The Genesis of Justice

by Alan M. Dershowitz

  The human beings of Genesis, like those throughout history, share no singular nature or even common trait. A world that can produce Moses, Jesus, Hillel, and Schweitzer, as well as Hitler, Stalin, Torquemada, and Genghis Khan, is not a world that can be reduced to a singular view of human nature.

  Even the God of Genesis lacks a singular nature. He is a petulant, vengeful, demanding, and petty God, as well as a forgiving, merciful, life-affirming, and even repentant God. 2

  Little about the specific content of the Bible’s natural law can be derived from the infinitely variable nature of either the humans or their creator as described in the Book of Genesis. The open-textured quality of the biblical narratives makes it inappropriate to derive from them one-dimensional, agenda-driven “morals.” No single lesson flows from these multilayered stories, and those who seek to reduce them to a proof text for a particular conclusion do not do justice to their complexity and brilliance. For example, the story of Cain and Abel has been cited by both sides of the capital punishment debate as proof that God supports their side of the controversy. 3 Likewise, the Sodom and Gomorrah story has been cited by both sides of the controversy over homosexuality. 4

  What we can derive from the stories of Genesis is the need for an agreed-upon and enforceable code of conduct with procedural safeguards against arbitrary enforcement and unfair application. The remaining books of the Bible, and the subsequent history of the Jewish people’s obsession with justice, deal with these needs. In the law books of the Bible we are given the broad principles in the Ten Commandments, the specific rules of conduct—both positive and negative—as well as a directive to pursue justice actively, as if it were an unattainable grail.

  In the beginning, all “law” is ad hoc. It involves random orders and threats from the powerful to the powerless. God’s first command, not to eat from the Tree of Knowledge, lacks apparent reason and defies human nature. Sanctions are inconsistent and unpredictable. Indeed, the very unpredictability of the punishment is seen as a source of power. God’s first threat to Adam—“On the day that you eat from [the Tree of Knowledge] you must die, yes, die”—is followed by the imposition of a very different series of punishments. Inconsistency and unpredictability also characterized the punishment of Cain for killing his brother, Abel. This is in the nature of ad hoc punishment; it is determined not by a preexisting code of laws, but rather by an evolving yet incomplete sense of justice. Also characteristic of ad hoc punishments is the pendulum swing of underreaction followed by overreaction until an appropriate middle ground of proportionate reaction is discerned. Trial and error is inevitable in any ad hoc approach to justice. God, who was able to create the physical universe in just six days, finds it far more difficult to design a system of justice by which to govern His human creatures.

  Not surprisingly, therefore, God—the source of justice in Genesis—overreacts to His underpunishment of Adam, Eve, and Cain by destroying the entire world, except for one righteous family and one mating pair of every species of animal. The remarkable God of Genesis not only learns from His mistakes, but He publicly acknowledges His lack of omniscience in His own Book for all to read. He repents His creation of mankind and tries to improve upon His first draft. Then God recognizes His overreaction by promising that He will never again sweep away the innocent along with the guilty—at least not in a flood. Finally, God realizes that His ad hoc approach to punishment has not worked very well, and—for the first time—He sets out a series of rules governing all human beings, the most important of which is that he who murders another human being shall himself be punished by execution. 5

  This process of evolution from ad hoc rules and disproportionate sanctions to codified rules and proportionate sanctions has characterized most legal systems. Generally the individual cases begin to form some type of “common law” mosaic, from which a precedential pattern can be discerned. This pattern is then formalized into some sort of a code, accessible for all to see or hear.

  The late Justice Hugo Black once described a king who wrote the laws in a hand so fine that his subjects could not read them. This gave the king the power to change the laws at will and to enforce his own whim. Justice Black’s colleague on the Supreme Court, Felix Frankfurter, conjured up a different image to make a similar point. He contrasted our system of rule-bound justice with the kind of individualized justice administered by “a kadi sitting under a fig tree.” In both colorful examples Justices Black and Frankfurter criticize justice that relies too much on the rule of man rather than the rule of law.

  The rule of law is supposed to apply to all people regardless of status or station. The governing rules are announced in advance, so that all can know which actions will be punished and which rewarded. Moreover, the rules are published before people can determine who will be their beneficiaries and who their victims. 6

  Unfortunately it is impossible to create rules that anticipate all evil or good actions. Rules, no matter how complete and carefully written, will always have interstices—holes—which must be filled on a case-by-case basis. The existence of these holes will inevitably produce the need for some individualized justice. The wise King Solomon is seen as the paradigm of individualized justice, making up the rules as he goes along. But history has taught us not to expect all of our kings to be Solomonic. That is why we try to have law makers (legislators) who write general laws, and law appliers (judges) who apply the general rules to particular situations. One of the foundations of any legal system is to strike an appropriate balance between the rule of law and the rule of man and woman.

  The contemporary American system of justice seeks to strike that balance by a complex system of checks and balances among the legislative (lawmaking), executive (law-enforcing), and judicial (law-interpreting) branches. We are governed by a written Constitution, which, like the Bible, combines specific rules (a president must be at least thirty-five years old) with open-textured guides to action (no one may be denied the “due process” or “equal protection” of law). Then we have statutes—federal, state, and municipal—which must conform to the Constitution. Executives—the president, governors, mayors—enforce these statutes. And the courts interpret and apply them, subject to ultimate review by the Supreme Court to determine whether they are consistent with the Constitution.

  In this respect, there are parallels between the American system and the biblical system. At the pinnacle of the biblical system is, of course, the text of the Bible itself. It is like the Constitution, in that it trumps all subsequent legislation, unless it is properly amended. Christianity claims to have amended the Old Testament with the New Testament. Specific rules, such as the prohibition against eating unkosher food, were abrogated. It is interesting that in “amending” the original “constitution,” Jesus used words that would be familiar to lawyers and judges: “Think not that I come to destroy the law … I am not come to destroy, but to fulfill.” 7

  Within the Jewish tradition, the Pentateuch can never be amended. 8 But it can be interpreted in accordance with prescribed hierarchical rules. According to this tradition God gave the Oral Torah directly to Moses along with the written Scripture. Moses then transmitted it to Joshua and the seventy elders, who then gave it to others who passed it on. It eventually reached those who “compiled the Mishna” and then was studied by later generations and interpreted by reference to “thirteen hermeneutical rules, to which the Great Tribunal assented.” 9 It follows from this hierarchy of authority that each generation must defer to the more authoritative views of its predecessors who were closer in time to the original source, but everyone is bound by the agreed-upon methodology of interpretation. The famous legend of the rabbis ignoring God’s own voice and admonishing Him that “we pay no attention to Heavenly voice, because Thou hast long since written the Torah at Mount Sinai” is a story about who has the authority to interpret the text of a governing document. It is a story that has recurred throughout history. The foundational Supreme Court decision in Marbury v. Madison—in
which the justices claimed the authority to strike down unconstitutional laws and actions—is a variation on the talmudic story. Just as the rabbis asserted the power to interpret the Torah, so too the justices asserted the power to interpret the open-textured phrases of that enduring document according to contemporary needs and realities. I have heard judges argue that the framers, by including open-textured phrases, intended the Constitution to be subject to ongoing interpretation. Today a debate rages over whether the justices should be bound by “heavenly voices” claiming to know the elusive “original intent” of the framers or whether they should interpret the Constitution to be a living, breathing document, capable of adapting to change. I have heard rabbis make similar arguments about the Bible.

  The Book of Genesis contains the seeds of these enduring debates in its narratives about the path from fiat to justice—a path that is never direct and always reflects the inevitable detours of any human journey. In Genesis we see ad hoc rulings, followed by early attempts at limited codification, followed by more ad hoc rulings, followed by common-law development. Interspersed are bargains, contracts, covenants, tests, trials, changes of status, and other legal forms characteristic of developing systems of justice. We also see challenges to authority, rule breaking, cheating, reneging, renegotiating, legal technicalities, and other phenomena characteristic of human interactions with justice systems.

  After a rough beginning—out-of-control crime, a flood, a promise not to do it again—God establishes a covenant with Abraham, thus changing the status of both: God becomes a constitutional monarch, binding Himself to rules; and He bestows upon Abraham—and his progeny—a special status as partner in the covenant. Then, as if to discern boundaries of this new legal arrangement, God subjects Abraham to two seemingly inconsistent tests.

  Abraham passes the first with flying colors, thereby establishing as part of the common law of Judaism that it is not only permissible, it is obligatory to argue even with God about a proposed injustice. God later commands, “Tzedek, tzedek, tirdof”—“Justice, justice shall thou pursue.” The word “tirdof” literally means “to chase after”—as if never to catch. Perfect justice is not an achievable static concept. It is an imperfect process. Just as “the struggle for liberty never stays won,” so too the quest for justice is never achieved. The repetition of the word “tzedek” can now be understood as referring not only to human justice, but also to divine justice. Chutzpah k’lapei shemaya—humans must show chutzpah not only in demanding justice from the denizens of the earth, but also from He who rules the heavens. God willingly accepts this limitation on His absolute authority, boasting to the angels that “my children have defeated me” in argument. 10

  But there are limits to the limits. Humans can argue with God, but they cannot refuse to obey a direct order from Him. Just as an ordinary soldier can argue with his commanding officer about a battle plan, he cannot refuse to obey a lawful order. So in order to test Abraham’s commitment to this principle of the covenant, God gives him the most difficult direct order any human being can be given: Sacrifice your beloved son. Here we see a direct conflict between the rule of law as laid down in a binding legal code and ad hoc orders from the lawgiver himself as commanded personally by God.

  Abraham’s special status as a covenantal partner is a double-edged sword: It gives him special rights in relation to God (he may argue with Him), but it also imposes extraordinary obligations in relation to God—he may not refuse a direct, individualized order from God, even if it is in conflict with God’s general rules for the rest of humankind. 11 Kierkegaard points out the paradox that “faith” makes “the single individual … higher than the universal. Abraham represents faith [and] he acts on the strength of the absurd; for it is precisely the absurd that as a single individual he is higher than the universal.” 12 This is both the benefit and the burden of Abraham’s special status as a “knight of faith.”

  The role of status is pervasive throughout the Book of Genesis and is expressly recognizable in the case of Lot, who was spared on account—at least in part—of his close relationship to Abraham. Eventually status becomes subordinate to actions and intentions, as it does in the history of the law. 13

  Viewing Genesis as a book about the development of justice before the existence of a formalized legal system helps to explain why the narrative is so much about crime, sin, deception, revenge, punishment, and other bad actions. The law evolves from bad actions and the way they are dealt with. The common law is built on the wrongs, not the rights, of humankind. It is an accumulation of stories—narratives—about how human beings deal with each other’s failures. Open any law book—from the earliest year books of Anglo-Saxon law, to the volumes of Roman law, to the cases debated in the Talmud, to current Supreme Court decisions—and you will read about injustice. The common law of justice is always built on injustice. Just actions do not call for the same degree of response as unjust actions. Thus the genesis of justice in the injustice of Genesis is not as ironic as it may appear at first blush.

  Nor is it so difficult to understand the difference between the Book of Genesis, on the one hand, and the Christian Bible and Muslim Koran, on the other. The latter two books deal less with the development of law than does Genesis. Accordingly, they need not focus on the injustice of the primary actors. Law already exists at the time of Jesus. Indeed, in Jesus’ estimation it is too formal. He sees the need for mercy, grace and deformalization of the law. 14 He can show the way with examples of goodness and righteousness that transcend the rigidity of the law books of the Jewish Bible.

  A similar point can be made about Mohammed, who lived half a millennium after Jesus. Though the Koran deals with law to a greater extent than the New Testament, it is a somewhat later system, built as it is on the Jewish and Christian Bibles. Mohammed too can lead by example, without revealing the human weaknesses characteristic of his predecessors in the Book of Genesis.

  This interpretation also helps to reconcile the differences between the God of Genesis and the God of the later holy books. Since God is the ultimate Lawgiver—the manifestation of all law and justice—and since the law is first developing in Genesis, the God of Genesis is a developing God—a God who, like early legal systems, makes mistakes, acknowledges His mistakes, and learns by trial and error. The God of the subsequent holy books—the Christian Bible and the Koran—is a more perfect God, just as His law is a more perfect law and His heroes are more perfect heroes.

  The human actors in Genesis are also developing a sense of justice by trial and error. In the garden of Eden, a sense of justice was neither possible nor necessary. God reigned over the garden as a benevolent despot reigns over his compliant subjects—or perhaps as a shepherd rules his submissive flock. Since Adam and Eve had not yet tasted the fruit of knowledge of right and wrong, they had no more need for human justice than they had for shame. Shame is an acknowledgment of wrongdoing, which is a prerequisite to justice. Once they ate the fruit of knowledge, humans learned good from evil and realized that they had freedom of choice. Such freedom carries with it the possibility—indeed, the likelihood—that humans will sometimes choose evil. Without the threat of punishment, it is likely that humans would prefer evil over good, because the immediate gratifications of evil often outweigh the short-term rewards of goodness. That is why God looked down at the lawless antediluvian world and saw that “great was humankind’s evildoing on earth and every form of their heart’s planning was only evil all the day.” The time had come for law and order. In the wake of the flood, God set out the first rule of law: “He who sheds human blood shall have his blood shed by humans.” It is noteworthy that the Bible’s first prohibition against murder was based on status, rather than a rule of general applicability. “Whoever slays Cain will be punished sevenfold.” 15 Ironically, the first person to be protected against murder was the first murderer, since he reasonably feared retaliation.

  Now that God had announced to Noah a rule of general applicability, human beings stil
l had the freedom to choose between good and evil, but the choice carried consequences. Put another way, both of God’s initial experiments had failed. His first draft—the Garden of Eden—was a world without knowledge of good and evil. It was an idyllic world in which humans would live in perfect submissiveness to the will of God, with no need for justice, shame, or law. Humans, who were created in God’s image, rebelled against this happy ignorance. They chose instead the examined life of choice between good and evil, and for this they were, quite appropriately, banished from Eden. Knowledge is incompatible with the idyllic life of Eden.

  God’s second experiment was a world of choice, but without predictable consequences—without justice. God hoped that humans who knew the difference between good and evil would choose the former over the latter, without the promise of reward or the threat of punishment. But He soon learned that the instinct for evil—the yetzer ha-ra—is too powerful to allow humans to live by choice alone.

  God’s third experiment was a world of choice with consequences—with primitive rules whose violation carried severe consequences. God’s covenant with Noah initiated this experiment. Eventually God would see that the simple covenant He made with Noah, incorporating only the most basic of rules, was insufficient to govern the complex relationships between God and humans and among humans. He saw the need to establish a more complex covenant with Abraham and to teach His covenantal partner “to do what is right and just.” This marked the beginning of the common-law process of Genesis, in which God tests the patriarchs so that they and their descendants may learn how to do justice. Like any good teacher, He challenges and provokes His student by threatening to “sweep” the innocent along with the guilty. Abraham responds by arguing that it is better to save the guilty along with the innocent. Abraham’s logic may be flawed, but his instinct is right on target. Eventually the argument will become more refined, but it is a good beginning!