The Genesis of Justice (12 page)

To accept the conclusion of the Book of Job that God’s justice is not subject to human understanding is to abdicate all human
judgment about God’s actions and to accept the injustices of our world (as Ecclesiastes seems to do). Anything that God does
is by definition just, even if it is something as awful as the Holocaust. Taken to its logical conclusion, this would mean
that everything that happens is just, leading inexorably to the naturalistic fallacy that confuses what is with what ought
to be. I cannot imagine a possible meaning of “justice” that could include the Holocaust, and it is not surprising that this
inexplicable catastrophe shook the faith of so many erstwhile believers.
¹⁴
In the wake of the Holocaust, it is more difficult to shrug one’s shoulders and sigh that God works in mysterious ways. Nor
can plausible explanations be offered that do not unfairly demean the victims. When an ultra-Orthodox rabbi blamed the Holocaust
on Jews who ate pork, he was roundly and appropriately condemned.

The Holocaust simply cannot be explained away as an example of God’s justice that we, as humans, cannot understand.
¹⁵
Many victims want no part of a God who would regard the Holocaust as just—even in His own terms. Jacob was prepared to cancel
his grandfather’s covenant if God did not deliver him safely to his father’s house; surely a believer who saw his entire family
murdered by the Nazis has the right—indeed, the obligation—to wonder if the God he believed in is a God of justice.

Abraham’s defense of Sodom and Gomorrah teaches us that silence in the face of injustice—even God’s injustice—is a sin. This
view would later be made explicit in the verse “Thou shalt not stand idly by the blood of thy neighbor.”
¹⁶
It takes courage to rail against injustice; it takes great courage to rail against a king’s injustice; it takes the greatest
courage to rail against God’s injustice—especially if you believe in God’s omnipotence. If people are to preserve their faith
in God, they need a God with whom they can argue and remonstrate, as Abraham did in the Sodom narrative—in the strongest of
terms and without pulling any punches.
¹⁷
Maybe that is why the Jews, who have suffered so much, have chosen (or been chosen by) a God with whom they can at least
argue, rather than the more peremptory God who reprimands Job. The God who is sued by Rabbi Levi Yitzchak of Berditchev is
Abraham’s God, not Job’s. The God who endowed kings and emperors with the divine authority never to be wrong is closer to
Job’s God.

Now, back to Abraham’s legal argument with God. The standard translations do not do justice to Abraham’s rebuke of the God
with whom he had just made a covenant. Here is what Abraham says:

Abraham’s powerful language and his use of the term “sweep” would seem as much directed toward the past flood as toward His
intended destruction of the two cities. A midrash worries that some might say that it is God’s “trade to destroy the generations
of men in a cruel manner,” pointing to the flood along with other destructions.
¹⁸
Rashi explicitly refers to the parallel of the flood:

It is interesting that the text of the narrative never explicitly says that God told Abraham that He definitely intended to
destroy the cities. It simply says that the sin of these cities is “exceedingly grievous” and that God was going to “descend
and see” and perhaps destroy (
calah
). Rashi interprets God’s personal visit as a means of teaching that a judge must not give a verdict in a criminal case based
on hearsay evidence. He must see for himself. It is also another hint that the God of Genesis is not necessarily omniscient:
He must actually observe before He can know for sure. God then asks Himself: “Shall I hide from Abraham that which I am doing?”
Abraham quickly figures out what God is up to. He remembers what God did to the sinners of Noah’s generation. So he assumes—correctly,
it turns out—that God is at it again. He’s going to destroy the innocent along with the guilty, just as He did in the flood.
Will He never learn?

Abraham realizes that the only way to get God’s attention is to upbraid Him in the strongest terms. So he uses the Hebrew
term
“chalila Lekha,”
which the translators render as “heaven forbid” or “far be it from you.” But the word
“chalila”
is not nearly so polite. It comes from the Hebrew root for “profane.” It would be profane of you—cursed of you, unkosher
of you
²⁰
—to kill the righteous along with the wicked. (Ironically, Elihu—God’s defender in Job—uses the same word,
“chalilah,”
in rebuking Job: “It is sacrilegious to ascribe injustice to the Almighty” [34:10]. Yet that is precisely what Abraham did—at
least in hypothetical terms.) Remarkably, God agrees with Abraham’s argument, in effect acknowledging the profanity of His
bringing the flood, which did “sweep” away many righteous along with the wicked. He accepts Abraham’s argument and agrees
to save the entire city, provided a certain number of righteous people can be found in it.

There is an obvious logical inconsistency in Abraham’s argument. God could simply destroy the city and save the fifty righteous
people. That would satisfy the premise of Abraham’s rebuke about killing the righteous along with the wicked. But Abraham
asks God to save the entire city—including the vast majority of wicked—for the sake of the fifty righteous. Illogical as it
is, God goes along with this demand. This leads Abraham to engage in a typical lawyer’s argument: Having convinced his adversary
to accept the
principle
, Abraham nudges Him down the slippery slope. He asks God: What if there are only forty-five righteous people, would you destroy
the whole city for the lack of five? Pretty clever. Then he asks the same question of forty, thirty, twenty, and ten.
²¹
This kind of argument is reminiscent of the quip attributed to George Bernard Shaw, who once asked a beautiful actress if
she would sleep with him for a million pounds. When she said that of course she would sleep with him for one million pounds,
Shaw replied, “Now that we’ve established the principle, we can haggle over the price.”

God surely saw the flaw in Abraham’s advocacy. He could have responded, “Look, Abraham. You accuse me of overgeneralizing—of
sweeping along the righteous with the unrighteous. And you have a point. But you’re guilty of the same thing: You are sweeping
the wicked along with the righteous, and giving them a free ride. If I find fifty—or forty or even ten—righteous, I will spare
them
. You’ve convinced me of
that
. But why should I spare the wicked just because there happen to be fifty righteous people in their city?”

Instead God accepted Abraham’s
moral
argument but eventually rejected its
empirical
underpinnings. God did not find a sufficient number of righteous people to spare the city, so He simply spared the handful
of good people He did find, namely Lot’s family—which was in many ways akin to Noah’s family.
²²
They were certainly not perfect, as it turned out,
²³
but they were far better than their contemporaries and townsfolk. The important point is that God permitted Abraham to argue
with Him on moral grounds, and although He eventually went through with the plan to destroy the city, He was persuaded by
Abraham’s moral argument.
²⁴
It was more than a Pyrrhic victory, since it established an enduring principle of justice.

The question remains, if Abraham’s moral argument was illogical, why did God accept it? Permit me to offer the following interpretation,
building on the idea of a God who is teaching as well as learning in His interactions with His human creations.

The text is clear as to why God decided to tell Abraham about His intentions in regard to Sodom and Gommorah: because God
had selected Abraham as His messenger to “instruct” his descendants “to keep the way of the Lord in order to do justice and
righteousness” (
tzdakah umishpat
). In other words, God’s encounter was to be a lesson for Abraham in the ways of
human
justice and righteousness. An omniscient God is, of course, capable of distinguishing the guilty from the innocent (though
He hasn’t always acted on this distinction). Humans, however, cannot simply
discern
who are guilty and who innocent. We need a
process
—a legal
system
—to distinguish the innocent from the guilty. Nor is this a simple task. Inevitably human beings will make mistakes. We will
sometimes convict the innocent and acquit the guilty. That is in the nature of any human fact-finding process.

It is easy to assure that no innocent will ever be convicted, if that is the
sole
object: Simply acquit everyone about whom there is the slightest doubt as to their guilt, no matter how unreasonable. It
is also easy to assure that no guilty person is ever acquitted, if that is the
only
goal: Simply convict everyone against whom there is even the slightest suspicion of guilt, no matter how farfetched. No system
in history has ever managed to convict all of the guilty without also “sweeping along” some innocents. Every rule of evidence
or procedure that makes it easier to acquit the innocent—for example, the “two witnesses” rule of the Bible—also makes it
easier for some guilty people to escape justice.
²⁵
Likewise, every rule that makes it easier to convict the guilty—for example, current reforms that no longer require “corroboration”
of rape accusations—also makes it easier to convict some innocents. The difficult task is to strike the proper balance.

In the end, every system of justice must decide which is worse: convicting some innocents or acquitting some guilty. Tyrannical
regimes always opt for the former: It is far better that many innocents be convicted than that
any
guilty be acquitted. Most just regimes tend to opt for the latter: It is far better that some guilty go free than that innocents
be wrongly convicted. This is the approach ultimately accepted in the Bible, with its generally rigorous safeguards for those
accused of wrongdoing.

In addition to deciding on this basic preference, every system of justice must also quantify—at least implicitly. The Anglo-American
system, for example, has proclaimed that “it is better that ten guilty persons escape than one innocent suffer.”
²⁶
That is surely an approximation, but it sends an important message: Our preference for not convicting the innocent is a very
strong one, but it is not absolute; we acknowledge that in order to convict large numbers of guilty, we will sometimes have
to convict an innocent. We will try our best to prevent such an injustice, but we will not simply acquit everyone in order
to avoid it. This is the way a mature and just system operates.

Although it appears from the language of the narrative that Abraham is teaching God a lesson about justice, it may well be
that it is really God—the great pedagogue—who is teaching Abraham a lesson about the inherent limitations on human justice,
so that Abraham could instruct his descendants to do justice in a mature and balanced fashion—rejecting both extremes of acquitting
everyone about whose guilt there is any doubt and convicting everyone against whom there is any suspicion. By accepting Abraham’s
moral principle—that a sufficient number of innocent people in a group requires the sparing of the entire group, including
the guilty—God was teaching Abraham how to strike the appropriate balance. Since human beings are never capable of distinguishing
precisely between the guilty and the innocent, it would be unjust to destroy a group that might contain as many as fifty innocents.
The same would be true of forty-five, forty, thirty, twenty, and even ten. It would not be true of only one or two. It is
significant that Abraham ends his argument at the number ten. Why did he not continue to try to bargain God down even further?
After all, Abraham knew that there was at least
one
righteous person in Sodom—his own relative Lot. Yet he stopped at ten, thus achieving a moral victory but losing the case.
Why? Some commentators suggest that Abraham
knew
that any number less than ten would not convince God, since Noah and his family num-

bered eight, and they were not enough to spare the entire world from the flood.
²⁷
But God had promised not to repeat the destruction He had wrought on Noah’s contemporaries, so this argument seems to lack
persuasiveness. Others argue that since ten is the requirement for a minyan—a congregation—any less than that number is insufficient.
But the traditional requirement for a minyan is ten
men
, and it cannot be justly argued that righteous women do not count when it comes to saving a community. A more rational and
less sexist variation on this is that without a core number of righteous people, it will not be possible to influence the
multitudes of wicked, as evidenced by Noah’s inability to change his generation of sinners. My own interpretation is simple.
Ten, although an arbitrary number, suggests an approximate balance between convicting the innocent and acquitting the guilty.
Without knowing the number of wicked people in Sodom, it is impossible, of course, to come up with a precise ratio. But the
number ten, even standing alone, is neither trivial nor daunting. Since it is always possible that
any
substantial group of guilty people could include one or two innocents, selecting so low a number would make it impossible
to construct a realistic system for convicting the guilty. But tolerating the conviction of as many as ten innocents would
make any system of convicting the guilty unjust, or at least suspect. When the number of people on Illinois’ death row who
were freed because of their possible innocence recently reached double figures, the public began to express concern. Seemingly,
the execution of one or two possibly innocent people was not sufficient to stimulate reconsideration of the death penalty,
but once the number climbed beyond ten,