The Genesis of Justice

by Alan M. Dershowitz

  12. But monetary compensation is not mentioned for these specified wrongs. Traditional “translations” of the Bible sometimes insert the words “compensation of” before the words “eye,” “tooth,” and so on. See Samson, Raphael Hirsch, The Pentateuch (New York: Judaica Press, 1996). This denies the reader who does not understand Hebrew the distinction between p’shat (literal translation) and d’rash (rabbinic explanation). Although the rabbis themselves believed that monetary compensation is the p’shat, the reader should be permitted to decide for him or herself. In some parts of the world, even today, the blood feud persists and sometimes mandates “a 2-for-1 or even a 3-for-1 payback.” “The Curse of Blood and Vengeance,” Scott Anderson, New York Times Magazine, December 26, 1999, pp. 29, 33, 57.

  13. See generally, George P. Fletcher, Reflections on Felony Murder, 12 Sw. U. L. Rev., 413; 427-29 (1981).

  14. Exodus 21:32-37; 22:1-8. Sometimes “double restitution” is required.

  15. Numbers 35:31-32 prohibits the taking of money for the life of a killer. Commentators cite this in support of the conclusion that monetary compensation is permissible for injuries short of death. An extensive debate on this subject appears in Bava Kamma 83b-84a. The rabbis conclude that the Torah intended monetary compensation for non-lethal injuries.

  16. Exodus 23:7.

  17. Mishna Sanhedrin 9:5. Elon, Menachem, The Principles of Jewish Law (Jerusalem: Encyclopedia Judaica, 1974).

  18. Exodus 23:7. The Hebrew used the prefix ve- in listing “the innocent or who has been acquitted.” ve- means “and” rather than “or,” thus allowing the argument to be made that the commandment covers only an innocent person who has been acquitted, rather than a guilty one.

  19. Exodus 23:1-2. The stumbling block reference appears at Leviticus 19:14.

  20. Exodus 23:7.

  21. Deuteronomy 19:19.

  22. Genesis 17:12.

  23. Genesis 9:4. Even the laws of ritual slaughter of animals is said to derive from the manner by which Abraham began to slaughter Isaac: “If the deduction from the verse was made as a true law, then an immovable object is absolutely unfit…” (Midrash Rabbah, vol. 1, p. 496, n. 5). In addition, the concept of substituting an animal for a human sin sacrifice derives from this story. Idem. at p. 499: “Sovereign of the universe! Regard it as though I had sacrificed my son Isaac first and then this ram instead of him.”

  24. Genesis 4:3-5.

  25. Genesis 18:19.

  26. Deuteronomy 16:20.

  Readers Respond to

  THE GENESIS OF JUSTICE

  The modern version of the tale of independent Rabbinic decision making. It is not original with me, although I cannot recall where I first heard it. I have used it on a number of occasions and have yet to come across anyone—whether Rabbi, Priest or Minister—who was already familiar with it. So here it is:

  The Religious Practices Committee at Temple was having its final meeting to decide whether to adopt a new prayer book. The issue had been discussed at earlier meetings, but now it was time to decide. One member of the Committee commented he liked the book; it was easy to hold. Another agreed and said she liked the simple English. There were other comments in a similar vein. Finally, the Rabbi could no longer remain silent. He announced that the new prayer book might be easy to hold and it might contain simple English, but it did not set the right tone or reach the right level expected of a prayer book. The question was called, the vote was taken and the Chairman announced that the new prayer book had been approved 11 for and I against.

  At this the Rabbi was furious. “You cannot do this,” he shouted. “This book is an abomination. It must never be used in our Temple. I feel so strongly about this that I am calling upon God to send us a message about this book and to show you that I am right.” Suddenly there was thunder and a voice was heard declaring, “Your Rabbi is right; this book is an abomination.” The Committee members were in shock at what had just happened. The Chairman was the first to recover and he announced, “The vote is now 11 to 2!”

  —S.S.

  I believe it was Isaac, and NOT Abraham who was being tested on the mountain: Isaac carried the wood and fire up the mountain and then allowed his father to bind him and lay him on the altar. Clearly Isaac was a willing participant in the event. Why would Isaac allow himself to be sacrificed? Because, like his father, he had trust in God.

  Abraham may have showed moral trust in God, but Isaac was the one who showed both moral and empirical trust. In the falling backwards analogy, it was Isaac who “fell backwards” and—putting his faith in God and his father—willingly went to the slaughter.

  I also believe that God did not stop dealing directly with Abraham because Abraham failed the test, but because Isaac passed the test. Once God was sure that Isaac would abide by the covenant, He no longer had any need of Abraham. If Isaac had failed the test, God simply would have selected one of Abraham’s other children to carry on the family business.

  —J.P.

  Who are you to write or say what God is or what He does or how He does it. God created man not man created God. He put life into us, so that means He can take it away if He so desires, but because He is so merciful (always has been) He does not. I am praying that He shows mercy upon you when your day of judgment comes. Listening to your comments on the Today show have me wondering what Bible have you studied or what kind of teaching did you receive. I was always taught if your pastor is not teaching you right or you feel you are not getting what your soul needs then go somewhere else. I am praying for you and anyone that reads this book. The Bible speaks on trying the spirit to see if they are of God and I know that this one is not. It also speaks about not being deceived and this will do just that. It really bothered me to hear you say that God made a mistake. He does not and everything He does is good. God is not a man that He should lie neither repent. If you ask God to open your understanding to His word, He will do just that and you will see that there were many laws written in the book of Genesis…. May God have mercy on you and whoever had a part in writing and publishing this.

  —Y.V.

  The time during which Abraham stretches forth his hand is important. He has obeyed God’s command in that he has brought Isaac up to the designated spot and offered him. But he is also in the process of obeying the Noachide command regarding shedding. This time he doesn’t use words but rather actions to show God the ramifications of the conflict. God sees that Abraham is one who fears because of that slow motion. Given Abraham’s past character, I’d give him the benefit of the doubt. (The messenger, I’d suggest, is both God’s angel and, as your daughter offered, his good impulses combined. After all, the angel calls Abraham’s name twice. God only called once!)

  —P.K.

  Thank you for the opportunity to contribute my ideas to your own.

  In the creation account in Genesis 2, when God created human life, He created it out of dust or soil or clay we are told. Dust holds no shape, so I see the creation out of water and dust. What I find interesting is that both creation stories tell us that the water was here first and was not created by God. The water was here before God made the rain to fall. God, therefore, created human life out of that which He had created and that which He had not created. He breathed life into something of Himself and something not of Himself. He breathed life into the being knowing that they were made of God and of chaos. The story speaks of a tension between God and human life from the first moments of creation. The human used the five senses that God gave it to stand in wonder and awe of the Creator, and the Creator responded with the joy of one very pleased with what He has made. But then God divides the human into male and female, and all of creation changes direction. The “knowledge” that God so closely guards, while leaving it very available, was the knowledge that allows humans to focus on things other than the Creator. The two halves, male and female, discover (come to knowledge of) each other and all their attention is focused on the other. All the senses become involved in pleasing and sh
aring with the other human life, and God is now the third party, no longer the main focus of creation.

  We quickly learn that this Creator is a jealous and passionate God. He does not take kindly to being placed in a second position to the two halves who are seeking wholeness in something other than Him. This jealous God decides to change the rules of the game and to make life a little more difficult. The two humans must now learn to labor and struggle to survive, and they are forced to acknowledge their need for something beyond themselves. The other alone is not enough to satisfy in the world as it is now redesigned. Now God is needed, and while creation is different, God is again more important in the struggles of each individual. God has discovered that by making Himself too present to humanity, He was taken for granted. When He withdrew and separated Himself, He made Himself the object of wonder and awe, the mysterious unknown, which humanity must continue to struggle to discover. He is still available for a walk in the “breezy” time of the day, but He is not available in the same way He had been in the original garden. He has hidden His face and is now only available to those who seek and search, who labor and struggle. God still sees creation as good in every way, but He has chosen to be present to it in a different fashion.

  —G.A.C.

  I strongly disagree with your statement “What child could avoid wondering how Adam and Eve could fairly be punished for disobeying God’s commandment not to eat from the Tree of Knowing of Good and Evil, if—before eating of that tree—they lacked all knowledge of good and evil?” The concept of obedience relates to the relationship one has (and accepts) with authority, it is not relative to personal experience or the understanding of underlying concepts related to “why” the rules exist or why things are “good” or “evil.” I firmly believe my children don’t question in this way, and while I don’t hinder the yearning to learn they know that some rules exist simply for their own good, as determined by me on their behalf. For example, when I tell my child not to touch the burner on the stove, I don’t expect him to understand the physics of heat transfer and human neurology, nor do I expect him to doubt my instruction simply because he has never been burned to know what it is like.

  —K.H.

  In reading Part I, notes 11–13, I was reminded that a Hebrew schoolteacher of mine said that any interpretation of Torah is valid, no matter how unusual, naive, or off the beaten track. This is because when handing down the text on Mt. Sinai, God also whispered to Moses’ every possible interpretation that would ever be made of it in the future. Thus, even the thoughts of a child such as me were anticipated by God, and told to Moses long ago. How comforting and encouraging to a young and inquiring mind!

  —W.F.G.

  I believe in the progression of revelation. I think God has always had a perfect plan for man and the application of justice. Therefore, the greater burden lies on me today in applying God’s justice system than did on Abraham who lived in a society that practiced the sacrificing of children to appease their gods.

  Thank you for giving your readers the opportunity to communicate their thoughts and ideas with you.

  —L.E.R.

  In reading various scholars, as well as having heard many personal complaints, I have discovered a lot of cynicism regarding Abraham. Protests are made as to what kind of God could make such a demand or what kind of person would obey such a God. Others explain the story away as being merely a relic from a previous barbaric culture. Not that I am necessarily going to change any minds, but I have another take on this one-time event as it is told in the Scriptures.

  As we look at the life of Abraham, we find him to be a man willing to take bold initiatives. First he moves from Ur of Sumaria to Palestine at the request of God, which is like someone moving from New York City to Pulaski, Tennessee, in order to obey God. It is not often seen nor heard of. While involved in all of these moves, we find him to be a capable man in bartering, not only with world leaders, but with God as well; behavior which saved the life of his wife, as well as his nephew Lot, while the latter was in Sodom and Gomorrah. So why did Abraham not barter furiously with God when he was approached by God to sacrifice his son? First of all, Abraham had learned in all of his dealings with God that God was not only powerful but was trustworthy as well, even when God seemed unreasonable. Secondly, on this particular occasion, despite what it looked like on the surface, Abraham clearly had the advantage over God. He didn’t have to barter.

  You see, several years before God had made a covenant with Abraham—promising him not only a son for an heir, but more descendants than he could possibly count, as well as the land of Palestine for them to live on. In making this covenant, God had Abraham lay out a number of animals for a sacrifice and then God walked between the severed pieces. By doing this, God was offering up God’s very own life if God did not keep the promises God had made. Abraham knew that if Isaac his son would have died at the command of God, then God would have to do something very extraordinary in order to save God’s own hide, so to speak! In essence, if Abraham sacrificed his son, God had more to lose than did Abraham. And guess what?! God blinked! God stopped the sacrifice and provided Abraham with a ram. While Abraham certainly proved his trustworthiness, his obedience ultimately challenged God in a way that would be far more costly to God than to himself. And he knew it!

  —G.L.B.

  You are causing me to revisit the family relationships of Abraham, Sarah and Isaac.

  Do you suppose that Abraham never really got over the loss of Ishmael? I think that it might be possible. Do you suppose that Abraham was a little bitter because the very birth of Ishmael was a result of the conniving of Sarah? It was at her behest that he took Hagar to wife. Then perhaps, because he had listened to Sarah’s advice in that matter, that God “punished” Abraham by telling him to listen to Sarah’s wishes about sending Hagar and Ishmael off to the desert without proper provisions. How could Abraham ever, ever forget Ishmael? Abraham petitioned the Lord three times to favor the boy, but G-d said, no, no, no. [I find it interesting that Ishmael never forgot his father, as he attended his funeral so many years later that has always tugged at my heart when I read it.]

  Do you suppose Abraham loved Isaac, but not as much as he had loved Ishmael? I think that it is possible. It may not have been as hard as one might think for Abraham to accommodate the Lord G-d at the expense of his son. However, Isaac’s death also meant the end of that promise that YHWH made to Abraham that through Isaac would the nations of the earth be blessed, and in Isaac shall thy seed be called (Heb 11:18).

  Sarah must have been shaken, very shaken, perhaps bitter even, that Abraham would have tried to sacrifice Isaac. That brought on her death, perhaps, as you so well pointed out. I had not considered that.

  Isaac—what prompted him to get up on the altar without a sound and bow to his father’s will? Perhaps he was more afraid of Abraham’s wrath had he disobeyed, than of his own impending death. And you have made it more clear to me why Isaac didn’t descend the hill with his father. Perhaps the bond between them was broken forever, and he loved only his mother from then on.

  Abraham paid dearly for his faith. “Abraham believed G-d and it was counted to him for righteousness.” Gal 3:6. But what a high price he paid.

  Thank you for your book. My head reels as I make my way through it.

  —L.H.

  If Adam and Eve, like animals, had an ignorance of mortality, what fear would they have regarding God’s threat of death? Apparently, being immortal, they would have no comprehension of death. If I were to tell you that should you perform a particular act, “I will kravis you,” wouldn’t you look at me with an odd expression and ask, “What in the heck is that!?!” Yet A&E never inquire. So the question remains, did they know what death was and comprehended God’s threat, or were they just two blissful morons who could care less? I thoroughly enjoyed your premise that only upon receiving mortality did A&E have to make choices regarding Good and Evil. One more note, if God were omnipotent and omniscient, how could
HE not find Adam & Eve in the Garden of Eden? A being that is all seeing and all knowing should certainly be able to find two naked people in a garden.

  —J.A.

  A fallible God, who is fumbling for an understanding of both his human creatures as well as a balance between crime and punishment, is rooted in the Greek (and therefore Roman) divinities. While the ancient gods and the God of Genesis dispensed punishment in similar ways, God brings fire and brimstone to Sodom much as Apollo brought such perils to Agamemnon’s Achaeans in The Iliad, their relationship with man is markedly different. The Greeks and Romans saw their gods as operating with the same passions and motivations as themselves and are shown as bickering and conniving as their mortal counterparts. In such, these gods were not considered morally or intellectually superior to man, but were merely more powerful physically. What makes the God of Genesis remarkable is the moral mandate by which man grants God. The God of Genesis, at least in the way I have interpreted it, is obeyed because of a genuine respect for Himself and this moral mandate. Perhaps this difference lies in the inherent relationship between man and his God or gods. The God of Genesis was directly responsible for the creation of both the world and man, while the gods of the ancients were co-inhabitants of the world and were credited neither for the world nor for man. In this, man has an almost familial obligation to the God of Genesis, while ancient man has only a casual relationship with his gods. While democracy was able to flourish in a society acknowledging the ancient gods, justice was not (just ask Socrates). A democracy embracing the God of Genesis should seek to acknowledge its faults, its flaws and its own injustice and, in turn, seeks to grow and learn much as God did throughout the Old Testament.

  —M.G.

  1) Even though you made a very serious effort to use the terms human and humankind instead of the old anglo-saxon terms man and mankind, you have maintained that God is masculine. God is He, His, Him in your references. As I read God’s introduction to the people, there is a very definite avoidance of giving a name. In order to sidestep the baggage and responsibilities and superstitions that we find in the power of naming, God was to be unlimited, without definition, unboxed. The historical pattern of referring to God, the Father, The Patriarch, He, Him, His has come to mean that those of us who do not have sexual intercourse with women and beget children fall short of the image of God, so ergo only begetters are in the image of God and all the rest of us are subsidiary creatures. Women are “given” the roles of incubators for fetuses that become human beings with that first breath of life. That leaves a great multitude that have, do, and will walk the earth as secondary creatures.