The Genesis of Justice
Page 13
13. Leviticus 20:2-6, Exodus 13:11-16, Numbers 3:44-51.
14. Some rabbinic commentators try to have their theological cake and eat it too in this regard. Sometimes they argue that the patriarchs knew the Torah (see B. Rabbah), and other times they argue that they did not.
15. Levenson, Jon D. “Abusing Abraham: Traditions, Religious Histories, and Modern Misinterpretations,” Judaism 47 (Summer 1998): 259-77.
16. Levenson at p. 274.
17. Levenson at p. 268. This is Kierkegaard’s concept, which Levenson also criticizes as an incomplete justification.
18. “All along he had faith, he believed that God would not demand Isaac of him, while still he was willing to offer him if that was indeed what was demanded.” Ibid at p. 65.
19. See Rabbenu Nissim, quoted in Leibowitz, Nahama, at p. 188 and Maimonides, quoted in Leibowitz, pp. 188-89.
20. Bodoff at p. 80.
21. Ibid., quoting sources.
22. Maimonides.
23. Maimonides, quoted in Leibowitz at p. 191.
24. Ginzberg at p. 282.
25. Rabbi Kook, quoted in Leibowitz at p. 204.
26. Bodoff at p. 71.
27. Bodoff at p. 76.
28. Baba Metzia, 59b.
29. One traditional answer is that the rabbis refused to listen to God’s interpretation after He had given them the Torah, while Abraham’s encounter with God preceded the Torah and came at a time when God gave orders orally.
30. One midrash suggests that Abraham should have made a different argument to God: “When You commanded me to sacrifice Isaac, I should have replied: ‘Yesterday You told me: “In Isaac shall thy seed be called . . .” Nevertheless, I restrained my impulse and did not reply. . . .’” See also Midrash Rabbah, p. 498.
31. Midrash Rabbah, vol. 1, p. 494.
32. Schulweis, Harold, For Those Who Can’t Believe (New York: HarperCollins, 1994), p. 81.
33. Ginzberg, pp. 283-84.
34. For an interesting parallel between the law of attempts and halakah, see Nachshoni, Y., Studies in the Weekly Parashah (New York: Mesotah, 1998), pp. 96-98.
35. Locus penitente is defined as:
a place for repentance; an opportunity for changing one’s mind; an opportunity to undo what one has done; a chance to withdraw from a contemplated bargain or contract before it results in a definite contractual liability; a right to withdraw from an incompleted transaction. Morris v. Johnson, 219 Ga. 81, 132 S.E. 2d 45, 51. Also, used of a chance afforded to a person, by the circumstances, of relinquishing the intention which he has formed to commit a crime, before the perpetration thereof. Black, Henry Campbell, Black’s Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990), p. 941.
In the law of attempts, locus penitente refers to that point in time after an attempt has technically occurred when the defendant can undo that crime by changing his mind and removing the danger.
36. Genesis 22: 2.
37. Genesis 22:12, 16.
38. My student Meron Hacohen suggested this interpretation.
39. Armstrong, p. 69.
40. Shlomo Riskin, a modern Orthodox rabbi, was criticized for suggesting that Abraham should have argued for the life of Isaac and that he may have failed the test. Riskin at p. 13.
41. Ginzberg, p. 286.
42. Bodoff, p. 86, note 4.—The mass suicide at Masada exemplifies this perspective.
43. The Reconstructionist, New York, March 5, 1943, pp. 23-24. See also Brownmiller, Susan, Against Our Will: Men, Women and Rape (New York: Simon & Schuster), p. 332. Some historians have wondered whether this incident occurred as described, though no one doubts that Jewish women were raped during the Holocaust or that references to the binding of Isaac were common during periods of Jewish victimization. See Baumel, Judith Tydor, Double Jeopardy, Gender and the Holocaust (London: Valentine Mitchell, 1998), pp. 117-38.
44. Riskin at p. 17.
CHAPTER 7
Jacob Deceives—and Gets Deceived
When her days were fulfilled for bearing, here: twins were in her body!
The first one came out ruddy, like a hairy mantle all over,
so they called his name: Esav [Esau in English]/Rough-One.
After that his brother came out, his hand grasping Esav’s heel,
so they called his name: Yaakov [Jacob in English]/Heel-Holder….
The lads grew up:
Esav became a man who knew the hunt, a man of the field,
but Yaakov was a plain man, staying among the tents.
Yitzhak grew to love Esav, for [he brought] hunted-game for his mouth,
but Rivka [Rebecca in English] loved Yaakov.
Once Yaakov was boiling boiled-stew,
when Esav came in from the field, and he was weary.
Esav said to Yaakov:
Pray give me a gulp of the red-stuff, that red-stuff,
for I am so weary! ...
Yaakov said:
Sell me your firstborn-right here-and-now.
Esav said:
Here, I am on my way to dying, so what good to me is a firstborn-right?
Yaakov said:
Swear to me here-and-now.
He swore to him and sold his firstborn-right to Yaakov. Yaakov gave Esav bread and boiled lentils;
he ate and drank and arose and went off.
Thus did Esav despise the firstborn-right.
GENESIS 25:24-34
Now when Yitzhak was old and his eyes had become too dim for seeing,
he called Esav, his elder son, and said to him:
My son!
He said to him:
Here I am.
He said:
Now here, I have grown old, and do not know the day of my death.
So now, pray pick up your weapons—your hanging-quiver and your bow,
go out into the field and hunt me down some hunted-game,
and make me a delicacy, such as I love;
bring it to me, and I will eat it,
that I may give you my own blessing before I die.
Now Rivka was listening as Yitzhak spoke to Esav his son,
and so when Esav went off into the fields to hunt down hunted-game to bring [to him],
Rivka said to Yaakov her son, saying:…
Pray go to the flock and take me two fine goat kids from there,
I will make them into a delicacy for your father, such as he loves;
you bring it to your father, and he will eat, so that he may give you blessing before his death.
Yaakov said to Rivka his mother:
Here, Esav my brother is a hairy man, and I am a smooth man,
perhaps my father will feel me—then I will be like a trickster in his eyes,
and I will bring a curse and not a blessing on myself!
His mother said to him:
Let your curse be on me, my son!
Only: listen to my voice and go, take them for me.
He went and took and brought them to his mother, and his mother made a delicacy, such as his father loved.
Rivka then took the garments of Esav, her elder son, the choicest ones that were with her in the house,
and clothed Yaakov, her younger son;
and with the skins of the goat kids, she clothed his hands and the smooth-parts of his neck.
Then she placed the delicacy and the bread that she had made in the hand of Yaakov her son.
He came to his father and said:
Father!
He said:
Here I am. Which one are you, my son?
Yaakov said to his father:
I am Esav, your firstborn.
I have done as you spoke to me:
Pray arise, sit and eat from my hunted-game,
that you may give me your own blessing.
Yitzhak said to his son:
How did you find it so hastily, my son?
He said: indeed, YHWH your God made it happen for me.
Yitzhak said to Yaakov:
&nbs
p; Pray come closer, that I may feel you, my son,
whether you are really my son Esav or not.
Yaakov moved closer to Yitzhak his father.
He felt him and said:
The voice is Yaakov’s voice, the hands are Esav’s hands—
but he did not recognize him, for his hands were like the hands of
Esav his brother, hairy.
Now he was about to bless
him, when he said:
Are you he, my son Esav?
He said:
I am.
GENESIS 27:1-24
Now Lavan had two daughters: the name of the elder was Lea, the name of the younger was Rahel [Rachel in English].
Lea’s eyes were delicate, but Rahel was fair of form and fair to look at.
And Yaakov fell in love with Rahel.
He said:
I will serve you seven years for Rahel, your younger Daughter. …
So Yaakov served seven years for Rahel,
yet they were in his eyes as but a few days, because of his love for her. … Now …
he took Lea his daughter and brought her to him,
and he came in to her.
Lavan also gave her Zilpa his maid,
for Lea his daughter as a maid.
Now in the morning:
here, she was Lea!
He said to Lavan:
What is this that you have done to me!
Was it not for Rahel that I served you?
Why have you deceived me?
Lavan said:
Such is not done in our place, giving away the younger before the firstborn;
just fill out the bridal-week for this one, then we shall give you that one also,
for the service which you will serve me for yet another seven years.
Yaakov did so—he fulfilled the bridal-week for this one,
and then he gave him Rahel his daughter as a wife.
Lavan also gave Rahel his daughter Bilha his maid,
for her as a maid.
So he came in to Rahel also,
and he loved Rahel also,
more than Lea.
Then he served him for yet another seven years.
[Rachel eventually gives birth to Joseph, to whom Jacob gives a coat of many colors.]
GENESIS 29:16-30
So it was, when Yosef [Joseph in English] came to his brothers,
that they stripped Yosef of his coat,
the ornamented coat that he had on,
and took him and cast him into the pit.…
Meanwhile, some Midyanite men, merchants, passed by;
they hauled up Yosef from the pit
and sold Yosef to the Yishmaelites, for twenty pieces-of-silver.
They brought Yosef to Egypt.
But they took Yosef’s coat,
they slew a hairy goat
and dipped the coat in the blood.
They had the ornamented coat sent out
and had it brought to their father and said:
We found this;
pray recognize
whether it is your son’s coat or not!
He recognized it
and said:
My son’s coat!
An ill-tempered beast has devoured him!
Yosef is torn, torn-to-pieces!
GENESIS 37:23-33
Jacob, one of the most complex and interesting of the patriarchs of Genesis, lived a life of greatness and devotion to God, but also one of deceit and guile. His children seemed to follow in his footsteps. Yet God blesses Jacob repeatedly, bestowing on his male children the honor of tribal leadership. Why is such checkered conduct so highly rewarded?
A passing glance into Jacob’s personal history shows us a man who cheated his twin brother, Esau, twice. The first time, the young Jacob withheld food from his fainting brother until Esau “sold” him his birthright. The second time, the mature Jacob—at the behest of his calculating mother—tricked his blind, dying father into giving him the blessing reserved for his brother. According to a midrash, Jacob had even tried to emerge first from the womb by grabbing hold of Esau’s heel. The midrash justifies the actions of the patriarch-to-be by speculating that Jacob “had been conceived first.” 1 The evidence offered in support of this speculation seems more metaphoric than scientific. “The first drop was Jacob’s . . . for consider: if you place two diamonds in a tube, does not the one put in first, come out last?” 2
Some commentators go to great lengths in their efforts to justify Jacob’s trickery, arguing that since he was far more suited to the work of leadership, and since God had prophesied to their mother that “the elder shall be servant to the younger,” he was carrying out God’s will. 3 Church fathers, like the rabbis, excused the ruse. Jerome called it a laudable lie, and Aquinas and Augustine defended the deception. 4 Some commentators argue that Isaac was not actually deceived, since he suspected that it was Jacob who was obtaining the blessing. But even if all of that is true, it is also true that Jacob employed means—extortion and deception—that are unacceptable in a just society. What then are the lessons to be learned from Jacob’s acts of deception?
Let me offer an interpretation from the perspective of a teacher of law. The entire Book of Genesis is about the early development of justice in human society. Jacob is born into a world with few rules and many inconsistent precedents regarding deception. His father and grandfather, Isaac and Abraham, pretended their wives were their sisters in order to save their own lives. Moreover, his God is inconsistent in carrying out threats and promises. The result is a violent and lawless world. Remember too that the world of Genesis is without a hereafter in which virtue on earth is rewarded in heaven and vice on earth is punished in hell. All reward and punishment, both divine and earthly, are given in this world, where all can see the workings of justice. 5 All too often the inhabitants of Jacob’s world saw virtue punished and vice rewarded—at least in the short run.
Along comes Jacob, whose entire life appears to offer proof that in the long run people reap what they sow. He who lives by deceit shall himself be deceived. The biblical narrative goes out of its way to show that Jacob’s deceptions against others are turned back against him—over and over again. Moreover the deceptions inflicted upon Jacob are strikingly symmetrical with those he inflicted upon his brother and father.
First he is deceived by his father-in-law, Lavan, who plays bait and switch with his daughters. After working seven years for the hand of Lavan’s younger daughter, Rachel, Jacob wakes up to discover that he has married the older daughter, Leah. Lavan’s explanation of the deception brings home the symmetry: “Such is not done in our place, giving away the younger before the firstborn.” After learning of Jacob’s prior deceptions, Lavan describes his son-in-law as “my bone and flesh,” which some have interpreted as soul mates in deception. Jacob had to understand the not-so-subtle moral of the story: Just as Jacob deceived in order to undo the natural order of birth, he was deceived to restore it. 6 Just as Jacob deceived his dim-sighted father, so too was he deceived in the darkness of his wedding tent. 7
A midrash elaborates on Jacob’s poetic justice. When he awakes on the morning after his wedding night and sees that he has slept with Leah, he reproaches her, saying: “O thou deceiver, daughter of a deceiver, why didst thou answer me when I called Rachel’s name?” Leah responds: “Is there a teacher without a pupil? I but profited by thy instruction. When thy father called thee Esau, didst thou not say, here am I? 8 So did you call me and I answered you.” 9
After marrying Lavan’s daughters (and their handmaids) and having children by them, Jacob deceives Lavan by sneaking away with his entire family and cattle, while his father-in-law was shearing sheep. 10 He persuades his wives to join him with “great rhetorical cunning.” 11 His wife Rachel also deceives her own father by stealing his idols and then covering up her theft. (A midrash says that Rachel stole her father’s idols so “that her father might not learn about their [Jacob and family] flight from h
is Teraphim” [emphasis added]. This suggests that Rachel actually believed the idols had power of communication!) 12
Later in life Jacob is deceived by his own children. Considering their lineage and training, it should not be surprising that they seem deceptive by nature. In the Dina story, which we consider in the next chapter, “The sons of Jacob answered Shechem and Hamor his father with guile [b’mirma].” They tricked all the men of the clan of Hamor into circumcising themselves, and then, while the Hamorites were weak, Simeon and Levi slaughtered them all.
Jacob was also tricked into believing that his youngest son, Joseph, had been eaten by a wild beast. The means employed to deceive Jacob were strikingly similar to the means Jacob had employed to deceive his father. Just as Jacob masqueraded beneath the fur of a goatskin, Jacob’s sons killed a “hairy goat” and dipped Joseph’s coat in its blood. What goes around comes around.
I have repeatedly observed the consequences of deception in the cases I teach and work on. One striking example was a prosecution against a restaurant owner whose establishment was burned to the ground. An inspection of his books revealed that the restaurant was overinsured: It had been valued far in excess of its meager income. For that reason, the owner was indicted for insurance fraud and arson. Eventually he confided to his lawyer that he had been cheating on his taxes by keeping false books understating his income. In fact, the restaurant was making a fortune—in cash—and was underinsured. A rival, understanding the catch-22, torched the restaurant. The case was eventually plea-bargained. As Sir Walter Scott was to put it centuries earlier: “Oh, what a tangled web we weave, when first we practice to deceive!”
If we are to read Jacob’s life as a cautionary tale warning against the wages of deception, why then did the wily Jacob find so much favor in God’s eyes? Why did God select this family to lead His chosen people? To understand God’s seemingly unwarranted fondness for both father and sons one must appreciate that they were acting in a state of nature. In such a state, guile and deception are valuable traits, especially as alternatives to violence. There is no recourse to a legal system in the world of Genesis—no lawsuits, no injunctions, no penal sanctions. In order to succeed and not be victimized, an individual must rely on either violence or guile. Another ambitious man who believed that he was entitled to his older brother’s birthright might have killed his competitor, as so many siblings have done in history and literature. Jacob simply outsmarted Esau, thus following in the family tradition established by his father and grandfather, both of whom had outwitted kings, rather than his ancestor Cain, who had resorted to fratricide. Like Odysseus in Greek literature, Jacob is praised as a wily man, ready and able to employ guile and deception to navigate the dangerous waters of life. In his interactions with other humans, Jacob eschews the violence of his more physical twin, Esau, preferring brain to brawn. 13