The Genesis of Justice

by Alan M. Dershowitz

  The question remains, if Abraham’s moral argument was illogical, why did God accept it? Permit me to offer the following interpretation, building on the idea of a God who is teaching as well as learning in His interactions with His human creations.

  The text is clear as to why God decided to tell Abraham about His intentions in regard to Sodom and Gommorah: because God had selected Abraham as His messenger to “instruct” his descendants “to keep the way of the Lord in order to do justice and righteousness” (tzdakah umishpat). In other words, God’s encounter was to be a lesson for Abraham in the ways of human justice and righteousness. An omniscient God is, of course, capable of distinguishing the guilty from the innocent (though He hasn’t always acted on this distinction). Humans, however, cannot simply discern who are guilty and who innocent. We need a process—a legal system—to distinguish the innocent from the guilty. Nor is this a simple task. Inevitably human beings will make mistakes. We will sometimes convict the innocent and acquit the guilty. That is in the nature of any human fact-finding process.

  It is easy to assure that no innocent will ever be convicted, if that is the sole object: Simply acquit everyone about whom there is the slightest doubt as to their guilt, no matter how unreasonable. It is also easy to assure that no guilty person is ever acquitted, if that is the only goal: Simply convict everyone against whom there is even the slightest suspicion of guilt, no matter how farfetched. No system in history has ever managed to convict all of the guilty without also “sweeping along” some innocents. Every rule of evidence or procedure that makes it easier to acquit the innocent—for example, the “two witnesses” rule of the Bible—also makes it easier for some guilty people to escape justice. 25 Likewise, every rule that makes it easier to convict the guilty—for example, current reforms that no longer require “corroboration” of rape accusations—also makes it easier to convict some innocents. The difficult task is to strike the proper balance.

  In the end, every system of justice must decide which is worse: convicting some innocents or acquitting some guilty. Tyrannical regimes always opt for the former: It is far better that many innocents be convicted than that any guilty be acquitted. Most just regimes tend to opt for the latter: It is far better that some guilty go free than that innocents be wrongly convicted. This is the approach ultimately accepted in the Bible, with its generally rigorous safeguards for those accused of wrongdoing.

  In addition to deciding on this basic preference, every system of justice must also quantify—at least implicitly. The Anglo-American system, for example, has proclaimed that “it is better that ten guilty persons escape than one innocent suffer.” 26 That is surely an approximation, but it sends an important message: Our preference for not convicting the innocent is a very strong one, but it is not absolute; we acknowledge that in order to convict large numbers of guilty, we will sometimes have to convict an innocent. We will try our best to prevent such an injustice, but we will not simply acquit everyone in order to avoid it. This is the way a mature and just system operates.

  Although it appears from the language of the narrative that Abraham is teaching God a lesson about justice, it may well be that it is really God—the great pedagogue—who is teaching Abraham a lesson about the inherent limitations on human justice, so that Abraham could instruct his descendants to do justice in a mature and balanced fashion—rejecting both extremes of acquitting everyone about whose guilt there is any doubt and convicting everyone against whom there is any suspicion. By accepting Abraham’s moral principle—that a sufficient number of innocent people in a group requires the sparing of the entire group, including the guilty—God was teaching Abraham how to strike the appropriate balance. Since human beings are never capable of distinguishing precisely between the guilty and the innocent, it would be unjust to destroy a group that might contain as many as fifty innocents. The same would be true of forty-five, forty, thirty, twenty, and even ten. It would not be true of only one or two. It is significant that Abraham ends his argument at the number ten. Why did he not continue to try to bargain God down even further? After all, Abraham knew that there was at least one righteous person in Sodom—his own relative Lot. Yet he stopped at ten, thus achieving a moral victory but losing the case. Why? Some commentators suggest that Abraham knew that any number less than ten would not convince God, since Noah and his family num-

  bered eight, and they were not enough to spare the entire world from the flood. 27 But God had promised not to repeat the destruction He had wrought on Noah’s contemporaries, so this argument seems to lack persuasiveness. Others argue that since ten is the requirement for a minyan—a congregation—any less than that number is insufficient. But the traditional requirement for a minyan is ten men, and it cannot be justly argued that righteous women do not count when it comes to saving a community. A more rational and less sexist variation on this is that without a core number of righteous people, it will not be possible to influence the multitudes of wicked, as evidenced by Noah’s inability to change his generation of sinners. My own interpretation is simple. Ten, although an arbitrary number, suggests an approximate balance between convicting the innocent and acquitting the guilty. Without knowing the number of wicked people in Sodom, it is impossible, of course, to come up with a precise ratio. But the number ten, even standing alone, is neither trivial nor daunting. Since it is always possible that any substantial group of guilty people could include one or two innocents, selecting so low a number would make it impossible to construct a realistic system for convicting the guilty. But tolerating the conviction of as many as ten innocents would make any system of convicting the guilty unjust, or at least suspect. When the number of people on Illinois’ death row who were freed because of their possible innocence recently reached double figures, the public began to express concern. Seemingly, the execution of one or two possibly innocent people was not sufficient to stimulate reconsideration of the death penalty, but once the number climbed beyond ten,

  even many death penalty advocates began to question whether the system was working fairly. The Anglo-American ratio—better ten guilty go free than even one innocent be wrongly convicted—is also somewhat arbitrary, but it too uses the number ten in attempting to strike the proper balance.

  What we see, perhaps, is an extraordinary example of interactive teaching and learning. God is willing to accept Abraham’s rebuke—illogical as it may seem—in order to teach Abraham that he, a mere mortal, will need to construct a just and effective system for distinguishing between the innocent and the guilty. In the process God too may have learned that He has been insufficiently sensitive to the plight of the innocent who are swept along with the guilty.

  The story of Abraham’s argument with God has been particularly salient to me as a criminal defense lawyer. 28 I know that most of my clients are guilty of the crimes with which they are charged. I know this not because they tell me—very few confess to their lawyers (only one has ever confessed to me). I know it as a statistical matter, since the vast majority of people charged with crime in America, and in other democratic countries, are guilty. Thank goodness for that! Imagine living in a country where the majority of people charged with crime were innocent. That might be the case in Iraq, Iran, or China, but certainly not in any country with a relatively fair and nonrepressive legal system. So I can safely assume that my clients are no different from the statistical norm—a majority of them are guilty. If anything, my appellate clients are more likely to be guilty than those of a typical trial lawyer, since my clients have already passed through the most significant check on prosecutorial error or abuse—the trial. They have already been found guilty by a jury. Some of my clients have been innocent, but they were almost certainly in the minority.

  When I decide to take a case, I rarely know whether any particular client is among the guilty majority, the innocent minority, or somewhere in between. Were I to take the position—urged on me by many, including my mother—that I should represent only the innocent, I would proba
bly have taken fewer than a handful of cases over my thirty-five-year career. It is extremely rare that I know for certain that a prospective client is innocent. I have my suspicions (which sometimes have turned out to be mistaken—both ways). I can never, however, be certain. This is even more true at the beginning of my representation, when I know relatively little about the case. As time passes and I learn more, I often reach a more informed view. Even if I come to believe that my client is guilty, I cannot leave a case once I have undertaken the responsibility for completing it (unless the client violates certain rules), any more than a surgeon could abandon a half-completed operation upon learning that his patient was sicker than originally assumed, or a priest could walk out of a confession upon being told of sins he did not anticipate.

  I represent the probably guilty for several important reasons of principle. The first is that I, like all human beings, cannot always distinguish between the guilty and the innocent. If only those who were obviously innocent could get decent lawyers to represent them, many innocent clients would remain unrepresented by competent lawyers. I represent the probably guilty, therefore, in order to prevent injustice to the possibly innocent. This is in the tradition of the Sodom narrative, at least as I interpret it. I represent the probably guilty for the sake of the possibly innocent.

  Second, I represent the probably guilty to assure that the government is always challenged, that it never gets sloppy, lazy, or corrupt. If our legal system were ever permitted to act on the statistical assumption that the vast majority of defendants are guilty, then prosecutors would grow less careful about whom they charged with crime, and the statistics might become reversed, as it has in some autocratic regimes. Abraham understood how important it was to challenge authority, even divine authority. Although God was eventually able to carry out His plan against the sinners of Sodom, Abraham made it tougher for God. In the end many of my clients go to prison—thankfully none have ever been executed—but I try hard to challenge the government at every turn. In doing so, I’m following in the tradition of advocacy originated by Abraham.

  Third, I am a teacher, and I must teach by example. I cannot tell my students that they should represent defendants who may be guilty, but that I am too good for such dirty work. If our legal system requires that all defendants be represented by zealous lawyers, then I must be willing to serve in that role, no matter how personally unpleasant it may sometimes be. Abraham too was a teacher, and he has taught generations of human rights advocates never to remain silent in the face of a perceived injustice—even if it means standing up for the guilty.

  It is always distressing when the guilty go free. But it is a price we must be willing to pay for assuring that the innocent are only rarely convicted. The occasional acquittal of the guilty to preserve the rights of all is a difficult concept that continues to confound and engender controversy, but it lies at the core of any civilized concept of justice. In the Sodom narrative, we see God as a great teacher and Abraham as a challenging student. Both learn from the exchange: God learns that might alone does not make right, and that it is unjust to sweep the innocent along with the guilty. Abraham learns that right alone cannot save the wicked, and that perfect justice is too much to expect of any legal system. Both learn that the essence of justice is striking the right balance. Soon thereafter God gives Abraham a test of justice that teacher and student both appear to fail. But before we get to the akaida—God’s command to Abraham that he sacrifice his son—let us consider what God ultimately did to the sinners of Sodom and what happened to the one righteous family. It turns out that even the most innocent among the citizens of Sodom were not so righteous after all. They remind me of some of my innocent clients.

  1. Laytner at p. 46, quoting Leviticus Rabbah and Genesis Rabbah.

  2. Fromm, Eric, quoted in Laytner at p. xvii.

  3. Abraham also questions whether God will satisfy His part of the deal. Genesis 15:8.

  4. Genesis 28:20-21.

  5. Laytner, Anson, Arguing with God, A Jewish Tradition (New Jersey: Aronson, 1900), pp. xiii-xiv.

  6. Sanhedrin 10:5.

  7. Laytner at p. 184.

  8. Safire, William. The First Dissident: The Book of Job in Today’s Politics, 1st ed. (New York: Random House, 1992).

  9. Book of Isaiah 1:18.

  10. Job 34:10.

  11. Job 34:17.

  12. Job 36:23.

  13. Technically, Abraham did not tell God He had acted unjustly, but rather that He would act unjustly if He swept away the innocent with the guilty. This suggests that it is more appropriate to be critical in order to prevent a future injustice than to criticize a past one. But the distinction based on tense is a bit reminiscent of President Clinton’s famous distinction based on what “the meaning of ‘is’ is.”

  14. The Job story, as well as the Holocaust, raises the general issue of theodicy, which has been popularized by the book When Bad Things Happen to Good People by Rabbi Harold S. Kushner, who lost a son to illness. Theologians, philosophers, and victims have struggled with this issue since the beginning of time. See Chapter 13.

  15. There are, of course, important differences among the flood story, the Sodom story, the akeida story, the Job story, and the Holocaust. God himself brought the flood; no one else is responsible (though some commentators fault Noah for not arguing on behalf of the innocent, as Abraham did). God also destroyed Sodom, but only after a “trial” and eyewitness observation. God told Abraham to sacrifice his son, thus requiring active complicity by Abraham. God authorized Satan to kill Job’s children and expected Job to accept this injustice. The Nazis perpetrated the Holocaust, as God stood idly by. Of course, for those who believe that God is responsible for everything, there are no differences. Some try to have it both ways by arguing that God get credit for all good things but no blame for bad things. A variation on this reductionistic theme is that God does no bad things, only good things that mere humans do not comprehend.

  16. Leviticus 19:16.

  17. See Wiesel, Elie, “A Prayer for the Days of Awe,” New York Times, Oct. 2, 1997, p. A19.

  18. Ginzberg at p. 251.

  19. Soncino Bible, p. 91.

  20. One translation uses the phrase “it would be sacrilege” (Sapperstein edition).

  21. Commentators speculate on why the number 45 is included among the others, which are all multiples of 10.

  22. God does not seem to count babies and children among the innocent or righteous, and the commentators are generally silent about this problem.

  23. Both engaged in questionable sexual behavior after being singled out for rescue by God.

  24. Some commentators argue that God knew all along that there were fewer than ten righteous people and simply allowed Abraham to make his futile argument. But the text supports the view that God did not know the extent of the evil and had to go down and find out for Himself.

  25. The Talmud recognizes this by prescribing, “If one murdered a human being and there were no witnesses, they put him in a prison cell and feed him sparing bread and scant water.” Mishnah Sandhedrin 9:5. Commentators suggest that this shrinks the abdomen, and he is then fed barley “to cause rupture of the stomach.” This would completely undercut the command of the Torah that in the absence of two witnesses “he shall not be put to death” (Deuteronomy 17:6).

  26. Sir William Blackstone in Bartlett, John, Familiar Quotations (Boston: Little, Brown and Company, 1955). p. 325.

  27. Various commentators try to explain why nine would also not be strong enough.

  28. I was shocked to find almost no discussion of Abraham’s argument in the Midrash Rabbah. Even Ginzberg in his Legends of the Jews has only a brief elaboration (pp. 250-53).

  CHAPTER 5

  Lot’s Daughters Rape Their Father—and Save the World

  [T]he men of the city, the men of Sedom, encircled the house,

  from young lad to old man, all the people [even] from the outskirts.

  They called out to Lot and said t
o him:

  Where are the men who came to you tonight?

  Bring them out to us, we want to know them!

  Lot went out to them, to the entrance, shutting the door behind him,

  and said:

  Pray, brothers, do not be so wicked!

  Now pray, I have two daughters who have never known a man,

  pray let me bring them out to you, and you may deal with them however seems good in your eyes;

  only to these men do nothing,

  for they have after all, come under the shadow of my roof-beam!

  The messengers pushed Lot on, saying:

  Up, take your wife and your two daughters who are here,

  lest you be swept away in the iniquity of the city!

  When he lingered,

  the men seized his hand, his wife’s hand, and the hand of his two daughters

  —because YHWH’s pity was upon him—

  and, bringing him out, they left him outside the city.

  It was, when they had brought him outside, that [one of them] said:

  Escape for your life, do not gaze behind you, do not stand still anywhere in the plain:

  to the hill-country escape, lest you be swept away!…

  But YHWH rained down brimstone and fire upon Sedom and

  Amora, coming from YHWH, from the heavens,

  he overturned those cities and all of the plain, all those settled in

  the cities and the vegetation of the soil.

  Now his wife gazed behind him, and she became a pillar of salt.…

  Lot went up from Tzo’ar and settled in the hill-country, his

  two daughters with him, for he was afraid to settle in Tzo’ar.

  So he settled in a cave, he and his two daughters.

  Now the firstborn said to the younger: