The Genesis of Justice

by Alan M. Dershowitz

  Some people point to the reality that so many bad things happen to so many good people as the best proof of God’s nonexistence (or nonintervention). Citing Einstein’s famous dictum “God does not play dice with the universe,” they argue if it is true that a just God would not impose random injustice, it must follow that there is no such God, since it certainly appears that our universe is the product of dicelike randomness. Once when I was teaching a class with Stephen Jay Gould, the evolution expert, I wrote on the blackboard, “Gould or God?” I argued that you couldn’t have both since Gould postulates a world in which evolution is the product of random forces. Gould replied that what appears to be random to the human eye may be orderly to the divine and that in any event God is capable of randomness as well as order.

  Out of a perceived need to justify God’s justice, religious people have struggled for millennia to answer Job’s plaintive cry: Why me? Thoughtful religious people have devoted more time, energy, and creativity to this intellectual conundrum than perhaps any other in human history. That is probably why the redactors of the Bible included such troubling works as Job and Ecclesiastes, which address the problem of theodicy directly. Neither, of course, provides a wholly satisfying answer. Job’s friends try mightily to explain why he, a righteous man, has been so afflicted. Their basic answer is a variation on the naturalistic fallacy: If bad things are happening to you, you must deserve it, because God would never allow bad things to happen to a wholly good person. 4 God rejects this explanation and offers one even less satisfying: I am God. Mere mortals can’t understand Me. How dare you even try! Not only does this reductionistic nonanswer trivialize the question of theodicy, it discourages humans from even seeking to confront it.

  Ecclesiastes simply poses the problem, then offers little beyond a bit of hedonistic advice: Eat, drink, and be skeptical, for tomorrow you return to dust. Eventually he appends a coda—probably added by the redactors in an attempt to make Ecclesiastes religiously correct—that is hardly more satisfying: Put your faith in God and obey His commandments.

  The Abrahamic religions ultimately devised a more sophisticated and elegant solution to the problem of theodicy: an invisible hereafter where sin is punished and virtue rewarded out of sight of mortals. According to this solution, God has deliberately made the hereafter invisible, in order to see whether we are willing to accept it on faith. So despite the obvious injustice we see all around us, we are told not to trust our mortal perception. In urging His followers to have faith in the unseeable justice of the hereafter, God paraphrases a Groucho Marx line from Duck Soup: “Who are you gonna believe, me or your lying eyes?”

  The Bible goes through three phases in constructing a world of invisible justice. The early books of the Bible do not mention a hereafter. This omission is quite striking, considering the place—Egypt—where the Jews who received the Torah at Sinai had been living for so many years. The entire Egyptian civilization was based on the afterlife. Indeed, the very last sentence of the Book of Genesis describes Joseph’s Egyptian burial, his embalming, and the placing of his mummified body in an ark. 5

  Yet despite (or perhaps because of) this intimate knowledge of the Egyptian focus on the afterlife, the Jewish people accepted a Torah that appears to have eschewed life after death—or at least to have ignored it.

  This is not to suggest that the Bible rejects promises of reward and threats of punishment as a means of securing compliance with divine commands. The God of the Bible is a threatening and promising God. But in the Pentateuch God’s punishments and rewards are all administered here on earth.

  The first phase involves the threat of immediate and visible consequences here on earth. Among the threats that fit into this category is the first one God made to Adam: “On the day that you eat of the Tree of Knowing of Good and Evil, you will surely die.” Subsequent threats include the following: “I will kill you with the sword and your wives will be widows and your children fatherless.” “I will appoint terror over you, even consumption and fever,” “bring seven times more plagues,” “send beasts of the field among you, which shall rob you of your children,” “send pestilence,” “make your cities a waste,” 6 “smite you with … boils … itch … madness. … [T]hy life shall hang in doubt … and the Lord shall bring thee back to Egypt in ships.” 7 Among the visible rewards are the following: “[I will] lengthen your days on the ground that God has given you.” “[I]t will go well for you and lengthen your days.” 8 “I will give you rains …, cause evil beasts to cease out of your hands,” 9 “get thee high above all nations,” “cause thy enemies … to be smitten,” and “bless thee in thine land.” 10 Pretty specific, both as to where and when these punishments and rewards would be imposed! The “where” is here on earth, “on the ground that God has given you.” The “when” is now, in time to make your wives widows and your children orphans. There is no hint of an afterlife with postponed punishment and reward.

  Later commentators argued that the hereafter, with its invisible justice, always existed, despite the Pentateuch’s silence about it. But if God wanted humans to know that we will receive our divine comeuppance in a world to come, why did He keep it a secret from those He intended to be influenced by the promise and threat of postearthly consequences? 11 Surely He knows that here on earth, we see injustice all around us. Indeed, His own Bible places this observation in the mouth of Ecclesiastes: “In the place of justice, wickedness was there. … I have seen a righteous man perishing in his righteousness and a wicked man living long in his wickedness.” God Himself is often the moving force, as with Job. (Satan taunted God into testing Job, just as the serpent—which some commentators believe was Satan—tempted Eve to eat of the tree. But just as Eve was held responsible for her actions, so too must God be held responsible for killing Job’s innocent children, in order to test their father.)

  Had there been a belief in the afterlife at the time of Job, God could easily have explained Job’s suffering as temporal, to be remedied in the hereafter. Instead the midrash criticizes Job for denying “the resurrection of the dead.” 12 Other concerns about the earthly punishment of the righteous and reward of the unrighteous, which recur throughout the Bible, could have been answered by reference to the hereafter, but they were not.

  All humans observe earthly injustice all the time. 13 That is precisely why Job is such a powerful and enduring figure. Any observant person will surely notice an imperfect relationship—at best—between the sinner and the threatened death, plagues, beasts, and boils, as well as between the saint and the promises of long life and prosperity. Ecclesiastes tells us not “to be surprised at such things” or to expect otherwise. But human beings do expect more of their God than the randomness described by Ecclesiastes, whereby “all share common destiny—the righteous and the wicked” alike. “All go to the same place: all come from dust and to dust all return.” There must be some reward and punishment—somewhere, sometime. If life is random, why do we need God?

  God’s first attempt to answer that question fails. He cannot continue to threaten the kind of immediate and visible punishment of the type specified in the Adam story and then not carry it out. People will notice that Adam lived a long life. So God began to issue threats against individual sinners without specific time frames: Your wives will be widows (though not necessarily today). You will get boils and plagues (at some point in your life). But even such postponed punishments didn’t always happen. Not only did great sinners die of old age, they outlived their wives, without ever having experienced boils. So God had to take His system of punishments and rewards to the next level.

  In God’s second attempt to assure ultimate justice, He postpones the consequences of current actions beyond the life span of any particular generation, but still in this world. God threatens, in the Ten Commandments, to punish “the iniquity of fathers on children, to the third and fourth generation,” and He promises to show “mercy unto the thousandth generation of them that love Me and keep My commandments.” God
postpones punishment and reward until after the death of the sinner and saint repeatedly throughout the early books of the Bible, 14 thus making consequences invisible within a given generation. He has learned that by threatening immediate, specific, and visible punishments—such as He did to Adam—He risks a loss of credibility when these consequences do not materialize. By postponing the consequences beyond the life span of one generation, He maintains the deterrent credibility of His threats.

  The Bible and the midrash struggle mightily to demonstrate that God’s threats and promises are in fact carried out in future generations. Particularly in the stories of Jacob and his children, the Book of Genesis provides numerous examples of people who reap what they sow. The midrash elaborates on this theme with its moralistic stories of descendants who receive payback for the vices and virtues of their ancestors. Remember Cain, whose evil “overtook him in the seventh generation,” when a descendant accidentally shot him with an arrow.

  This generational invisibility can survive only in a world without recorded history (or with the sort of recorded moralistic folktales concocted by the midrashic storytellers). In a world of accurately transmitted accounts, it will soon be seen that dreadful things do not necessarily befall the descendants of sinners, nor do blessings attend the offspring of saints. Indeed, after the Crusades, the Inquisition, and the Holocaust, it was obvious that God could not keep His promise and reward the descendants of saints, for the simple reason that in many instances no descendants were left alive. Entire families, entire villages, entire communities, were wiped out—their seed forever crushed—by unrighteous people who went on to become builders of cities and respected leaders. Many Nazi murderers lived untroubled and guilt-free lives of wealth, health, and reward. Their children and grandchildren honor their memories. The victims of genocide and other human horrors crave ultimate justice, insisting that somehow, somewhere, sometime, the righteous must be rewarded and the unrighteous punished. This deep yearning for retribution helps to explain why even sixty years after the Holocaust, children and grandchildren of victims persist in their lawsuits against corporations that profited from slave labor. I understand the anger of victims when I occasionally help to free a probably guilty killer, who then goes on to live what appears to be a good life. I have felt that anger myself and continue to feel it when I see a Nazi collaborator like John Demjanjuk living a long and healthy life surrounded by loving family.

  There is rarely perfect justice here on earth. There is no complete answer to the question of theodicy in this world, even if threats and promises are postponed for many generations.

  Moreover, the concept of punishing and rewarding descendants raises troubling moral questions about individual versus familial or group accountability. It simply isn’t fair to punish an innocent person for another’s sin. This issue first arose when God punished Adam and Eve, not only by exiling them as individuals, but by inflicting painful sanctions on all working men and childbearing women. If the murder of Abel by Cain is also seen as part of the punishment of their parents, then the life of the innocent Abel was forfeited to avenge a crime he did not commit.

  The flood, the destruction of Sodom and Gomorrah, and the slaughter of the entire clan of Shechem are other examples of collective or familial punishment. The subsequent law books articulate conflicting rules regarding this difficult issue. The Ten Commandments threaten punishment “to the fourth generation,” while Deuteronomy, thought to be a later work, mandates that “fathers shall not be put to death for children, neither children be put to death for fathers: every man shall be put to death for his own sin.” The commentators struggle to reconcile these apparently conflicting texts. 15 In addition to contradictory rules, we see inconsistent practices throughout the Bible. God commands the destruction of Amalek throughout the generations for the crimes of one generation. He threatens reprisals on the descendants of sinners and rewards on the descendants of just people. Sometimes the collective punishment is vertical (down through the generations), other times it is horizontal (within one generation, but extending to the entire family, clan, or city). Yet paradoxically, God appears to agree with Abraham that the innocent should not be swept along with the guilty.

  Even today we have conflicting attitudes toward parental responsibility for the acts of their children. In the wake of the shootings at Columbine High School there were calls for expanding the civil and criminal liability of parents. Following the defeat of Nazi Germany, there were calls for collective sanctions against the German people. But in the end, the decision was made to punish only those individuals whose guilt could be proved. 16 The Allies refused to employ the concept of Sippenhaft—punishment of kin—which had been widely used by the Nazis.

  Eventually Jewish law accepts the principle that it is wrong to punish (or reward) anyone for the sins (or good deeds) of another; punishment and reward, if they are to be just, must be individualized. 17 This principle, which develops over time, is easier to articulate in theory than to apply in practice. Whenever we punish an individual for his crimes—by execution, imprisonment, fine, or other sanction—we inflict harm on his innocent family, friends, associates, employees, and others within his circle. The corollary to this reality is that when we reward an individual for his good deeds, some of that reward may benefit those who did not themselves earn it. Some degree of collective punishment and reward may be inevitable in any system of individualized justice, but there is an important difference between systems in which collective sanctions are an explicit part of the process and those in which they are an inevitable by-product. The movement from collective responsibility—of the family, the clan, the tribe, the city, the nation, the race, the religion, and so on—toward individualized responsibility is reflected in the Book of Genesis. It has not been a linear movement in history, because the emotional pull of collective accountability remains powerful.

  Thus, God’s second attempt to assure His followers that there is ultimate justice in this world fails for two reasons, one empirical, the other moral. Empirically it becomes clear, once recorded history is developed, that descendants do not necessarily reap what their ancestors have sown. Morally we are troubled by a system of justice that relies on vicarious accountability. So the theologians of Judaism, Christianity, and Islam had to accept the solution offered by other religions—namely, a world to come in which the righteous are rewarded and the unrighteous punished. Justice would indeed be served, but in a world no human could see and from which no human could return or report. An elegant solution to an otherwise insoluble problem.

  The sharp difference between the earthly promises and threats of the early books of the Bible and the otherworldly punishments and threats of the talmudic commentators is beautifully illustrated by a chilling story about a second-century rabbinic sage named Elisha, the son of Abuyah, who became a disbeliever after he saw, with his own eyes, that one of God’s most explicit promises was not kept. Tradition has it that Elisha was studying on Sabbath in the valley of Gennesar when he saw an evil man climb to the top of a palm tree and take a mother bird along with her young. He thus violated two commandments: to keep the Sabbath and to send away the mother bird. Yet nothing happened to him. After the Sabbath, Elisha saw a young boy climbing a tree to retrieve some bird eggs. His father instructed him to send away the mother, and the young boy did so, thus obeying the two commandments, which explicitly promise long life. Yet as soon as he descended the tree, the good boy was bitten by a snake and killed. Rabbi Elisha cried out against this betrayal: “There is no justice, and there is no judge.” 18

  According to the tradition, Rabbi Akiva—the greatest sage of his time—responded to Rabbi Elisha’s apostasy by explaining that despite the seeming explicitness of the text, the promise of a long and good life is not in this world, but rather “in the world to come,” which is “wholly good” and “whose length is without end.” 19 It is also, of course, a world invisible to those on earth, and thus any promise or threat involving this world is not sub
ject to observation or verification.

  The story of Rabbi Elisha is telling for a number of reasons. No rational person would believe a promise of reward and punishment in this world, where the young die, the righteous are punished, and the unrighteous are rewarded—all in plain view of everyone. Rabbi Elisha was the reasonable skeptic, believing his own eyes and concluding that the first mechanism of biblical sanction—immediate consequences here on earth—was demonstrably false. Ecclesiastes recognized the injustice of life and the emptiness of death yet accepted God. King David blinded himself to the injustice of life by declaring that he had never seen a “righteous person abandoned or his children wanting for bread.” 20 But those who did not live as privileged kings saw a real world full of iniquity. As a result, Judaism had to accept the prevailing view of other—sometimes competing—religions of the day. The sages searched the sources, particularly the prophetic writings, and declared that despite the pregnant silence of the Pentateuch, there is life after death, with reward and punishment. Rabbi Eleazor was certain that “wherever there is not judgment [below] there is judgment [above].” 21 Maimonides elaborated on this theme and attempted to reconcile the world to come with the rather explicit language of the Bible specifying earthly punishments and rewards:

  Hence, all those benedictions and maledictions promised in the Torah are to be explained as follows: If you have served God with joy and observed His way, He will bestow upon you those blessings and avert from you those curses, so that you will have leisure to become wise in the Torah and occupy yourselves therewith, and thus attain life hereafter, and then it will be well with you in the world which is entirely blissful and you will enjoy length of days in an existence which is everlasting. So you will enjoy both worlds, a happy life on earth leading to the life in the world to come. For if wisdom is not acquired and good deeds are not performed here, there will be nothing meriting a recompense hereafter, as it is said, “For there is no work, no device, no knowledge, no wisdom in the grave” (Ecclesiastes 9:10). But if you have forsaken the Lord and have erred in eating, drinking, fornication, and similar things, He will bring upon you all those curses and withhold from you all those blessings till your days will end in confusion and terror, and you will have neither the free mind nor the healthy body requisite for the fulfillment of the commandments so that you will suffer perdition in the life hereafter and will thus have lost both worlds—for when one is troubled here on earth with diseases, war or famine, he does not occupy himself with the acquisition of wisdom or the performance of religious precepts by which life hereafter is gained. 22