The Genesis of Justice

by Alan M. Dershowitz

  All flesh shall never be cut off again by waters of the Deluge,

  Never again shall there be Deluge, to bring earth to ruin!

  GENESIS 9:1-11

  Like most rulers who are soft on crime and unhappy with the results, God overreacted and swung the pendulum in the opposite direction. We have seen this happen repeatedly in our own world: In the 1960s enforcement of drug laws was lax; the death penalty seemed a relic of the past; prison terms for violent crimes were shrinking. Then the public and politicians began to rail against rising crime rates. The response was draconian drug laws, dramatic increases in capital punishment, and an exploding prison population. In the early days of humankind God too saw “evildoing.” His response was to be “sorry” that He made human beings—in the words of our translation—and to kill everyone in the world, except for one family, that of the righteous Noah.

  Before we get to the injustice of such mass murder, we should pause to consider the concept of a God who is “sorry” about or “repents” His own creation, because He is surprised at what those He created are doing. The midrash describes God declaring that the creation of humans out of earthly elements was “a regrettable error on My part.” 1 Quite an admission for a God! Can such a God be omniscient? 2 If so, He should have known what He was doing when He created man whose “every form of their heart’s planning was only evil all the day.” A midrash compares God to a baker who has made bad dough: “How wretched must be the dough when the baker himself testifies it to be poor.” Another analogizes God to a planter of trees who knows that someday, he will have to cut them down. But God is not a fallible baker. Nor are people trees. God is supposed to be omnipotent and omniscient. Yet even He was surprised by the human capacity for evil and thus decided to destroy not only all the people He created, but also all the animals, birds, and fish. 3 God’s fit of pique seems more characteristic of an adolescent in a schoolyard who not only quits a basketball game when he’s losing, but takes the ball home as well. In this case, however, God was playing with more than a basketball, and creators do not simply have the right to destroy the human life they have created. Parents may not kill their children just because they turn out bad. A just being can’t destroy and start from scratch, even if He is God. Saving one family doesn’t solve the moral problem. God would seem to have been obligated to work with what He had created. Yet the Bible makes no reference to any ameliorative steps God might have taken in an effort to improve human beings before killing them all. Maybe a code of laws. Perhaps a few examples of proportional public punishment. God could at least have tried something more humane before He lashed out so promiscuously at all living beings. But no. God moved directly from inconsistent and infrequent punishment to total destruction, thus setting a terrible example for lawmakers that has, unfortunately, been followed throughout history.

  What is the message we are supposed to take from this display of naked, uncalibrated power? We know that God is capable of bringing floods—any second-rate God can do that! But why is this God incapable of a rational, proportional, and individual response to evil? Why must He destroy with so broad a brush? There are few satisfying responses to this question among the commentators.

  Again, there is the “just so” story explanation: There may actually have been a flood in the Near East that wiped out much of human and animal life in the region. Many ancient cultures include accounts of a huge and destructive flood. 4 This terrible event became part of the consciousness and tradition of the biblical writers. A religious explanation was necessary; hence the story of Noah’s Ark. As anthropological history, this sort of folktale is understandable. As part of a narrative of divine justice, it cries out for further normative explication.

  The traditional commentators focused on several possible justifications: first, the flood was delayed punishment for Cain’s murder of Abel. If so, such a punishment would truly be unjust, for the guilty murderer himself becomes a builder of cities and is allowed to live a long, successful life, while his descendants—the innocent along with the guilty—are killed en masse several generations later. Second, there was what can best be characterized as the “eugenics” argument, namely that “the divine beings”—whoever they were—had taken “the human women” as wives and procreated with them. There is also a reference to “the giants” (nephilim) who were on the earth in these days. Some have speculated—despite any scientific support—that this bizarre reference may represent a deep, past, collective memory of a time when early Homo sapiens roamed the earth alongside late Neanderthal man or other primitive beings. In any event, God needed to “cleanse” the earth of such overpowering hybrids, if humanity was to thrive. Any such eugenic solution obviously required the destruction of innocent babies along with guilty adults, but it sounds indefensible to the contemporary ear.

  A midrash analogizes the flood to a natural “epidemic [which] visits the world [and] which slays both good and bad.” 5 But the flood was not an epidemic; it was a deliberate punishment inflicted by God. 6 Some commentators claim that God did, in fact, give the people a warning and an opportunity to repent. According to this interpretation, God’s reference to the days of man being 120 years is a veiled threat: Humans have 120 years to shape up or God will destroy them. A variation on this argument holds that Noah tried to get his fellow humans to stop their violence. Only when he failed did God carry through with His threat to “blot out humankind.”

  The defense lawyer commentators reject the possibility that God’s destruction of the entire world was unjust. God’s justice is a constant with these commentators; everything else is variable. 7 But the God of the Jewish Bible is a learning God as well as a teaching God, and perhaps He was wrong in flooding the world. He seemed to have acknowledged His error by “repenting” his decision to destroy the world just as He had earlier “repented” His decision to create man.

  When God made His covenant with Noah after the flood, He promised never again to bring any floods to destroy the world. Yet He knew that people would turn bad again. Indeed, He expressly promises never to “curse the soil again on humankind’s account, since what the human heart forms is evil from its youth” (8:21). Nevertheless, He absolutely precluded Himself from bringing another flood. This certainty suggests that God may have realized He made a mistake, one He did not want to repeat. When God saw how evil man could be, He had a shock of self-realization: He had created this evil creature in His very own image, so maybe He too has the capacity to do evil—a capacity He must learn to control. Like a person who understands that he needs to make a public promise in order to control his destructive instinct, God bound Himself never to flood the earth again. Even God needs rules.

  After the flood God did what He should have done before He killed everybody: He enacted a code of laws that explicitly punished murder by death. “Whoever now sheds blood, for that human shall his blood be shed.” By doing so, God recognized that the evil inclinations of human beings can be controlled, or at least in part by law. From now on God would deal with evil in a more calibrated and individualized manner, rather than by indiscriminate destruction. Moreover, His laws would grow out of the experiences of both man and God, rather than mere fiat. Man would now understand the need for law, as a result of seeing the consequences of lawlessness.

  The image of a God who teaches not only by His successes but also by His failures is an appealing one. Every good teacher knows that acknowledging mistakes and learning from them is an excellent pedagogical technique—better in many respects than pretending to be all-knowing or perfect. In my initial year as an assistant professor, I asked a first-semester student a question about a judge’s instructions to the jury in a case we were studying. He gave me a perplexed look and stammered unresponsively. I then realized that I had made a mistake in framing the question—I had assumed the case had been tried to a jury, when in reality it had been tried to a judge. I immediately acknowledged my faux pas. From that point on, the class was much more relaxed and open. Students were more w
illing to risk being wrong now that their professor had acknowledged making a mistake. For several years thereafter I deliberately repeated my mistake.

  An important part of the wonder of the Jewish Bible, and especially of Genesis, is the imperfection of every character in the drama, including the One who plays the leading role. The Jewish God is great and powerful, but even He is not perfect—at least not in the beginning.

  For those who believe that God must be perfect, there is a religiously correct variation on this argument: The perfect God understands that in order to be a good teacher, He must appear to humans to be an imperfect, learning God, open to mistake, argument, persuasion, and repentance. So He speaks in the language of man, “repenting” His creation. 8 We will soon see that He is willing to argue with a mere mortal and even be bested in debate with His creatures. A God who can admit that His mind has been changed by mere humans is a truly great teacher. Those of us who try to be good teachers can learn a great deal about pedagogy from the ever-learning God of Genesis.

  The story of the flood, therefore, is the story of God’s overreaction to evil; His failure to deal with it in a just manner; His eventual realization that He did wrong; His promise not to make the same mistake twice; and His enactment of a legal code to punish individual wrongdoing. Indeed, God’s learning—and teaching—process continues in the next episode of the Bible, when God seems to backslide and Abraham teaches Him an important lesson about the individualization of justice. The teacher becomes the student and the student the teacher. After all, somebody had to straighten God out about justice before matters really got out of hand.

  1. Midrash Rabbah, vol. 1, p. 221.

  2. This question is raised in the midrash by a Gentile and answered evasively. Midrash Rabbah, vol. 1, p. 222.

  3. The midrash justifies even the killing of the animals on the ground that they too had engaged in copulation with different species. Midrash Rabbah, vol. 1, p. 228.

  4. The Akkadian and Babylonian civilizations also depict a great flood in their respective histories. Oxford Dictionary of World Religions (New York: Oxford University Press, 1997), p. 349.

  5. Midrash Rabbah, vol. 1, p. 214.

  6. A divine punishment can, of course, take the form of an epidemic or plague, as it did in Pharaoh’s day. But if it were punishment, as distinguished from a natural phenomenon, it would raise the same moral questions. The flood, as deliberate punishment, is indistinguishable from the fire and brimstone threatened against Sodom and Gomorrah that Abraham protested. God did not make any analogy to an epidemic in that instance. He acknowledged that it would be unjust to sweep away the innocent along with the guilty.

  7. Compare Rabbi Levi Isaac of Berditchev. There is also a tradition suggesting that Noah was wrong for not arguing with God—as Abraham subsequently did—about his plans to destroy the world. Bodoff, Lippman, “The Real Test of the Akedah: Blind Obedience Versus Moral Choice,” Judaism 42 (winter 1993): 74-75.

  8. In the Book of Job, God says that Satan “incited Him against Job.” Maimonides interprets this divine variation on “The Devil made me do it” excuse—as another example of God speaking in the language of man. See Job 2:3-5, Art Scroll edition, Miesorah Publications (New York, 1994), pp. 22-23.

  CHAPTER 4

  Abraham Defends the Guilty—and Loses

  Now YHWH had said to himself:

  Shall I cover up from Avraham [Hebrew for Abraham] what I am about to do? For

  Avraham is to become, yes, become a great nation and mighty [in number],

  and all the nations of the earth will find blessing through him.

  Indeed, I have known him,

  in order that he may charge his sons and his household after him:

  they shall keep the way of YHWH,

  to do what is right and just,

  in order that YHWH may bring upon Avraham what he spoke concerning him

  So YHWH said:

  The outcry in Sedom and Amora—how great it is!

  And their sin—how exceedingly heavily it weighs!

  Now let me go down and see:

  if they have done according to its cry that has come to me—destruction!

  And if not—

  I wish to know.

  The men turned from there and went toward Sedom,

  but Avraham still stood in the presence of YHWH.

  Avraham came close and said:

  Will you really sweep away the innocent along with the guilty?

  Perhaps there are fifty innocent within the city,

  will you really sweep it away?

  Will you not bear with the place because of the fifty innocent that are in its midst?

  Heaven forbid for you to do a thing like this,

  to deal death to the innocent along with the guilty,

  that it should come about: like the innocent, like the guilty, Heaven forbid for you!

  The judge of all the earth—will he not do what is just?

  YHWH said:

  If I find in Sedom fifty innocent within the city,

  I will bear with the whole place for their sake.

  Avraham spoke up, and said:

  Now pray, I have ventured to speak to my Lord,

  and I am but earth and ashes:

  Perhaps of the fifty innocent, five will be lacking—will you bring ruin upon the whole city because of the five?

  He said:

  I will not bring ruin, if I find there forty-five.

  But he continued to speak to him and said:

  Perhaps there will be found there only forty!

  He said:

  I will not do it, for the sake of the forty.

  But he said:

  Pray let not my Lord be upset that I speak further:

  Perhaps there will be found there only thirty!

  He said:

  I will not do it, if I find there thirty.

  But he said:

  Now pray, I have ventured to speak to my Lord:

  Perhaps there will be found there only twenty!

  He said:

  I will not bring ruin, for the sake of the twenty.

  But he said:

  Pray let my Lord not be upset that I speak further just this one time:

  Perhaps there will be found there only ten!

  He said:

  I will not bring ruin, for the sake of the ten.

  YHWH went, as soon as he had finished speaking to Avraham, and Avraham returned to his place.

  GENESIS 18:17-33

  Several generations after promising Noah that he would never again destroy the world by flood, God reneged on His promise. He decided to destroy the cities of Sodom and Gomorrah by hail and brimstone. To be sure, these two cities are not exactly the whole world, and hail and brimstone is not quite a flood. But God didn’t seem to get the principle behind his promise to Noah. He was relying on a technical distinction that undercut the policy against mass destruction. Rabbinic commentary recognizes this with a midrash elaborating on Abraham’s argument: “You swore that You would not bring a flood upon the world again…. A flood of water You won’t bring, but a deluge of fire You would bring? Would you with subtlety evade Your oath?” 1 Abraham challenges God, and politely but firmly he tries to set His creator straight. Hence the powerful story of Abraham’s argument with God.

  What gives Abraham the “right” to argue with God and question his intentions? The answer must lie in the unique relationship between God and His people. The relationship between God and the Jewish people is covenantal—that is, in the nature of a legally binding contract. As one commentator has put it: “God is transformed from an ‘absolute’ into a ‘constitutional’ monarch. He is bound, as man is bound, to the conditions of the constitution.” 2 There are certainly examples in contemporary life of parents making contracts with their children: allowance in exchange for tasks; rewards for good grades. There are even instances in history of slaveholders contracting with slaves: freedom after x number of years of servitude. But a contract between th
e Creator and those He created? What a remarkable notion! This theme of mutually obligatory contract resonates through much of Jewish history, prayer, literature, and even song.

  God makes a covenant first with Noah, then with Abraham, and then again with Jacob. Noah never invokes it. Abraham does, reminding Him of His promise to do justly. 3 Abraham’s grandson Jacob goes even further in a subsequent story, explicitly making his acceptance of God conditional upon God satisfying His end of the deal: “If God be with me, if He protects me on this journey that I am making, and gives me bread to eat and clothing to wear, and if I return safely to my father’s house—then God shall be my God.” 4 (An earlier variation on my youthful “deal” with God to be more religious in exchange for a Dodger world championship.) Some commentators (such as Rabbi Abahu) tried to deny the conditional nature of Jacob’s promise. But others (such as Rabbi Yochanan) interpreted it as it was written: “If all the conditions that God promised me … are fulfilled, then I will keep my vow.” 5 The conditions are, in fact, met and Jacob keeps his vow. A model of contractual compliance—at least for a time.

  A contract bestows rights on both contracting parties. The Jewish people have the right to insist that God keep His side of the bargain forever—or at least explain why He has not done so. Throughout Jewish history—from the destruction of the Temples, to the Crusades, to the Inquisition, to the pogroms, and especially to the Holocaust—Jews have been demanding an answer from their contracting partner. It has rarely been forthcoming, but we persist.

  The very word “chutzpah”—which I took as the title for one of my books and which means “boldness,” “assertiveness,” a “willingness to challenge authority”—was first used in the context of demanding that God keep His side of the covenant. It appears in the Talmud 6 as part of the Aramaic expression chutzpah k’lapei shemaya—chutzpah even against heaven. Abraham was the first to demonstrate such chutzpah, but surely not the last. The most famous postbiblical exemplar of chutzpah against heaven was the eighteenth-century Hasidic master Rabbi Levi Yitzchak of Berditchev, who repeatedly invoked God’s contract in challenging God’s injustice toward his covenantal partners. On one occasion he threatened to expose God’s promises as “false.” On another he sued God and threatened to refuse to cooperate with plans to keep the Jewish people in exile. On one Yom Kippur, a simple tailor sought forgiveness from the great rabbi for having talked disrespectfully to God. The rabbi asked him what he had said, and the tailor told him: