The Genesis of Justice

by Alan M. Dershowitz

  Some of the defense lawyers argue that their mother must have converted to her husband’s faith and brought up the children pursuant to the covenants God had made with Abraham and Jacob. But there is little textual evidence to support this theory or to suggest that even Joseph lived in Egypt as an Israelite. Indeed, the very last words of the Book of Genesis describe how Joseph was buried, not as an Israelite (in a simple grave with only a shroud), but as an Egyptian (embalmed and placed in an ark). His father, Jacob, had also been embalmed by physicians, 7 but his body was brought back to the burial ground of his ancestors. Joseph’s body, on the other hand, remained in Egypt until the Israelites made their Exodus, and then his “bones” were taken along by Moses for burial in the Jewish homeland. Since Joseph had been embalmed, the question arises: What happened to the rest of his body; why were only his bones taken out of Egypt? Perhaps the symbolic message is that although Joseph died as an Egyptian (embalmed) he was eventually buried as Jew (unembalmed, with only his bones surviving). 8 A midrash criticizes Joseph for embalming his father’s corpse:

  Joseph ordered the physicians to embalm the corpse. This he should have refrained from doing, for it was displeasing to God, who spoke, saying: “Have I not the power to preserve the corpse of this pious man from corruption? Was it not I that spoke the reassuring words, Fear not the worm, O Jacob, thou dead Israel?” Joseph’s punishment for this useless precaution was that he was the first of the sons of Jacob to suffer death. 9

  Perhaps these stories of Jews living among Egyptians—and assimilating some of their ways but not others—are intended to convey a message about choice. Ephraim and Manasseh, alone among Jacob’s grandchildren, had the choice whether to follow the covenant of their ancestors or adopt the ways of the foreign nation where they had been born. Jacob’s blessing, “May God make you like Ephrayim and Manasseh,” was the patriarch’s way of recognizing that Jews throughout history will be presented with similar choices. Ephraim and Manasseh chose the way of the covenant, as did Abraham and Jacob—despite the availability and material benefits of other alternatives. It was the act of choosing to be a Jew, rather than merely being born into that heritage, that Jacob found deserving of special praise. A fantastic midrash tried to make Joseph’s wife a Jew, despite the biblical text. It claimed that Joseph’s wife was the daughter of his sister, Dina, by the murdered Shechem. “An angel carried the babe down to Egypt, where Potiphar adopted her as his child, for his wife was barren.” Joseph “became acquainted with her lineage, and he married her, seeing that she was not an Egyptian, but one connected with the house of Jacob. . . .” 10 This is an example of a midrash seeking to conform the biblical narrative to later halakic rules, such as the matrilineal descent of Jewishness.

  Jacob and Joseph elected to have their remains removed from Egypt and taken to the Jewish homeland. That decision too is praised by God. A midrash says that Jacob did not want to be buried in Egypt because he knew that Egypt would be inflicted with plagues, “and it revolted him to think of his corpse exposed to such uncleanliness.” 11 But then what about Joseph, whose corpse remained in Egypt during the plagues? A midrash, as usual, has a creative answer: Joseph was buried in a “leaden coffin.” 12

  Choice is rewarded over status because it entails a thoughtful weighing of options and a renewal of the covenant, which—after all—is an arrangement of mutual choice and agreement. Jacob’s blessing can be seen, therefore, as a step in the direction of elevating contract, which is a matter of choice over status, which is beyond the control of the actor.

  The themes of deception and false accusation, which recur throughout the Jacob and Joseph narratives, contribute to the development of justice in the Book of Genesis. Those who are falsely accused remain silent in the face of the accusation, since there is nothing they can say to clear themselves of guilt based on damning physical evidence. When Potiphar’s wife accuses Joseph, the innocent young Jew does not try to cast the blame on her. When Joseph later falsely accuses Benjamin, the brothers do not try to defend themselves. Yehuda implores Joseph, “How can we speak? How can we clear ourselves?” Their frustration in the face of the planted evidence is palpable. They cannot defend themselves without accusing their prosecutor and judge. Finally Yehuda pleads for mercy and proposes a plea bargain: He will remain a slave in place of his younger brother.

  It is ironic that Yehuda (Judah) should emerge not only as the advocate for justice, but also as the volunteer hostage. It was, after all, the very same Yehuda who had come so close to executing his daughter-in-law Tamar for a sin in which he himself had participated. Tamar had saved herself by preserving the evidence of Yehudah’s complicity. Yehudah had apparently learned from Tamar several important lessons—both tactical and moral—about advocacy and justice. The tactical lesson he had learned was not to confront authority directly. Tamar simply produced the signet and staff, without accusing Yehuda. This led Yehuda to recognize the injustice of his hastily imposed sentence. Now it is Yehuda who is the victim of an injustice. He does not accuse Joseph of planting the goblet, though he must have suspected as much. Instead he recognizes Joseph’s unchallenged authority over him and his brothers—an authority parallel to that which he had exercised over Tamar—and implores Joseph to do the right thing. Joseph was, of course, going to do the right thing regardless of the nature of his brother’s plea, but not until he had taught them a lesson about how it feels to be victimized by those more powerful than you.

  A midrash suggests that Joseph did not actually fool his brother Benjamin, only the brothers who sold him into bondage. Its purpose is obviously to show that Joseph would never inflict pain on an innocent bystander, only on those who deserve payback:

  Joseph ordered his magic astrolabe to be brought to him, whereby he knew all things that happen, and he said unto Benjamin, “I have heard that the Hebrews are acquainted with all wisdom, but dost thou know aught of this?” Benjamin answered, “Thy servant also is skilled in all wisdom, which my father has taught me.” He then looked upon the astrolabe, and to his great astonishment he discovered by the aid of it that he who was sitting upon the throne before him was his brother Joseph. Noticing Benjamin’s amazement, Joseph asked him, “What hast thou seen, and why art thou astonished?” Benjamin said, “I can see by this that Joseph my brother sitteth here before me upon thy throne.” And Joseph said: “I am Joseph thy brother! Reveal not the thing unto our brethren. I will send thee with them when they go away, and I will command them to be brought back again into the city, and I will take thee away from them. If they risk their lives and fight for thee, then shall I know that they have repented of what they did unto me, myself known unto them. But if they forsake thee, I will keep thee, that thou shouldst remain with me. They shall go away, and I will not make myself known unto them.” 13

  The sinning brothers do not forsake their innocent sibling, and Joseph—realizing that his revenge has gone far enough—identifies himself and exposes the charade. Now that the old score has been settled, the brothers can move on and reunite. All is forgiven, but not forgotten, as their father will remind them in his deathbed legacy.

  The Joseph narrative illustrates a world in which justice ultimately prevails, but not because of the rule of law. Justice, in the Joseph story—as in the Tamar story—depends entirely on the whims of men, the fickleness of fate, and the miracles of God.

  The horror of false accusation will recur throughout Jewish history. The blood libel alone—the false accusation that Jews use the blood of ritually murdered Christian children to bake matzo—took thousands of Jewish lives during the Middle Ages. 14 The jurisprudence of the Bible’s law books, especially Exodus and Deuteronomy, reflects the frustrations felt first by Joseph and later by his brothers. The bearing of false witness—which includes the planting of evidence—is made a terrible sin and crime explicitly proscribed in the Ten Commandments. Its punishment is symmetrical to the crime: You are to “do to him as he schemed to do to his brother.” 15 The law also builds in other prote
ctions against false accusations, as if to recall the ease with which the powerful—Potiphar’s wife and later Joseph the overseer—could plant false evidence against the powerless and the difficulty the powerless have in defending themselves against such overwhelming physical evidence.

  These stories of false evidence are the first intimations of the need for a legal process—for procedures of law in addition to the substantive rules. “Thou shall not kill” does not prevent an innocent person from being falsely accused of killing. The earlier crimes of Genesis were seen by God and judged by Him. Abraham worried that the innocent would be swept along with the guilty not because the evidence was false (a procedural issue), but because God would impose collective responsibility on an entire city as he had on the entire world (a substantive issue). God responds by acknowledging—implicitly—the inherent human difficulty in distinguishing the guilty from the innocent and the need for a fair process. Later on, in the Book of Exodus, God is even more categorical: “Keep far from a false matter; and the innocent and righteous do not slay. … ” 16

  The Joseph narrative alerts us to the most primitive kind of evidentiary problem: the deliberate misuse of evidence in an effort to frame the innocent. There are, of course, many variations on this theme. For instance, evidence can be planted against the guilty in order to make their conviction more certain. There have been numerous instances of such misconduct in modern times, most notably by New York State Troopers who were convicted of planting fingerprints against drug dealers they had difficulty catching. Mistaken identification and imperfect memory may cause the inadvertent conviction of the innocent. Modern DNA testing makes this more difficult, but certainly not impossible. Bias by the decision maker may skew the evidence against the accused or in extreme cases may cause the decision maker to ignore plain evidence of innocence. It is impossible for any legal system to protect against all errors—either deliberate or inadvertent. But a system can create safeguards that make conviction of the innocent less likely. These safeguards are expensive, not only because they require material resources, but because they must occasionally allow the guilty to go free. For the believing person, God provides an assurance of divine retribution: “I will not acquit one who is guilty.” 17 For those more skeptical about God’s justice, the occasional freeing of the guilty is seen as a necessary cost of any fair system. It is the willingness of a legal system to make this trade-off—allowing some guilty wrongly to go free in order to assure that very few innocents are wrongly convicted—that marks the maturation of any jurisprudence.

  The story of Joseph forms the prelaw predicate for the intricate and innovative system of legal protections found in the later books of the Bible: the requirement of two witnesses, the protection against self-incrimination, the prohibition against double jeopardy, the difficulty of imposing capital punishment, and the strong condemnation against punishing the innocent. Like much of the earlier narratives of Genesis, the Joseph story shows us what it was like to live in a world without a legal system—a world in which those with high status could, with impunity, falsely accuse those of lower status. It shows us the need for a system of justice in which all stand equally before the law and those accused of a crime have a fair opportunity to challenge the evidence against them and to demonstrate that it was planted, false, or mistaken. It leads inexorably to the later biblical rules against favoring in judgment either the rich or the poor.

  Anyone who has been falsely accused of a crime will appreciate the need for a system of justice in which the accused has the right to confront the accuser on a level playing field. The Joseph narrative makes the reader empathize with the plight of the falsely accused and sets the stage for the rigorous—and often counterintuitive—safeguards of the subsequent law books. As we apply these safeguards, we hear Yehuda’s plaintive question ringing in our ears: “How can we clear ourselves?” The answer is by a fair system that places a heavy burden on the accuser and provides the accused with adequate safeguards against the kind of false evidence employed in the story of Joseph.

  And so the Book of Genesis ends with a segue to the great law book of the Bible—Exodus. It begins with a story about man and woman in the state of nature, before rules or law—a world in which passions reign. It continues with stories of men and women struggling with their instincts for good and evil. It ends with a morality tale about people wrongly accused, unable to speak out against injustice and ultimately triumphing not because of the rule of law, but rather because of the fiat of man and the benevolence of God. In Exodus, Moses, the lawgiver, brings down from Sinai not only the Ten Commandments, 18 but also the detailed code of laws and legal procedures designed to govern all human behavior. 19 In order to appreciate the absolute need for a comprehensive legal system of both substantive and procedural rules, it is essential first to see how human beings behave in a world without law. Genesis shows us that world.

  There is a midrash that supports this interpretation. A talmudic rabbi asks the question “Why was the Torah given to Israel?” His answer is that the people of Israel needed the Torah because before they received the law, they were a “wild” people. 20 A rabbinic story elaborates this theme. The angels demand that the Ten Commandments be given to the angels rather than to the Jews. God allows Moses to make the case for the Jews. Moses asks the angels whether they ever feel the temptation to murder, rob, or commit adultery. The angels respond, “Of course not. We are angels.” Moses turns to God and says, “Ah-ha, the angels do not need the law. It is necessary only for humans, who are always tempted to do evil.”

  The Book of Genesis is about human passions and temptations in the absence of law. There are certainly enough untrammeled passions and lawlessness in Genesis to justify the need for a formal legal system. We see Cain’s murder insufficiently punished and Cain eventually rewarded with the role as builder of cities. We see Lot raped by his daughters, and Dina humbled by a man who comes to love her. That man and his entire clan are then tricked and massacred by brothers who become tribal leaders of Israel. Indeed, a midrash says that the “sons of Jacob were like wild beasts. … ” 21 We see Jacob deceiving and deceived, Joseph falsely accused and then planting evidence so that his treacherous brothers are also falsely accused. There are no explicit rules governing such behavior, and what few general rules exist are changed at the whim of the rule maker. Hardly a positive picture of the law in action.

  There is another way of viewing the Book of Genesis. Although it shows a world without systematic rules, it is also a world groping for such rules—a world evolving toward a system of formal justice under which rules are announced in advance and applied fairly by a complex process of justice. We see a world pursuing justice, as Deuteronomy is later to command. We see the genesis of justice in the injustice of Genesis. It is to this broad subject that we now turn.

  1. A midrash says that God placed Joseph on trial because he was vain about his beauty (Midrash Rabbah, vol. 2, p. 807, n. 2).

  2. Midrash Rabbah, vol. 2, p. 812.

  3. Ginzberg, vol. 2, p. 43.

  4. Ibid., p. 85.

  5. Ibid., p. 100.

  6. Ibid., p. 112.

  7. Indeed, the phrase is repeated twice, as if for emphasis (50:1-2).

  8. The biblical word is traditionally translated as “bones,” but it can also mean “essence” or perhaps even “remains.” But it would not include a completely embalmed body.

  9. Ginzberg, vol. 2, p. 150.

  10. Ibid., p. 38.

  11. Ibid., p. 128.

  12. Ibid., p. 181.

  13. Ibid., p. 98.

  14. There was even a blood libel trial in Kiev, Ukraine, as recently as 1911. The defendant, Mendel Beilis, was acquitted, but only after a jury rejected the testimony of a priest who swore the blood libel was true. Bernard Malamud’s novel, The Fixer is loosely based on this case.

  15. Deuteronomy 19:19.

  16. Exodus 23:7.

  17. Ibid.

  18. The “Ten Commandments” is really a mistran
slation of the Hebrew “Aseret Divrot”—the Ten Statements. These statements include both commandments and declarations.

  19. According to Jewish tradition, God gave Moses not only the written law, but the oral law as well. See generally, Twersky, I., A Maimonides Reader.

  20. The Hebrew word can also be translated as “fierce.” The Soncino translation is “impetuous” (Babylonian Talmud, Beitzah, p. 25, side B). My appreciation to Dr. Norman Lamm for alerting me to this quotation.

  21. Ginzberg, vol. 2, p. 99.

  PART III

  THE GENESIS OF JUSTICE IN THE INJUSTICE OF GENESIS

  CHAPTER 11

  Why Is There So Much Injustice in Genesis?

  The Book of Genesis can be read as a metaphor reflecting the stages most legal systems experience on the rocky road from lawlessness to law-abidingness. It has not been a linear development. Instead, as in Genesis, we have seen progress followed by regress followed by progress—sometimes one step forward, two steps back, and then a leap forward, like the Magna Carta and the United States Constitution. Other times, as with Nazi Germany and Stalinist Russia, the leap has been backward. Occasionally it has been unclear whether a step is forward or backward, or whether there is even agreement as to what constitutes forward movement. No two systems have followed exactly the same course. But a few common themes can be identified, and they appear in Genesis.

  Genesis also reflects a world in which law is largely “natural” rather than “positive.” Actions and reactions derive from the nature of human beings and their Creator, not from formal codes of conduct. Any law that calls itself “natural” will necessarily be as arbitrary, variable, unpredictable, vague, and subject to multiple interpretations as is human nature or the nature of God. 1 And the nature of human beings is as varied as the number of human beings. In the single book of Genesis, we meet a motley assortment of characters, including the fratricidal Cain, the human rights advocate Abraham, and the family man Jacob. These characters do not remain constant, each showing enormous variations within their lifetime. Cain begins as a cold-blooded murderer and ends up as a builder of cities. Abraham argues with God over the lives of strangers and then refuses to argue for the life of his son. Jacob begins as a nice young man (“ish ta’am”), becomes a conniving tactician, and ends up as a caring father capable of the most perceptive and uplifting of blessings.