The Genesis of Justice Read online

  PRAISE FOR

  THE GENESIS OF JUSTICE

  “Lawyer, teacher, essayist, novelist—and now biblical scholar? Whatever Alan Dershowitz writes is worth reading. His new volume of commentaries and interpretations is a case in point. As with all his books, this one is stimulating and enriching.”

  —Elie Wiesel, Nobel Prize Winner

  “A thoroughly engrossing and provocative presentation … the best interactive moral teaching tool ever devised…. [Dershowitz]’s perspective is fresh, and the reader will be entertained and stimulated. THE GENESIS OF JUSTICE never fails to engender reflection.”

  —Southeastern Virginia Jewish News

  “THE GENESIS OF JUSTICE is a book that, like the text it analyzes, needs to be studied, not merely read. It is a good primer for those unfamiliar with the Judaic tradition of biblical interpretation and is valuable for anyone who has an interest in the foundations and processes of our legal system.”

  — Tampa Tribune-Times

  “Dershowitz’s undeniably thorough and penetrating legal analysis yields fascinating passages… . It’s fun to see Dershowitz’s skill at building many-leveled trial arguments from the few available facts.”

  —American Lawyer

  “An important contribution.”

  —Publishers Weekly

  “A fascinating book … stimulating and engaging.”

  —Salt Lake City Deseret News

  “Alan M. Dershowitz breathes life and disputation into that most lively and disputatious biblical text, the Book of Genesis. THE GENESIS OF JUSTICE is a feisty, freewheeling investigation into the tangled roots of our moral imagination.”

  —Henry Louis Gates, director, The W. E. B. DuBois Institute for Afro-American Research, Harvard University

  “This book is heresy at its best! Alan Dershowitz perfectly describes the view of an imperfect God in search of justice. While religious fundamentalists will strongly disagree with the author’s interpretations of the biblical text, they will appreciate his observation that social justice is rooted in biblical truth and modern law is based on the Ten Commandments.”

  —Jerry Falwell, chancellor, Liberty University, Lynchburg, VA

  “Alan Dershowitz, a lawyer and lifelong student of the Bible, engagingly explains to the lay reader just how the moral morass traversed in the first book of the Bible was a necessary step in laying the groundwork for our highest ideals of what is right and wrong. The book suggests a whole new bridge between religion and law.”

  —Harvey Cox, Thomas Professor of Divinity, Harvard University, author of The Secular City and Fire from Heaven

  “A wonderful book! A great read! … Alan Dershowitz has now come up with a fascinating, thoughtful, irreverent, funny, insightful, legal/moral commentary on the book of Genesis. This is a challenging reflection on the interaction of law, ethics, and religion.”

  — Rabbi Irving Greenberg

  “Alan Dershowitz displays all his formidable skills…. Deftly and entertainingly, he tells us how the elusiveness of divine justice in the earliest biblical narratives helped inspire later positive law that is more accessible, predictable, and apparently equitable. It should be read by all who are interested in religion, justice, or both.”

  —Mario Cuomo

  “These reflections on biblical stories will provide entertainment and intellectual stimulation for readers of all faiths…. Alan Dershowitz reveals himself as a master of midrash.”

  —MaryAnn Glendon, Learned Hand Professor of Law,

  Harvard University

  ALSO BY ALAN M. DERSHOWITZ

  Psychoanalysis, Psychiatry, and Law

  (with Jay Katz and Joseph Goldstein)

  Criminal Law: Theory and Practice

  (with Joseph Goldstein and Richard D. Schwartz)

  The Best Defense

  Reversal of Fortune: Inside the von Bülow Case

  Taking Liberties: A Decade of Hard Cases, Bad Laws, and Bum Raps

  Chutzpah

  Contrary to Popular Opinion

  The Advocate’s Devil

  The Abuse Excuse: And Other Cop-Outs, Sob

  Stories, and Evasions of Responsibility

  Reasonable Doubts

  The Vanishing American Jew: In Search of Jewish

  Identity for the Next Century

  Sexual McCarthyism: Clinton, Starr,

  and the Emerging Constitutional Crisis

  Just Revenge

  Copyright

  Copyright © 2000 by Alan M. Dershowitz.

  All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review.

  Hachette Book Group,

  237 Park Avenue,

  New York, NY 10017.

  Visit our website at www.HachetteBookGroup.com

  ISBN: 978-0-7595-2181-0

  First eBook Edition: October 2009

  I lovingly dedicate this book to my mother, Claire Dershowitz, and to my late father, Harry Dershowitz, who provided me with my background in the Bible and with the freedom to raise questions. They were the genesis of my interest in both the Bible and justice.

  Genealogy of the Major Biblical Characters Discussed in The Genesis of Justice*

  Table of Contents

  Copyright

  Praise for the Genesis of Justice

  Also by Alan M. Dershowitz

  Acknowledgments

  PART I: WHY GENESIS?

  PART II: THE TEN STORIES

  Chapter 1: God Threatens—and Backs Down

  Chapter 2: Cain Murders—and Walks

  Chapter 3: God Overreacts—and Floods the World

  Chapter 4: Abraham Defends the Guilty—and Loses

  Chapter 5: Lot’s Daughters Rape Their Father—and Save the World

  Chapter 6: Abraham Commits Attempted Murder—and Is Praised

  Chapter 7: Jacob Deceives—and Gets Deceived

  Chapter 8: Dina Is Raped—and Her Brothers Take Revenge

  Chapter 9: Tamar Becomes a Prostitute—and the Progenitor of David and the Messiah

  Chapter 10: Joseph Is Framed—and Then Frames His Brothers

  PART III: THE GENESIS OF JUSTICE IN THE INJUSTICE OF GENESIS

  Chapter 11: Why Is There So Much Injustice in Genesis?

  Chapter 12: Why Does the Bible Begin at the Beginning?

  Chapter 13: Is There Justice in This World or the Next?

  Chapter 14: Where Do the Ten Commandments Come From?

  Readers Respond to The Genesis of Justice

  Acknowledgments

  This book was begat by a long line of patriarchs, matriarchs, friends, and relatives. First and foremost are my parents and grandparents who imbued me with a love of the Bible and Jewish learning. My teachers, whom we too often treated with disrespect, provided me with the basic tools for understanding the Bible. I apologize to them for taunting them and misbehaving in their classes. I know they will be surprised that I learned anything, but believe it or not, I really did. My Yeshiva friends, many of whom are still my friends, were and remain an important part of my education. The students in my Bible seminar at Harvard Law School helped me test my theories and hone my interpretative skills. My friends on Martha’s Vineyard, who joined my wife and me for the weekly Bible class, contributed brilliant insights. My friends, colleagues, and relatives in Israel, who shared their perspectives with me, helped to broaden my approach. Special appreciation to my friends and colleagues who reviewed the manuscript and pointed out its numerous mistakes.

  I owe an enormous debt to the countless biblical commentators who, over
the millennia, have elaborated, explained, challenged, translated, and kept alive the words of the Bible. Everyone who reads the Bible today stands on the shoulders of giants.

  A special word of appreciation to the Morton Foundation and to Morton and Rosalind Davis, for helping to defray the expenses of my research trip to Israel, and to the Gruss Foundation, for providing research support at Harvard.

  My usual thanks to my wife, Carolyn, my mother, Claire, my in-laws, Dutch and Mortie, my children Elon, Jamin, and Ella, my daughter-in-law, Barbara, my grandchildren, Lori and Lyle, my brother, Nathan, my sister-in-law, Marilyn, my nephew, Adam, my niece, Rana, my brother-in-law, Marvin, my sister-in-law, Julie, and my nephews, Isaac and Jonah—all of whom contributed in different ways. My thanks as well to my friends, Murray and Malkie Altman, Bernie and Judy Beck, Zolly and Katie Eisenstadt, Carl and Joan Meshenberg, Hal and Sandy Miller-Jacobs, Josh and Rochelle Weisberger, Barry and Barbara Zimmerman, Tsvi Groner, Martin Levine, Alan Rothfeld, Ken and Gerry Sweder, Israel Ringel, Michael and Jackie Halbreich, Alex MacDonald, Maureen Straford, Naomi Foner, Jeffrey Epstein, Maureen White, Jerry Davidson, Joanne and Tom Ash, and Lisa Foster.

  Among my friends and colleagues who reviewed the manuscript, I wish to single out Madeline Kochen who educated me, corrected me, and provided unique insights into the interpretative processes of Jewish law, about which she is truly a master.

  It is especially gratifying for me to work with students. Among those who helped me on this project have been Aharon Friedman, Talia Milgrom-Elcott, and Meron Hacohen.

  Thanks also to Jessica Papin for her extraordinary editorial assistance, to Helen Rees for her guidance and support, and to Larry Kirshbaum for his enthusiasm about this project. This book could not have been produced without the help of Maura Kelley, John Orsini, Audrey Lee, and Manny Lim. Thanks also to the librarians at Harvard Law School and at the Harvard Divinity School for their assistance.

  A note of appreciation to Everett Fox for permitting me to use his extraordinary translation of Genesis, which is as true to the ancient rhythms of the Torah as it is to the contemporary eye.

  The responsibility for my misinterpretations, misunderstandings, and other mistakes is entirely my own. I am sure that if I had paid more attention in Hebrew school, I would not have made them.

  PART I

  WHY GENESIS?

  Would you give a young person a book whose heroes cheat, lie, steal, murder—and get away with it? Chances are you have. The book, of course, is Genesis. And you are right to encourage your child to read it—with some guidance. It is the best interactive moral teaching tool ever devised: Genesis forces readers of all ages to struggle with eternal issues of right and wrong.

  There is a fundamental difference between the Five Books of Moses, especially the first book, Genesis, and the New Testament and Koran. The New Testament and the Koran teach justice largely through examples of the perfection of God, Jesus, and Mohammed. Christian or Muslim parents can hand their children the New Testament or the Koran and feel confident they will learn by example how to live a just and noble life. The parables and teachings may require some explanation, 1 but on the whole, the lessons to be derived from the lives of Jesus and Mohammed are fairly obvious. Who can quarrel with the Sermon on the Mount, or with Jesus’ reply to those who would stone the adulteress on the Mount of Olives, or with the parable of the good Samaritan? 2 The same is true with Mohammed. The Koran describes his life as exemplary and Mohammed himself as “of a great moral character.” If you pattern your behavior after Jesus or Mohammed, you will be a just person.

  In sharp contrast, the characters in the Jewish Bible—even its heroes—are all flawed human beings. They are good people who sometimes do very bad things. As Ecclesiastes says: “There is not a righteous person in the whole earth who does only good and never sins.” 3 This tradition of human imperfection begins at the beginning, in Genesis. Even the God of Genesis can be seen as an imperfect God, neither omniscient, omnipotent, nor even always good. He “repents” the creation of man, promises not to flood the world again, and even allows Abraham to lecture Him about injustice. 4 The Jewish Bible teaches about justice largely through examples of injustice and imperfection. 5 Genesis challenges the reader to react, to think for him- or herself, even to disagree. That is why it is an interactive teaching tool, raising profound questions and inviting dialogue with the ages and with the divine.

  What lessons in justice are we to learn from the patriarch Abraham’s attempted murder of both his sons? Or from God’s genocide against Noah’s contemporaries and Lot’s townsfolk? Generations of commentators have addressed these questions, and rightfully so. They need addressing. These stories do not stand on their own. Reading the Old Testament, * and especially the Book of Genesis, must be an active experience. Indeed, the critical reader is compelled to struggle with the text, as Jacob struggled with God’s messenger. A midrash describes how man “toils much in the study of the Torah.” 6 Maimonides believed that Torah study is so demanding that husbands engaged in this exhausting work should be obliged to have sex with their wives only “once a week, because the study of Torah weakens their strength.” For comparative purposes, rich men who don’t work must have sex with their wives “every night,” and ordinary laborers “twice a week.” 7 Whether or not we agree that biblical scholarship should interfere with our sex lives, it is certainly true that we are invited by the ambiguities of the text to question, to become angry, to disagree. Perhaps that is why Jews are so contentious, so argumentative, so “stiff-necked,” to use a biblical term. I love reading the Torah precisely because it requires constant reinterpretation and struggle.

  I first thought about justice when, as a child, I studied the Book of Genesis. To this day, I remember the questions it raised better than the answers given by my rabbis. To read Genesis, even as a ten-year-old, is to question God’s idea of justice. 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 the Knowing of Good and Evil,” if—before eating of that tree—they lacked all knowledge of good and evil? What inquisitive child could simply accept God’s decision to destroy innocent babies, first during the flood and later in the fire and brimstone of Sodom and Gomorrah? How could Abraham be praised for his willingness to sacrifice his son? Why was Jacob rewarded for cheating his older twin out of his birthright and his father’s blessing?

  I first encountered these questions as an elementary-school student in an Orthodox Jewish day school (yeshiva) during the 1940s and 1950s. My teachers, mostly Holocaust survivors from the great rabbinic seminaries of Europe, encouraged the sorts of mind-twisting questions posed by the rabbis over the centuries, without fear of apostasy. These were old questions, asked by generations of believers. Each question had an accepted answer—an answer that strengthened faith in the divine origin of the text and in the goodness of God and His prophets. Sometimes there were multiple answers, occasionally even conflicting ones, but they were all part of the canon. Some of them required a stretch—even a leap of faith. But none, at least none that were acceptable, encouraged doubt about God’s existence or goodness.

  If a skeptical student asked a question outside of the canon, the teacher had a ready response: “If your question were a good one, the rabbis before you, who were so much smarter than you, would have asked it already. If they did not think of it, then it cannot be a good question.” The teachers even had an authoritative source for their pedagogical one-upmanship. The Talmud recounts the story of the great teacher Rabbi Eliezer, who was teaching the following principle:

  If a fledging bird is found within fifty cubits [about seventy-five feet] … [of a man’s property], it belongs to the owner of the property. If it is found outside the limits of fifty cubits, it belongs to the person who finds it.

  Rabbi Jeremiah asked the question: “If one foot of the fledging bird is within the limit of fifty cubits, and one foot is outside it, what is the law?”
<
br />   It was for this question that Rabbi Jeremiah was thrown out of the house of study. 8

  I would occasionally ask impertinent questions that got me tossed out of class. I remember upsetting a teacher by asking where Cain’s wife came from, since Adam and Eve had no daughters. A classmate was slapped for wondering how night and day existed before God created the sun and the moon. My teachers dubbed these questions klutz kashas—the questions of a “klutz,” or ignoramus. But I persisted in asking them, as did many of my classmates. I continue to ask them in this book.

  Following my bar mitzvah, I began to deliver divrei Torah—talks about the weekly Bible reading—at the Young Israel of Boro Park Synagogue, which my family attended. My mother found a copy of one of these talks among some old papers, and it was amazing to discover that even back then I was thinking about some of the issues addressed in this book, arguing that rules without reason are antithetical to liberty and that the first seeds of democracy are planted when lawmakers see the need to justify their commands. 9 The talk my mother found was about the Bible portion called Chukkat, * which deals with a category of laws for which the rabbis could find no basis in reason. They were divine orders to be followed blindly, simply because God issued them. These chukim were distinguished from mishpatim, which were laws based on reason and experience. The word “mishpat” comes from the same root as the words “justice” and “judge” and so mishpatim (the plural of mishpat) were based on principles of justice, whereas chukim needed no justification. 10

  As I will try to show in this book, the unique characteristic of the Bible—as contrasted with earlier legal codes—is that it is a law book explicitly rooted in the narrative of experience. The God of Genesis makes a covenant with humans, thereby obligating Himself to justify what He commands—at least most of the time. The Bible reflects the development of law from unreasoned chok to justified mishpat. Abraham’s argument with God over the fate of Sodom and Gomorrah—the first instance in religious history of a human being challenging God to be just—marks an important watershed in the development of democracy.