The Genesis of Justice

by Alan M. Dershowitz

  Jews and Christians number the Ten Commandments differently. For Jews, number one is not even a commandment. (The Hebrew for the Ten Commandments is the Ten Statements—Divrot.) The first statement is a declaration of faith: “I am the Lord thy God.” It is immediately followed by a summary of the earlier narrative: “… who brought thee out of the land of Egypt, out of the house of bondage.” It could well have continued: “… into which I placed you by sending Joseph to Egypt and having him summon his brothers and father.” After all, this was not the first time God had revealed Himself. He had previously made covenants with Jacob, Abraham, and Noah. Thus the First Commandment grows directly out of the earlier narratives.

  Christians begin with the theological commandments—“Thou shalt have no other gods before me,” “Thou shalt not make unto thee a graven image,” “Thou shalt not bow unto them or serve them,” “Thou shalt not take the name of the Lord thy God in vain”—all of which have their sources in the shift from idolatry to monotheism narrated in the Abraham story. According to a midrash, Abraham’s father, Terach, was a maker of idols, and one day Abraham then “took a hatchet in his hand, and broke all his father’s gods,” except for the biggest one. 4 When his father saw the smashed idols he became angry, but Abraham denied breaking them, blaming it on the largest of the idols in whose hand he had planted a hatchet. Terach accused Abraham of lying. To prove that the large idol had been framed, Terach argued:

  Is there spirit, soul, or power in these Gods …? Are they not wood and stone? [H]ave I not myself made them?

  Abraham responded:

  How, then, canst thou serve these idols in whom there is no power to do anything? Terach then took the hatchet from the hand of the large idol and smashed it, 5 thus demonstrating his rejection of false gods, graven images, and idol worship. Hence the commandments against these theological sins.

  The Fourth Commandment—“Remember the Sabbath to keep it holy”—derives explicitly from the creation narrative. Indeed, the commandment concludes: “For in six days the Lord made heaven and earth, and all that is in them, and rested on the seventh day; wherefore the Lord blessed the Sabbath day and hallowed it.”

  The Fifth Commandment—“Honor thy father and thy mother”—has roots in the stories of dishonor cast upon parents in Genesis. Jacob tricks his feeble father; Shim’on and Levi dishonor their father by deceiving and murdering the clan of Shechem; Joseph dishonors his father by deceiving him into sending his youngest son to Egypt; Rachel dishonors her father by stealing his idols and covering up her theft; Cain dishonors his parents by killing their son; Lot’s daughters dishonor their father by getting him drunk and raping him; Noah’s son dishonors his father by seeing his nakedness and then telling his brothers; even Abraham may have dishonored his father by tricking him into giving up his idol worship. Indeed, it can be said that the Book of Genesis is a collection of stories about children dishonoring parents. Clearly, human beings needed a commandment from on high to resolve their intergenerational conflicts.

  The Sixth Commandment—“Thou shalt not murder”—has its roots in God’s command to Noah, “Who so sheddeth man’s blood by man shall his blood be shed.” This rule is derived from another narrative: “For in the image of God made He man.” The Book of Genesis relates the stories of several murderers and attempted murderers: Cain, Shim’on, Levi, and Abraham. Yet none is punished by death, despite the Noachide covenant. The need for a clear directive is apparent.

  The Seventh Commandment—“Thou shalt not commit adultery”—is a bit more difficult to trace directly to a specific narrative. There are, of course, numerous stories of forbidden sex (or at least close calls)—Sarah and Rifka with the kings; Lot with his daughters; Tamar with her father-in-law; Reuven with his father’s mistress; 6 Potiphar’s wife with Joseph—enough to warrant a specific prohibition in the Ten Commandments.

  The Eighth Commandment—“Thou shalt not steal”—also has roots in the narrative. The midrash traces this prohibition to the Garden of Eden, where God tells Adam: “Of every tree of the Garden thou shalt freely eat: here He commanded him against theft.” 7 Adam and Eve violated this command by taking fruit from a prohibited tree. There are other stories of stealing in Genesis, including Rachel’s theft of her father’s idols. Rachel may have believed that it was permissible to steal idols in order to prevent idol worship—an act of religiously motivated civil disobedience akin to the blocking of an abortion clinic—but the commandment is absolute.

  The Ninth Commandment—“Thou shalt not bear false witness against thy neighbor”—derives directly from Potiphar’s wife bearing false witness against Joseph and Joseph then bearing false witness—even as a pretense—against his own brothers. Yehuda’s desperate question “How can we clear ourselves?” is answered by this prohibition and by the subsequent procedural safeguards that rest on this commandment. Moreover, the earliest biblical narratives support the right of an accused person to a defense—at least against God. God gives Adam and Eve an opportunity to defend themselves and gives Cain the same right. Abraham defends the people of Sodom. God also insists on coming down to earth to see for Himself whether the Sodomites deserve destruction. Hearsay is not good enough even for God. He insists on direct eyewitness observation. But the clan of Shechem is given no opportunity to defend itself against human vengeance. Nor are other victims of human injustice. The need for procedural safeguards against false accusations by human beings is evident.

  Finally, the catch-all commandment against coveting one’s neighbor’s house, wife, manservant, maidservant, ox, ass, “nor anything that is thy neighbor’s,” is a general protection against the evil impulses (yetzer ha-ra) that cause theft, adultery, murder, and the bearing of false witness. The narrative of Genesis is all about these evil impulses and the need to check them by specific rules, laws, and commandments. It was obviously not enough for God to encounter Abraham so that “He may command his children and his household after him that they may keep the way of the Lord, to do righteousness and justice. …” 8 Such generalities had failed to produce an end to lawlessness, deception, even murder. More specific rules, with prescribed sanctions, were necessary. The narratives of Genesis made the need for the Ten Commandments, and the laws that followed them, abundantly clear.

  A midrash associates each of the Ten Commandments specifically with the Joseph narrative. It takes the form of an explanation for why Israel carried the dead body of Joseph alongside the newly acquired Tablets of the Law. In the Tablets it is written:

  I am the Lord thy God, and [Jacob] said, Am I in the place of God? Here it is written, Thou shalt have no other gods before My face, and he said, I fear God. Here it is written, Thou shalt not take the name of the Lord thy God in vain, and therefore he did not swear by God, but said, By the life of Pharaoh. Here it is written, Remember the Sabbath day, and he said to the overseer of his palace on Friday, Slay and make ready, meaning for the Sabbath. Here it is written, Honor thy father and thy mother, and he said, when his father desired to send him to his brethren, Here I am, although he knew it was perilous for him to go. Here it is written, Thou shalt not kill, and he refrained from murdering Potiphar when Potiphar’s wife urged him to do it. Here it is written, Thou shalt not commit adultery, and he scorned the adulterous proposals of Potiphar’s wife. Here it is written, Thou shalt not steal, and he stole nothing from Pharaoh, but gathered up all the money and brought it unto Pharaoh’s house. Here it is written, Thou shalt not bear false witness against thy neighbor, and he told his father nothing of what his brethren had done to him, though what he might have told them was the truth. Here it is written, Thou shalt not covet, and he did not covet Potiphar’s wife. 9

  Beyond the Ten Commandments, perhaps the most influential legal principle associated with the Bible is the “talion,” 10 first articulated in the Book of Exodus 11 in the following terms:

  If any harm follow, then thou shalt give

  life for life

  eye for eye

  tooth
for tooth

  hand for hand

  foot for foot

  burning for burning

  wound for wound

  stripe for stripe.

  This principle of “measure for measure” or strict proportionality between the harm caused and punishment inflicted has been the source of much controversy since it was first articulated. Its purpose can best be discerned by going back to the nature of the world that preceded and gave rise to it—the world of Genesis. At the beginning of that world, punishment was anything but proportional. God was too lenient on Cain, too harsh on the victims of the flood and the brimstone, too unpredictable in relation to Adam and Eve, and too harsh in His testing of Abraham.

  Human justice was similarly disproportional, as evidenced by the mass slaughter of the entire clan of Hamor for the sin of Shechem.

  The Jacob and Joseph narratives show a world moving toward some sense of symbolic symmetry in which people reap what they sow. Jacob wove a web of deceit that entangled those around him. Joseph tricked those who tricked him. God later inflicted plagues on the Egyptians that paralleled the harms they inflicted on the Hebrews, culminating in the killing of the first-born Jewish males. Still, the punishment generally exceeded the crime, though the law was plainly moving in the direction of adopting the talion as the overarching substantive principle of justice. Finally, we see its codification in words that demand precise proportionality, thus imposing a strict limitation on punishment. Prior to introduction of the talion the principle of disproportionate revenge had been the norm throughout the world: You kill one, we kill an entire city; you blind me, I kill you; you wound me, I torture you and your family. Now the punishment must fit the crime, and it may not exceed the harm caused. Even before the rabbinic authorities mitigated the rigors of the talion by interpreting the taking of limbs as monetary compensation, the principle itself—harsh as it sounds to the contemporary ear—constituted a major step forward in the eternal quest for justice, fairness, and proportionality, since it imposed strict limits on punishment. To the ancient ear, the rule sounded like “No more than one life for a life, no more than one eye for an eye,” and so on. 12 It marked the end—at least in theory—of the retaliatory blood feud with its characteristic destruction of entire clans, villages, and families. What Dina’s brother did to the clan of Hamor could no longer be justified by the rhetorical question: “Should one deal with our sister as with a harlot?” Following the adoption of the talion, the answer to that question was limited by the rule of proportional justice.

  The Bible, read literally, sends a complex message about law enforcement. The substantive law is somewhat harsh—an eye for an eye, death for a wide range of sins and crimes, including some that would seem trivial to contemporary sensibilities. The procedural law, on the other hand, made it extraordinarily difficult to convict people of the harsh substantive offenses. The end result was a system under which—at least in theory—few could be convicted and exposed to the harsh penalties, but those few who were convicted could be punished excessively. The deterrent message of such a system is that while any given violator may get away with it, those who are convicted will receive a punishment sufficient to frighten anyone contemplating wrongdoing. We follow a similar approach today in enforcing our tax laws, prosecuting few but punishing those who are convicted excessively in order to send a credible deterrent message. 13 Experience teaches that this kind of a system does not always work effectively, since most potential criminals don’t believe they will actually be caught and convicted. A system in which punishment is both more certain and more moderate works better. The rabbis of the talmudic period realized this and moderated the substantive punishments by substituting monetary damages for the “eye” and “limb” of the talion while at the same time making it far easier to punish factually guilty offenders who were acquitted under the rigorous procedural requirements of the Bible. By thus interpreting the talion, they would appear to have violated the literal words of the Bible.

  For example, Exodus 21:24 is clear that an “eye for an eye, a tooth for a tooth, a hand for a hand, a foot for a foot, a burn for a burn, a wound for a wound, a bruise for a bruise” does not mean monetary compensation. The very same chapter explicitly specifies “monetary compensation” for other wrongs. 14 Indeed, an eye for an eye is specifically contrasted with monetary payments: “[I]f no harm follow, he shall surely be fined. [B]ut if any harm follow, then he shall give life for life, eye for eye,” and so forth. 15

  The procedural requirements of the Bible are equally clear, particularly its protection against double jeopardy: “Do not execute one who is innocent or one who has been acquitted.” 16 Yet the rabbis devised an approach designed to circumvent the express procedural protections of the Bible. If a person was acquitted of murder because only one witness had seen him kill—the Bible requires two witnesses—he was not set free, as the Bible commands. Instead he was placed in a locked room, where he was fed a lethal concoction of water and grain calculated to cause his stomach to burst. 17 Contemporary society has come up with a term for such extralegal punishment: It is called “vigilante justice,” which in reality is an oxymoron.

  The rabbis justified this extrabiblical punishment as necessary to prevent lawlessness. They may have been right, but that would have implied that the Bible was wrong! The rabbis could not, of course, acknowledge that the biblical procedures were too stringent, so they came up with a series of rationales for why their approach was consistent with Scripture. Nevertheless, killing a defendant who has been found not guilty by the formal legal system simply cannot be reconciled with the explicit biblical command “Do not execute one who is innocent or who has been acquitted.” 18

  It is difficult to identify any genre of later biblical rules, from the most general to the most specific, which does not have its source in the early—preSinai—narratives of the Bible. The prohibition against placing a stumbling block in the way of the blind—which has been interpreted as a broad directive to be fair—has its source in Jacob’s deception of his blind father. The rules that require two witnesses protect against false accusation. The biblical law is particularly harsh when it comes to bearing false witness, because, as we have seen, Genesis is so rife with tales of false accusation and injustice. “Thou shalt not utter a false report; put not thy hand with wicked to be an unrighteous witness. Thou shalt not … bear witness in a cause to turn aside after a multitude to prevent justice.” 19 “Keep thee far from a false matter; and the innocent and righteous slay thou not.” 20 The principle of the talion was explicitly imposed on the bearer of false witness. His punishment was the precise punishment that would have been inflicted on the victim of his false testimony. 21

  Even many of the ritual laws have sources in the narrative of Genesis—ranging from circumcision, which God directly commands Abraham to perform on every male throughout the generations; 22 to the kosher laws, which begin with Noachide prohibition against eating blood, 23 continue with the sinew, and then later develop in the law books into a catalog of specific dos and don’ts; to sacrifices, which begin with the story of Cain and Abel 24 and then continue to Noah and to Abraham and his progeny. General ethical prescriptions, which begin with God’s directive “to do righteousness and justice” 25 and continues to the grand admonition, “Justice, justice, shall you pursue,” 26 also trace their sources to the narratives of unrighteousness and injustice in Genesis.

  The genesis of justice is in the narratives of injustice found in the Book of Genesis. There are also examples of justice and nobility, but these are to be expected in a book of religious narratives. What is remarkable is how the Bible uses stories of injustice to teach about the need for justice. This inspired collection of tales tells the story of the law’s development throughout the ages: Lawlessness and injustice provide the impetus for change and improvement. Understanding the complexities of justice—historical and contemporary—requires an understanding of the passions of the people of Genesis. We continue to strive, through la
w and other social controls, to suppress the yetzer ha-ra—the evil inclinations—that all humans possess and to encourage the yetzer ha-tov—the good inclinations—that most humans also possess. This story is told in Genesis. It will continue as long as Adams and Eves are tempted by serpents, Cains are enraged by jealousy, Abrahams fight for justice, Jacobs succeed by deception, Tamars are blamed for men’s passions, Josephs are falsely accused, and God does not always bring about visible justice.

  In other words, the story of Genesis will continue until the end of humankind.

  1. Genesis 32: 33.

  2. The rabbis call a vague, symbolic association between a narrative and a rule asmachta.

  3. Maimonides struggles to find the source for the commandment to circumcise males in the subsequent law book, where it is in fact found: Leviticus 12: 3. But it is found earlier in God’s covenant with Abraham: Genesis 17:11.

  4. Several midrashim elaborate on Abraham’s break with his father’s idolatry. See Midrash Rabbah, vol. 1, p. 310. See also Ginzberg, Louis, The Legends of the Jews (Baltimore, MD: Johns Hopkins University Press, 1998), p. 214.

  5. Midrash Rabbah, vol. 1, pp. 214-15.

  6. 35: 22.

  7. Midrash Rabbah, vol. 1, p. 131.

  8. Genesis 18:19.

  9. Ginzberg, vol. 2, p. 183.

  10. 21: 23-25.

  11. The Code of Hammurapi adumbrated this concept, but without regard to individual culpability. For example, Hummurapi ordered the killing of the daughter of a man who has killed another’s daughter. See Plant, W. Gunther, Ed., The Torah: A Modern Commentary (New York: Union of American Hebrew Congregations, 1981), p. 574.