, and even great-great-grandchildren of sinners (Exodus 20:5).

  12. Rabbi Simon ben Yochai manages to find a “hint” of the hereafter even in this verse, interpreting “return” to mean “thou shalt go to the dust, yet thou shalt return—at the resurrection” (Midrash Rabbah, vol. 1, p. 169).

  13. See Chapter 13. p. tk

  14. See Amram at p. 21.

  15. Midrash Rabbah, vol. 1, p. 150.

  16. Midrash Rabbah (Bereshith, p. 149).

  17. New York Times, June 10, 1998, p. 1.

  18. See Amram at pp. 28-29.

  19. Twersky at p. 78.

  20. See Twersky at p. 250. A midrash speculates that Eve was Adam’s second wife. His first, Lilith, “remained with him only a short time because she insisted upon enjoying full equality with her husband” (Ginzberg at p. 65). Recently a fundamentalist Christian publication, published by Jerry Falwell, condemned the use of the name Lilith by a concert organizer, arguing that Lilith was a “demon.” See Boston Globe, June 25, 1999, p. A23.

  21. Quoted in Gillman at p. 44.

  22. 6:6.

  23. Bialik and Ravnitsky, The Book of Legends, p. 20.

  24. Ginzberg, p. 77.

  25. Roth, Philip, American Pastoral.

  26. Ginzberg at p. 179.

  27. The knowledge that sin is not always followed by punishment can also be uplifting, allowing people to refrain from sinful acts simply because they are wrong. See pp. 108-9.

  CHAPTER 2

  Cain Murders—and Walks

  It was, after the passing of days

  that Kayin [Hebrew for Cain] brought, from the fruit of the soil, a gift to YHWH [Hebrew for God],

  and as for Hevel [Hebrew for Abel], he too brought—from the firstborn of his flock, from their fat-parts.

  YHWH had regard for Hevel and his gift,

  for Kayin and his gift he had no regard.

  Kayin became exceedingly upset and his face fell.

  YHWH said to Kayin:

  Why are you so upset? Why has your face fallen?

  It is not thus:

  If you intend good, bear-it-aloft,

  but if you do not intend good,

  at the entrance is sin, a crouching demon,

  toward you his lust—

  but you can rule over him.

  But then it was, when they were out in the field

  that Kayin rose up against Hevel his brother

  and he killed him.

  YHWH said to Kayin:

  Where is Hevel your brother?

  He said:

  I do not know. Am I the watcher of my brother?

  Now he said:

  What have you done!

  A sound—your brother’s blood cries out to me from the soil!

  And now,

  damned be you from the soil,

  which opened up its mouth to receive your brother’s blood from your hand.

  When you wish to work the soil

  it will not henceforth give its strength to you;

  wavering and wandering must you be on earth!

  Kayin said to YHWH:

  My iniquity is too great to be borne!

  Here, you drive me away today from the face of the soil,

  and from your face must I conceal myself,

  I must be wavering and wandering the earth—

  now it will be

  that whoever comes upon me will kill me!

  YHWH said to him:

  No, therefore,

  whoever kills Kayin, sevenfold will it be avenged!

  So YHWH set a sign for Kayin,

  so that whoever came upon him would not strike him down.

  Kayin went out from the face of YHWH

  and settled in the land of Nod/Wandering, east of Eden.

  Kayin knew his wife;

  She became pregnant and bore Hanokh.

  Now he became the builder of a city

  and
called the city’s name according to his son’s name, Hanokh.

  GENESIS 4:3-17

  The Bible’s first sin seems trivial to the secular mind, especially in light of the threatened punishment. Eating forbidden fruit is, at worst, a sacred misdemeanor, much like a Jew eating unkosher food or a Catholic eating meat on Friday—when that prohibition was still on the books. I am reminded of a New Yorker cartoon following the Catholic Church’s change of position on this issue. An assistant devil asks Satan: “Now what do we do with all the people who are here for eating meat on Friday?” The essence of the crime of eating forbidden food is disobeying God’s command, not the inherent nature of the substantive violation. A midrash characterizes the first sin as “violating a light command,” 1 though Christianity regards it as original sin.

  The second sin, however, was an aggravated felony by any standard. Cain murdered his younger brother and then tried to cover it up. His motive was petty jealousy over God’s unexplained preference for Abel’s offering. Yet despite the severity of his crime, God is relatively soft on Cain. God does not impose proportional punishment. Instead He makes him a fugitive and a wanderer. Being excluded from the clan could, of course, carry serious consequences in primitive society, since it returned the excluded person to the state of nature and exposed him to the elements as well as the animals. (This may explain Rashi’s interpretation of “the mark of Cain” as restoring the fear of Cain in animals.) Even in early England, being denied the protection of the “king’s peace” was dangerous. But at least there was a chance of survival by the resourceful outsider. It was not capital punishment.

  Like most criminal defendants, Cain whines about his sentence: “My iniquity is too great to be borne!”