The Genesis of Justice

by Alan M. Dershowitz

  I declared to God: You wish me to repent of my sins, but I have committed only minor offenses: I may have kept leftover cloth, or I may have eaten in a non-Jewish home, where I worked, without washing my hands.

  But you, O Lord, have committed grievous sins: You have taken away babies from their mothers, and mothers from their babies. Let us be quits: May You forgive me, and I will forgive You.

  The great rabbi looked at the tailor and replied: “Why did you let God off so easily?” 7 It is this argumentative tradition that Abraham initiated when he challenged God’s justice toward the Sodomites.

  Abraham’s argument with God raises one of the most troubling and recurring issues of theology: Can God’s justice be judged by human beings according to standards of human justice? If not, by whom and by what standards can God’s justice be evaluated? The alternative is to assume—tautologically—that whatever God does, regardless of how unjust it may seem to us, is by definition just. Whatever God commands must be done without question or challenge. This would imply that humans should learn about justice from God’s actions—even if we don’t understand or agree with them. But what are we to learn from the flood, the binding of Isaac, the Job story, and the Holocaust? We cannot abdicate our own human responsibility to define justice in human terms. Such an approach is the first step on the road to fundamentalism. The Sodom narrative appears to reject the fundamentalist approach and to suggest that God has submitted Himself to at least some human judgment through the covenant.

  The story begins with a soliloquy in which God explains why He is going to tell Abraham about His plans to destroy the sinning cities. Abraham’s destiny is to teach the world to “keep the way of God, to do what is right and just.” Abraham understands his role, but when God announces His plans, Abraham immediately sees a conflict: If he “keeps the way of God,” he will not “do what is right and just,” because God is Himself planning to do something terribly unjust. So Abraham challenges God in the terms of His mandate: “The judge of the earth—will He not do what is just?” Abraham’s idea of what is just must necessarily reflect his own human standards of justice, under which only the guilty are punished. God could easily have responded by saying: “How dare you challenge My concept of justice? You cannot understand My ways. You cannot judge divine justice by human standards.”

  The God of the Book of Job responds in precisely that manner when Job refuses to accept the injustice that God inflicts on him and his children. It is instructive to contrast the learning God of Abraham with the more certain God of Job. Job’s God rebukes His challenger, asking rhetorically:

  Where were you when I laid the foundations for the earth? … Do you understand the laws which govern the heavens? … Would you go so far as to undermine My judgment, put Me in the wrong so that you might be right? Do you have strength comparable to that of God? Can you, like He, produce the thunder’s clap?

  In other words, the God of Job pulls rank on His human challenger. His answer is simply a function of His power. To borrow a wonderful line from a Ring Lardner story: “‘Shut up,’ he explained.” And Job does more than merely shut up. He submits to God’s bullying tactics: “I can understand nothing,” he apologizes. “It is beyond me. I shall never know.” In bending to God’s one-upmanship, Job gives up his own ideas of justice, which—on their own merits—are far more persuasive than God’s. Job, after all, is absolutely innocent, yet God allows Satan to inflict on him and his family the worst sorts of punishment. What kind of a God would test a just person by deliberately killing his ten children? Even the traditional commentators recognize the killings were unjust. Accordingly, one of them comes up with an ingenious interpretation under which God did not authorize the actual killing of Job’s children. He simply authorized Satan to hide them during the test so that Job would believe that they were dead; God then returned them (and more) after Job passed the test. Others argue that Job was not an actual historical person, merely a literary construction. After all, he did live in the land of Oz! *

  But Job—whether actual or fictional—believed that God had killed his innocent children and quite properly challenged God’s justice. Job’s arguments are compelling, but he surrenders them when God appears from out of the whirlwind and invokes His superior power. Job loses the argument not on the merits, but rather by default. It is not a debate; it is an arm-wrestling contest. Job responds to God’s show of force by denying his own intellect—“I can understand nothing. It is beyond me. I shall never know.” Job the dissident 8 thus becomes Job the fundamentalist. By invoking His power instead of His reason to respond to Job’s entirely legitimate question, the God of justice becomes the God of power.

  It is difficult to imagine a greater injustice than seeing an all-powerful being kill your innocent children and then having Him rebuke you for questioning the morality of His actions. If the classic definition of chutzpah is to murder your own parents and then demand mercy because you’re an orphan, then the classic definition of tyranny is to kill a person’s children and demand that he humbly accept this injustice as fair. The Book of Job endures as a great work despite, not because of, God’s response in the final chapters. It is the deep human arguments of Job and his friends about the suffering of good people that have resonated for centuries with those who have witnessed and experienced injustice, and not God’s muscle-flexing and unsatisfying response. Ultimately God wins the argument with Job not because He is right, but because He is God. This is reminiscent of what lawyers often say about Supreme Court justices: Their judgments are binding not because they are right; they are right only because their judgments are binding. We, the readers, learn absolutely nothing about the nature of justice from God’s peremptory response to Job’s probing questions. The God of Job is about as informative as a drill sergeant who barks, “Do it because I say so,” or a parent who replies, “Because I’m your parent, that’s why!”

  In my view, the God with whom Abraham argues is far more interesting and a much better teacher. He accepts Abraham’s challenge in Abraham’s own human terms. In doing so, God understands that pulling rank—invoking naked power—is not an effective pedagogical device. God’s invitation to “reason together” 9 is a far better technique, designed to foster a human process for achieving justice, rather than a knee-jerk acceptance of superior orders. The God who invites Abraham to argue with Him about justice is a God who encourages rational discourse. The God who rebukes Job for trying to understand an obvious injustice is a God who promotes unthinking fundamentalism. One of the beauties of the Bible is that even its God speaks in different voices over time.

  Biblical commentators have sought to reconcile the reasoning God of Abraham with the peremptory God of Job. One distinction is that Abraham was party to a covenant with God. Job was not. Job is not identified as a Jew in the Bible. He was, of course, subject to the Noachide laws, but he was not a beneficiary of the same sort of broadly binding mutual covenant as the one between God and Abraham. It did not include the right to argue back. Abraham’s covenant bestows a unique bundle of obligations and rights, including the right to challenge the other Party to keep His promise. Job had no such right. His relationship with God was that of subject to autocrat. Job must know his place—as a subordinate who dares not question his master’s justice. Job is rebuked precisely for purporting to argue with God as an equal:

  “Should the King be accused of wantonness … ?” “It is sacrilege to ascribe injustice to the Almighty. … ” 10 “Would you undertake to declare the Most Righteous at fault?” 11 “Who has ever said to Him, ‘You have acted unjustly’?” 12

  Job, who remains silent in the face of these rebukes, could easily have appealed to precedent, reminding God of what Abraham had said. Why then did Job not invoke the precedent of Abraham in response to God’s pointed question “Who has ever said to Him, You have acted unjustly?” 13 Perhaps Job took the question to be rhetorical, or maybe he realized that because he did not have a covenant with God, his relationship to the Almi
ghty was not one of citizen to constitutional monarch; it was of subject to absolute ruler. God engages in dialogue only with those who are His covenantal partners. With others, like Job, He simply acts, orders, and expects complete subservience, obedience, and acceptance.

  In most religions, the autocratic God of Job prevails over the dialogic God of Abraham, for the simple reason that the endemic injustice of the real world can never be explained in human terms. I do not think that the awful injustices that have afflicted innocent human beings over the millennia—from the flood to the Crusades to the plagues to the Holocaust—can be justified even in divine terms, but that is a claim that can never be substantiated, since we, as humans, are capable of thinking only in human terms. If the tragedies and cataclysms of the world can never be explained by God in ways understandable to humans, what’s the use of dialogue with the divine? In the end God will have to say, as He did to Job, You cannot understand my ways. In other words, God did not answer Job’s question about why the righteous suffer and the unrighteous prosper because there is no adequate answer. God simply points to the marvels of creation and remains silent about the inadequacy of His justice. It is easier to create a physical universe than to assure justice. If there were a world to come, He could have referred to reward and punishment after death. Instead He leaves it to others—particularly Elihu—to make the case for the justice of His actions. Since God Himself cannot defend the injustice of the world, He must leave that task to others—who can argue, as God cannot, that only God understands the apparent injustice of the world. Yet even if we cannot fully understand apparent injustice, we have an obligation to argue against it, as Abraham, Job, and their intellectual progeny have tried to do.

  To accept the conclusion of the Book of Job that God’s justice is not subject to human understanding is to abdicate all human judgment about God’s actions and to accept the injustices of our world (as Ecclesiastes seems to do). Anything that God does is by definition just, even if it is something as awful as the Holocaust. Taken to its logical conclusion, this would mean that everything that happens is just, leading inexorably to the naturalistic fallacy that confuses what is with what ought to be. I cannot imagine a possible meaning of “justice” that could include the Holocaust, and it is not surprising that this inexplicable catastrophe shook the faith of so many erstwhile believers. 14 In the wake of the Holocaust, it is more difficult to shrug one’s shoulders and sigh that God works in mysterious ways. Nor can plausible explanations be offered that do not unfairly demean the victims. When an ultra-Orthodox rabbi blamed the Holocaust on Jews who ate pork, he was roundly and appropriately condemned.

  The Holocaust simply cannot be explained away as an example of God’s justice that we, as humans, cannot understand. 15 Many victims want no part of a God who would regard the Holocaust as just—even in His own terms. Jacob was prepared to cancel his grandfather’s covenant if God did not deliver him safely to his father’s house; surely a believer who saw his entire family murdered by the Nazis has the right—indeed, the obligation—to wonder if the God he believed in is a God of justice.

  Abraham’s defense of Sodom and Gomorrah teaches us that silence in the face of injustice—even God’s injustice—is a sin. This view would later be made explicit in the verse “Thou shalt not stand idly by the blood of thy neighbor.” 16 It takes courage to rail against injustice; it takes great courage to rail against a king’s injustice; it takes the greatest courage to rail against God’s injustice—especially if you believe in God’s omnipotence. If people are to preserve their faith in God, they need a God with whom they can argue and remonstrate, as Abraham did in the Sodom narrative—in the strongest of terms and without pulling any punches. 17 Maybe that is why the Jews, who have suffered so much, have chosen (or been chosen by) a God with whom they can at least argue, rather than the more peremptory God who reprimands Job. The God who is sued by Rabbi Levi Yitzchak of Berditchev is Abraham’s God, not Job’s. The God who endowed kings and emperors with the divine authority never to be wrong is closer to Job’s God.

  Now, back to Abraham’s legal argument with God. The standard translations do not do justice to Abraham’s rebuke of the God with whom he had just made a covenant. Here is what Abraham says:

  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?

  Abraham’s powerful language and his use of the term “sweep” would seem as much directed toward the past flood as toward His intended destruction of the two cities. A midrash worries that some might say that it is God’s “trade to destroy the generations of men in a cruel manner,” pointing to the flood along with other destructions. 18 Rashi explicitly refers to the parallel of the flood:

  It would be a “profanation” (chullin) of Thee, in that men would say, “It is His wont to destroy the righteous and the wicked without discrimination. He did so to the generation of the Flood, and to the generation of the dispersal of races, and now He does so again?” 19

  It is interesting that the text of the narrative never explicitly says that God told Abraham that He definitely intended to destroy the cities. It simply says that the sin of these cities is “exceedingly grievous” and that God was going to “descend and see” and perhaps destroy (calah). Rashi interprets God’s personal visit as a means of teaching that a judge must not give a verdict in a criminal case based on hearsay evidence. He must see for himself. It is also another hint that the God of Genesis is not necessarily omniscient: He must actually observe before He can know for sure. God then asks Himself: “Shall I hide from Abraham that which I am doing?” Abraham quickly figures out what God is up to. He remembers what God did to the sinners of Noah’s generation. So he assumes—correctly, it turns out—that God is at it again. He’s going to destroy the innocent along with the guilty, just as He did in the flood. Will He never learn?

  Abraham realizes that the only way to get God’s attention is to upbraid Him in the strongest terms. So he uses the Hebrew term “chalila Lekha,” which the translators render as “heaven forbid” or “far be it from you.” But the word “chalila” is not nearly so polite. It comes from the Hebrew root for “profane.” It would be profane of you—cursed of you, unkosher of you 20 —to kill the righteous along with the wicked. (Ironically, Elihu—God’s defender in Job—uses the same word, “chalilah,” in rebuking Job: “It is sacrilegious to ascribe injustice to the Almighty” [34:10]. Yet that is precisely what Abraham did—at least in hypothetical terms.) Remarkably, God agrees with Abraham’s argument, in effect acknowledging the profanity of His bringing the flood, which did “sweep” away many righteous along with the wicked. He accepts Abraham’s argument and agrees to save the entire city, provided a certain number of righteous people can be found in it.

  There is an obvious logical inconsistency in Abraham’s argument. God could simply destroy the city and save the fifty righteous people. That would satisfy the premise of Abraham’s rebuke about killing the righteous along with the wicked. But Abraham asks God to save the entire city—including the vast majority of wicked—for the sake of the fifty righteous. Illogical as it is, God goes along with this demand. This leads Abraham to engage in a typical lawyer’s argument: Having convinced his adversary to accept the principle, Abraham nudges Him down the slippery slope. He asks God: What if there are only forty-five righteous people, would you destroy the whole city for the lack of five? Pretty clever. Then he asks the same question of forty, thirty, twenty, and ten. 21 This kind of argument is reminiscent of the quip attri
buted to George Bernard Shaw, who once asked a beautiful actress if she would sleep with him for a million pounds. When she said that of course she would sleep with him for one million pounds, Shaw replied, “Now that we’ve established the principle, we can haggle over the price.”

  God surely saw the flaw in Abraham’s advocacy. He could have responded, “Look, Abraham. You accuse me of overgeneralizing—of sweeping along the righteous with the unrighteous. And you have a point. But you’re guilty of the same thing: You are sweeping the wicked along with the righteous, and giving them a free ride. If I find fifty—or forty or even ten—righteous, I will spare them. You’ve convinced me of that. But why should I spare the wicked just because there happen to be fifty righteous people in their city?”

  Instead God accepted Abraham’s moral argument but eventually rejected its empirical underpinnings. God did not find a sufficient number of righteous people to spare the city, so He simply spared the handful of good people He did find, namely Lot’s family—which was in many ways akin to Noah’s family. 22 They were certainly not perfect, as it turned out, 23 but they were far better than their contemporaries and townsfolk. The important point is that God permitted Abraham to argue with Him on moral grounds, and although He eventually went through with the plan to destroy the city, He was persuaded by Abraham’s moral argument. 24 It was more than a Pyrrhic victory, since it established an enduring principle of justice.