The Genesis of Justice (13 page)

even many death penalty advocates began to question whether the system was working fairly. The Anglo-American ratio—better
ten guilty go free than even one innocent be wrongly convicted—is also somewhat arbitrary, but it too uses the number ten
in attempting to strike the proper balance.

What we see, perhaps, is an extraordinary example of interactive teaching and learning. God is willing to accept Abraham’s
rebuke—illogical as it may seem—in order to teach Abraham that he, a mere mortal, will need to construct a just and effective
system for distinguishing between the innocent and the guilty. In the process God too may have learned that He has been insufficiently
sensitive to the plight of the innocent who are swept along with the guilty.

The story of Abraham’s argument with God has been particularly salient to me as a criminal defense lawyer.
²⁸
I know that most of my clients are guilty of the crimes with which they are charged. I know this not because they tell me—very
few confess to their lawyers (only one has ever confessed to me). I know it as a statistical matter, since the vast majority
of people charged with crime in America, and in other democratic countries, are guilty. Thank goodness for that! Imagine living
in a country where the majority of people charged with crime were innocent. That might be the case in Iraq, Iran, or China,
but certainly not in any country with a relatively fair and nonrepressive legal system. So I can safely assume that my clients
are no different from the statistical norm—a majority of them are guilty. If anything, my appellate clients are
more
likely to be guilty than those of a typical trial lawyer, since my clients have already passed through the most significant
check on prosecutorial error or abuse—the trial. They have already been found guilty by a jury. Some of my clients have been
innocent, but they were almost certainly in the minority.

When I decide to take a case, I rarely know whether any particular client is among the guilty majority, the innocent minority,
or somewhere in between. Were I to take the position—urged on me by many, including my mother—that I should represent only
the innocent, I would probably have taken fewer than a handful of cases over my thirty-five-year career. It is extremely rare
that I know for certain that a prospective client is innocent. I have my suspicions (which sometimes have turned out to be
mistaken—both ways). I can never, however, be certain. This is even more true at the beginning of my representation, when
I know relatively little about the case. As time passes and I learn more, I often reach a more informed view. Even if I come
to believe that my client is guilty, I cannot leave a case once I have undertaken the responsibility for completing it (unless
the client violates certain rules), any more than a surgeon could abandon a half-completed operation upon learning that his
patient was sicker than originally assumed, or a priest could walk out of a confession upon being told of sins he did not
anticipate.

I represent the probably guilty for several important reasons of principle. The first is that I, like all human beings, cannot
always distinguish between the guilty and the innocent. If only those who were obviously innocent could get decent lawyers
to represent them, many innocent clients would remain unrepresented by competent lawyers. I represent the probably guilty,
therefore, in order to prevent injustice to the possibly innocent. This is in the tradition of the Sodom narrative, at least
as I interpret it. I represent the probably guilty for the sake of the possibly innocent.

Second, I represent the probably guilty to assure that the government is always challenged, that it never gets sloppy, lazy,
or corrupt. If our legal system were ever permitted to act on the statistical assumption that the vast majority of defendants
are guilty, then prosecutors would grow less careful about whom they charged with crime, and the statistics might become reversed,
as it has in some autocratic regimes. Abraham understood how important it was to challenge authority, even divine authority.
Although God was eventually able to carry out His plan against the sinners of Sodom, Abraham made it tougher for God. In the
end many of my clients go to prison—thankfully none have ever been executed—but I try hard to challenge the government at
every turn. In doing so, I’m following in the tradition of advocacy originated by Abraham.

Third, I am a teacher, and I must teach by example. I cannot tell my students that
they
should represent defendants who may be guilty, but that
I
am too good for such dirty work. If our legal system requires that all defendants be represented by zealous lawyers, then
I must be willing to serve in that role, no matter how personally unpleasant it may sometimes be. Abraham too was a teacher,
and he has taught generations of human rights advocates never to remain silent in the face of a perceived injustice—even if
it means standing up for the guilty.

It is always distressing when the guilty go free. But it is a price we must be willing to pay for assuring that the innocent
are only rarely convicted. The occasional acquittal of the guilty to preserve the rights of all is a difficult concept that
continues to confound and engender controversy, but it lies at the core of any civilized concept of justice. In the Sodom
narrative, we see God as a great teacher and Abraham as a challenging student. Both learn from the exchange: God learns that
might alone does not make right, and that it is unjust to sweep the innocent along with the guilty. Abraham learns that right
alone cannot save the wicked, and that perfect justice is too much to expect of any legal system. Both learn that the essence
of justice is striking the right balance. Soon thereafter God gives Abraham a test of justice that teacher and student both
appear to fail. But before we get to the
akaida
—God’s command to Abraham that he sacrifice his son—let us consider what God ultimately did to the sinners of Sodom and what
happened to the one righteous family. It turns out that even the most innocent among the citizens of Sodom were not so righteous
after all. They remind me of some of my innocent clients.

1.
Laytner at p. 46, quoting Leviticus Rabbah and Genesis Rabbah.

2.
Fromm, Eric, quoted in Laytner at p. xvii.

3.
Abraham also questions whether God will satisfy His part of the deal. Genesis 15:8.

4.
Genesis 28:20-21.

5.
Laytner, Anson,
Arguing with God, A Jewish Tradition
(New Jersey: Aronson, 1900), pp. xiii-xiv.

6.
Sanhedrin 10:5.

7.
Laytner at p. 184.

8.
Safire, William.
The First Dissident: The Book of Job in Today’s Politics
, 1st ed. (New York: Random House, 1992).

9.
Book of Isaiah 1:18.

10.
Job 34:10.

11.
Job 34:17.

12.
Job 36:23.

13.
Technically, Abraham did not tell God He
had
acted unjustly, but rather that He
would
act unjustly if He swept away the innocent with the guilty. This suggests that it is more appropriate to be critical in order to
prevent
a future injustice than to criticize a past one. But the distinction based on tense is a bit reminiscent of President Clinton’s famous distinction based on what “the meaning of ‘is’ is.”

14.
The Job story, as well as the Holocaust, raises the general issue of theodicy, which has been popularized by the book
When Bad Things Happen to Good People
by Rabbi Harold S. Kushner, who lost a son to illness. Theologians, philosophers, and victims have struggled with this issue since the beginning of time. See
Chapter 13
.

15.
There are, of course, important differences among the flood story, the Sodom story, the
akeida
story, the Job story, and the Holocaust. God himself brought the flood; no one else is responsible (though some commentators fault Noah for not arguing on behalf of the innocent, as Abraham did). God also destroyed Sodom, but only after a “trial” and eyewitness observation. God told Abraham to sacrifice his son, thus requiring active complicity by Abraham. God authorized Satan to kill Job’s children and expected Job to accept this injustice. The Nazis perpetrated the Holocaust, as God stood idly by. Of course, for those who believe that God is responsible for everything, there are no differences. Some try to have it both ways by arguing that God get credit for all good things but no blame for bad things. A variation on this reductionistic theme is that God does no bad things, only good things that mere humans do not comprehend.

16.
Leviticus 19:16.

17.
See Wiesel, Elie, “A Prayer for the Days of Awe,”
New York Times
, Oct. 2, 1997, p. A19.

18.
Ginzberg at p. 251.

19.
Soncino Bible, p. 91.

20.
One translation uses the phrase “it would be sacrilege” (Sapperstein edition).

21.
Commentators speculate on why the number 45 is included among the others, which are all multiples of 10.

22.
God does not seem to count babies and children among the innocent or righteous, and the commentators are generally silent about this problem.

23.
Both engaged in questionable sexual behavior after being singled out for rescue by God.

24.
Some commentators argue that God knew all along that there were fewer than ten righteous people and simply allowed Abraham to make his futile argument. But the text supports the view that God did not know the extent of the evil and had to go down and find out for Himself.

25.
The Talmud recognizes this by prescribing, “If one murdered a human being and there were no witnesses, they put him in a prison cell and feed him sparing bread and scant water.” Mishnah Sandhedrin 9:5. Commentators suggest that this shrinks the abdomen, and he is then fed barley “to cause rupture of the stomach.” This would completely undercut the command of the Torah that in the absence of two witnesses “he shall not be put to death” (Deuteronomy 17:6).

26.
Sir William Blackstone in Bartlett, John,
Familiar Quotations
(Boston: Little, Brown and Company, 1955). p. 325.

27.
Various commentators try to explain why nine would also not be strong enough.

28.
I was shocked to find almost no discussion of Abraham’s argument in the Midrash Rabbah. Even Ginzberg in his
Legends of the Jews
has only a brief elaboration (pp. 250-53).

[T]he men of the city, the men of Sedom, encircled the house
,

from young lad to old man, all the people [even] from the outskirts
.

They called out to Lot and said to him:

Where are the men who came to you tonight?

Bring them out to us, we want to know them!

Lot went out to them, to the entrance, shutting the door behind him
,

and said:

Pray, brothers, do not be so wicked!

Now pray, I have two daughters who have never known a man
,

pray let me bring them out to you, and you may deal with them however seems good in your eyes;

only to these men do nothing
,

for they have after all, come under the shadow of my roof-beam!

The messengers pushed Lot on, saying:

Up, take your wife and your two daughters who are here
,

lest you be swept away in the iniquity of the city!

When he lingered
,

the men seized his hand, his wife’s hand, and the hand of his two daughters

—because YHWH’s pity was upon him—

and, bringing him out, they left him outside the city
.

It was, when they had brought him outside, that [one of them] said: