The Genesis of Justice

by Alan M. Dershowitz

  Some would say these stories of guile—more than the later tales of conquest and violence—are a metaphor for how Jews managed to get along throughout most of their history. Physically powerless to fight against discrimination and marginalization, they sometimes resorted to methods of self-help that relied on wit and artifice. Although they played by the rules established by their Christian and Muslim hosts, they learned how to use these rules—such as the prohibition against moneylending—to their advantage. Viewed this way, the narrative of cunning and guile becomes a knife that cuts both ways. On the positive side, they are metaphors for survival in a hostile world. At the same time, they play into the stereotype of Jew as manipulator and trickster. Shakespeare’s Shy-lock was surely a manifestation of this negative image, which continues in some places to this day.

  In 1990 I became embroiled in a dispute over the nomination of a grossly unqualified political hack for a local judgeship. My colleague Harvey Silverglate joined me in testifying against the appointment. The then president of the Massachusetts Senate, who was sponsoring the nomination, was quoted by the Boston Globe as having said the following about us:

  Bulger contended that Dershowitz and Silverglate are “very manipulative” and “exceedingly crafty” lawyers. … After citing the Old Testament story of Jacob and Esau, who was tricked into selling his birthright, Bulger called Dershowitz “a true conniver.” 26

  Bulger urged his colleagues to “look at their faces,” as if to emphasize our ethnicity. Both the Globe and the Herald characterized his statements as ethnic stereotyping and soft-core anti-Semitism. This contemporary tale of bigotry demonstrates how some people still use the Old Testament as a source of anti-Semitic stereotyping.

  Be that as it may, the story of Tamar’s deception is also part of a literary tradition, most famously represented by Oedipus, in which forbidden sex is carried out behind a veil of ignorance. We see this even earlier in Genesis when Abraham and Isaac pass their wives off as their unmarried sisters.

  To illustrate Ecclesiastes’s point that there is nothing new under the sun, consider the following news item from 1996:

  NASHVILLE, Tenn.—The “Fantasy Man” was convicted of rape by fraud Thursday after two women described how he duped his victims into disrobing and agreeing to blindfolded sex because they thought he was their lover.

  Police believe Mitchell, 45, has called hundreds of women over the years. Most hung up on him. But of the 30 women who reported Fantasy Man encounters to police, eight said they had sex with the caller.

  Each encounter began with an early-morning phone call to the sleeping women, prosecutors said. Whispering softly, he persuaded them he was their boyfriend and asked them to fulfill his fantasy of having sex with a blindfolded woman.

  One woman said she had sex with Fantasy Man twice a week over two months in 1992, and only discovered he wasn’t her boyfriend when her blindfold slipped off. 27

  The Tamar narrative also raises the issue of exchanging sex for property. It is not the only such story in Genesis. The bizarre vignette concerning the “mandrakes” has perplexed commentators over the millennia. Leah and Rachel are both married to Jacob, but Jacob clearly prefers the company of Rachel, for whom he had worked an additional seven years. Leah had already provided Jacob with children, but Rachel had not. One of Leah’s children finds some exotic plants—called dudaim in Hebrew and translated as “mandrakes”—in the field and brings them to his mother. Rachel covets them because, the commentators suggest, they were thought to promote conception. 28 Leah was not in a giving mood toward her rival sister, reminding her that she had “taken away my husband.” Rachel offers to exchange a night of sex with Jacob for the mandrakes, and Leah gleefully accepts. When Jacob comes home from work that night, expecting to sleep with Rachel, Leah demands that he “come in unto” her, since she has “hired” him in exchange for the mandrakes. 29 Jacob accedes and impregnates Leah once again. Shortly thereafter Rachel also conceives and gives birth to Joseph. The mandrakes apparently worked.

  The traditional commentators justify both of these sexual exchanges as necessary to fulfill the woman’s imperative of motherhood, especially when it is their destiny to become the progenitors of God’s chosen people and His chosen leaders. As the sixteenth-century Italian commentator Obadiah Ben Jacob Sforno put it: “To some [the mandrake] incident may appear immodest. Its purpose is to indicate that the matriarchs were only motivated by the desire to bear children and produce a people that would serve God.” 30 So too with regard to the Tamar episode. Not only is Tamar’s sexual trickery justified as necessary to fulfill her destiny, but Judah is also acquitted of paying for sex with a harlot by the following midrash:

  He wished to go on, but the Holy One, blessed be He, made the angel who is in charge of desire appear before him, and he said to him: “Whither goest thou, Judah? Whence then are kings to arise, whence are redeemers to arise?” Thereupon, he turned unto her—in despite of himself and against his wish. 31

  (I know some clients who wish they had thought of the “The angel of desire made me do it” defense!) Maimonides makes a somewhat more plausible defense of Judah:

  [H]arlotry was permitted in those times—just as non-kosher foods were not forbidden—before the Torah was given. Even though the Patriarchs—and presumably their families—observed the Torah before it was given, they did so voluntarily, so that it was conceivable that where necessary they would act according to the laws that were obligatory at the time. Consequently, if the Divine plan required Judah to cohabit with a “harlot,” he would be permitted to do so. 32

  Talk about having it both ways: The patriarchs get credit when they obey the Torah, but no blame when they don’t!

  The Genesis stories all take place before the advent of formal rules of law (with the exception of the basic Noachide laws). The heroes and heroines must make tragic choices, balancing lesser evils against greater evils, without the benefit of legislation. The story of Tamar—like the stories of Lot’s daughters, Abraham’s and Isaac’s wives, Rachel and Leah’s mandrakes, and others—illustrates the idea of the necessary evils. There are no perfect options, but in the face of greater harm, a bit of proportional deception is deemed acceptable. Tamar’s trickery paves the way for the story of Joseph, in which a series of deceptions serve as prelude to the Exodus and Sinai—and the formal legal codes.

  1. Deuteronomy 25: 5-10.

  2. “The legal obligation of ‘yibum’ … was a widespread practice in the ancient Near East … ” (Alter, p. 218).

  3. Weisman, p. 363.

  4. Rashi, Genesis 35:7.

  5. Robert Alter speculates that Er’s evil may have been nothing more than yet another instance of God’s displeasure at firstborn males: “Though the first born is not necessarily evil, he usually turns out to be obtuse, rash, wild, or otherwise disqualified from carrying on the heritage” (Genesis, p. 218). This is part of God’s pattern of “reversal of primogeniture in all of these stories.”

  6. Alter, p. 218.

  7. Midrash Rabbah, p. 792.

  8. Ibn Ezra, p. 357.

  9. Kirsch, Jonathan, The Harlot by the Side of the Road (New York: Ballantine, 1997), p. 139.

  10. “[S]he evidently remains under his legal jurisdiction, as his issuing of a death sentence against her (v. 24) indicates” (Alter, p. 219).

  11. In listing the progeny of Jacob, Tamar’s twins are attributed to Judah, rather than Er, and Shelah is mentioned only as one of Judah’s five children (Genesis 46:12).

  12. Kirsch, p. 143.

  13. Kirsch, p. 147.

  14. Prior to Sinai, the Levirite duty could, when necessary, be fulfilled by close family members other than a brother-in-law, but not by a married man. See Chasam Sofer, Commentary on Bereishis (Art Scroll, 1996), p. 257.

  15. Alter, p. 219.

  16. Alter, p. 220.

  17. Ibid.

  18. The Bible uses different words when first describing what Judah believed the woman to be and when he later
describes her to his messenger. The first word—zonah—means ordinary prostitute. The second word—k’deishah—connotes some kind of a religious prostitute associated with pagan temple worship.

  19. The hasty nature of Judah’s judgment and his severe sentence demonstrates the need for process, which becomes evident in the Joseph story. The Chasam Sofer observes that under non-Jewish law at the time, Tamar could not be executed while pregnant. They would postpone the execution until after the birth (Sofer at p. 258). Mishnah Arachin 1: 4 provides that “if a [pregnant] woman were sentenced to death, they do not wait for her until she shall have given birth, [but] if she were sitting on the birth stool, they must wait for her until she shall have given birth.”

  20. Genesis 38:25 (Rashi).

  21. Alter, p. 221.

  22. The biblical Hebrew is somewhat ambiguous.

  23. At least as long as the child is a male. It is interesting that the biblical begets list the father of Tamar’s children as Judah, rather than Er, who—under Levirite practice—should get the credit (Genesis 46:12).

  24. Childless and sonless married women were also treated badly and would do almost anything to produce a male heir in order to elevate their status. As Rachel said: “Give me children or else I die” (Genesis 30: 2).

  25. Their tricking of Hamor’s clan doesn’t fit into this category because they used it as a prelude to mass murder.

  26. December 6, 1990.

  27. Associated Press, January 19, 1996.

  28. Alter points to the verbal similarity between the word “dudaim” and the poetic word for lovemaking, “dodimi.” The Song of Songs also makes this association.

  29. Alter sees an association between Leah trading “a plant product” for sex and Jacob trading porridge for a birthright.

  30. Soncino, p. 175.

  31. Midrash Rabbah, pp. 794-95.

  32. Scherman, Nosson, The Chumash (Brooklyn, NY: Mesorah Publications, Ltd, 1993), Stone Ed. p. 211.

  CHAPTER 10

  Joseph Is Framed—and Then Frames His Brothers

  [Potiphar’s] wife fixed her eyes upon Yosef [Hebrew for Joseph]

  and said:

  Lie with me!

  But he refused, …

  When he came into the house to do his work,

  and none of the house-people was there in the house—

  that she grabbed him by his garment saying:

  Lie with me!

  But he left his garment in her hand and fled, escaping outside.

  Now it was, when she saw that he had left his garment in her hand and had fled outside, …

  Now she kept his garment beside her, until his lord came back to the house.

  Then she spoke to him according to these words, saying:

  There came to me the Hebrew servant whom you brought to us, to play around with me;

  but it was, when I lifted up my voice and called out,

  that he left his garment beside me and fled outside.

  Now it was, when his lord heard his wife’s words which she spoke to him,

  saying: According to these words, your servant did to me!—

  that his anger flared up;

  Yosef’s lord took him and put him in the dungeon house, in the place where the king’s prisoners are imprisoned.

  GENESIS 39:7-20

  [Joseph was made second in command to Pharaoh, after he was taken from prison to interpret Pharaoh’s dreams. In the meantime, Jacob sent his children to Egypt in quest of food.]

  Now [Joseph] commanded the steward of his house, saying:

  Fill the men’s packs with food, as much as they are able to carry,

  and put each man’s silver in the mouth of his pack.

  And my goblet, the silver goblet, put in the mouth of the youngest’s pack, along with the silver for his rations.

  He did according to Yosef’s word which he had spoken.

  At the light of daybreak, the men were sent off, they and their donkeys;

  they were just outside the city—they had not yet gone far—when Yosef said to the steward of his house:

  Up, pursue the men.…

  [A]nd the goblet was found in Binyamin’s pack!

  They rent their clothes,

  each man loaded up his donkey, and they returned to the city.

  Yehuda and his brothers came into Yosef’s house

  he was still there—

  and flung themselves down before him to the ground.

  Yosef said to them:

  What kind of deed is this that you have done! …

  So now,

  pray let your servant [Yehuda] stay instead of the lad, as servant to my lord,

  but let the lad go up with his brothers!

  For how can I go up to my father, when the lad is not with me?

  Then would I see the ill-fortune that would come upon my father!

  GENESIS 44:1-34

  Yosef could no longer restrain himself in the presence of all who were stationed around him, …

  Then Yosef said to his brothers; I am Yosef. Is my father still alive?

  But his brothers were not able to answer him,

  for they were confounded in his presence.

  Yosef said to his brothers:

  Pray come close to me!

  They came close.

  He said:

  I am Yosef your brother, whom you sold into Egypt.

  But now, do not be pained,

  and do not let upset be in your eyes that you sold me here!

  For it was to save life that God sent me on before you.

  GENESIS 45:1-5

  Joseph is best known as the interpreter of dreams and the economic genius—the Alan Greenspan—who saved Egypt from famine and reunited his family in Egypt. But Joseph is also a victim who overcomes his victimization and turns it into triumph. Most of Genesis’s other victims—Abel, Sarah, Lot, Isaac, Dina, Shechem—are quickly forgotten or relegated to a passive role in the narrative. Joseph, on the other hand, emerges triumphant, gets back at his treacherous brothers, and emerges as the family hero. (Tamar, as well, fits into the category of a victim who overcomes.)

  The story of Joseph, like that of his father, is partly about symmetrical justice—payback. Joseph is sold into bondange by his own jealous brothers—a slight improvement over the fratricide of Cain—and his father is deceived into thinking that his favorite son has been torn apart by a wild beast. The means of deception is a garment smeared with animal blood. Then Joseph is framed for a crime he did not commit by the woman—Potiphar’s wife—who sought to seduce him into adultery. She also uses physical evidence against him (in much the same way Iago plants evidence against Desdemona in Shakespeare’s Othello) and falsely accuses him of attempted rape. 1 Joseph remains silent and is placed in prison. A midrash says that Potiphar knew Joseph was innocent but had to find him guilty in order to spare his children the stigma of being born to a harlot. Joseph’s punishment—imprisonment instead of death—is given as proof of this interpretation. 2 Another imaginative midrash has Potiphar buying Joseph “for a lewd purpose, but the angel Gabriel mutilated him in such manner that he could not accomplish it.” 3 In any event, Joseph ends up in prison, where his dream interpretations—really prophecies—bring him to the attention of Pharaoh. Joseph interprets Pharaoh’s dreams to predict seven years of good harvests followed by seven years of famine. He proposes a solution to the coming crisis and is appointed overseer of all of Egypt. A midrash declares that “God never allows the pious to languish in distress longer than three days!” 4 If only that were so.

  Years later, when his starving brothers come to Joseph for food, the overseer behaves a bit as his father, Jacob, had done when his starving brother, Esau, begged for porridge. Joseph decides to play games with his brothers as part of a grand retributive scheme. He gets them to bring their youngest brother, Benjamin—who had remained at home with their father—to Egypt, promising that no harm will come to the lad. When Benjamin is brought to him, Joseph arranges to frame
his younger brother for stealing. He plants a goblet in Benjamin’s pack, in much the same way Potiphar’s wife misused physical evidence against him. A midrash relates Joseph’s hiding the goblet to his mother’s secreting her father’s idols and to his brothers’ selling of him:

  He searched all the sacks, and in order not to excite the suspicion that he knew where the cup was, he began at Reuben, the eldest, and left off at Benjamin, the youngest, and the cup was found in Benjamin’s sack. In a rage, his brethren shouted at Benjamin, “Oh thou thief and son of a thief! Thy mother brought shame upon our father by her thievery, and now thou bringest shame upon us.” But he replied, “Is this matter as evil as the brethren that sold their own brother into slavery?” 5

  Joseph’s macabre joke works; the brothers—even the innocent Benjamin—are terrified for their lives. Only then does Joseph pull back the curtain and reveal himself as their missing brother. A dramatic midrash says that “Joseph bared his body” to show that he was circumcised. 6 Whatever means he used to prove who he was, the brothers are relieved to learn that they had been the victim of nothing more than a retaliatory prank. From then on, the story progresses to a happy ending, as Jacob is brought to Egypt for a reunion with his long-lost son.

  Jacob can now die relatively happy, but not before he blesses his children and grandchildren. Jacob saves his greatest blessing for Joseph’s two sons, Ephraim and Manasseh, commanding his progeny to bless all of Israel in the following way: “May God make you like Ephrayim and Menashe.” Why was this special blessing saved for the children of a marriage between an Israelite and the daughter of an Egyptian priest? Was Jacob a social climber who favored Ephraim and Manasseh because they had more material wealth and higher civil status than any of his other grandchildren? Did Jacob grant this favor to children close to the king in order to secure Pharaoh’s protection of his entire family? Surely Joseph’s children were not more Jewish; indeed, by current Jewish halakah they were not Jews at all, since their mother was an idol worshiper and they were brought up as part of the Egyptian nobility.