The Genesis of Justice (2 page)

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?”

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.

These and other stories of justice and injustice had a powerful effect on my young mind. They encouraged me to view the world
in a skeptical and questioning manner. If Abraham could challenge God, surely I could challenge my teachers. When my high
school principal refused me permission to take a statewide exam for a college scholarship on the ground that no one with my
low grades stood a chance of winning, I challenged his action and won both the opportunity to take the test—and the scholarship
itself. The Bible had empowered me to pursue justice. I imagine these Bible stories must have had similar effects on the minds
of other inquiring students, Christian, Muslim, and Jew alike!

I read Genesis as an invitation to question everything, even faith. It taught me that faith is a process rather than a static
mind-set. The Book of Genesis shows that faith must be earned, even by God. Jacob expressly conditions his faith on God complying
with His side of the bargain—of the covenant. As a child, I trivialized this unique relationship between God and His people
by inventing conditions of my own: I would be faithful if God would bring a World Series championship to Brooklyn. I spent
many a faithless day until 1955, when the Dodgers finally beat the Yankees—and promptly moved to Los Angeles. God works in
mysterious ways.

As I grew older I continued to ponder the wonderful stories of Genesis. They leap into my mind whenever I think about contemporary
issues of justice and injustice, as if they are hard-wired into my consciousness. As a law professor, I have always used biblical
narratives in classes as sources of analogy and reference, since most students have some familiarity with Adam, Eve, Cain,
Abel, Abraham, Sarah, Jacob, Moses, David, Job, Jesus, and Mohammed.

In the fall of 1997 I decided to offer a Harvard Law School seminar on the biblical sources of justice. I was flabbergasted
at the amount of interest. Approximately 150 students applied for the 20 places in the seminar. The classes themselves were
exhilarating, as Jews, Christians, Muslims, atheists, and agnostics explored the sacred texts in search of insights about
justice and law. In the spring of 1998 I spent several months in Israel, reading biblical commentaries and discussing them
with a wide assortment of scholars from differing perspectives. In the fall of 1998 I taught the seminar again, focusing on
the narratives of Genesis and Exodus. And in the summers of 1998 and 1999 I led a Bible study group on Martha’s Vineyard in
which we explored the ethical implications of several biblical stories.

My students have included religious fundamentalists who take every word of Scripture literally. “God said it. I believe it.
Case closed,” read a bumper sticker I saw in the law school parking lot. At the other extreme I have taught atheists, agnostics,
and some who have never even opened a Bible in their lives. As one woman told me: “Until now, I’ve thought of the Bible as
a book I see in a hotel room drawer while I’m looking for stationery.”

Some of my students view the Bible as great literature, akin to Shakespeare, Homer, and Dostoyevsky. I regard it differently,
as a holy book in which many people believe and for which some have been willing to die—and kill. Whether or not one believes
the Bible was written or inspired by God and redacted by humans, it cannot, in any view, be read as just another collection
of folktales, short stories, or historical accounts. It is a sacred text, and Scripture must be read differently from secular
literature if it is to be fully appreciated. We read Shakespeare to glory in his mastery of language and to share his remarkable
understanding of the human condition. Yet we do not look to Hamlet or Othello as templates for moral behavior. We identify
with the struggles Shakespeare’s characters undergo, while recognizing that Shylock and Lear are the creations of a brilliant
human mind. The Bible, on the other hand, purports to be the word of God and the moral guide to all behavior. We are supposed
to act on it, not merely ponder its insights. No one was ever burned at the stake for misinterpreting
Macbeth
.

In preparing for my classes on the Bible, and in writing this book, I have tried to reread the biblical texts afresh. For
purposes of the Harvard classes, I am neither Jew nor Christian nor Muslim. I take no position on divine versus human or singular
versus multiple authorship. Each student is encouraged to bring his or her tradition to the reading of the texts. Nor do I
take a position on the “truth” of the various commentators, who are deemed “authoritative” by different religions. We study
many commentators, judging them by their contribution to the discussion and the insights they provide, without regard to their
doctrinal presuppositions.

I found particular inspiration in a statement made by the great medieval commentator Ibn Ezra, a Spanish Jew of the twelfth
century who was familiar with Greek, Christian, and Islamic philosophy and wrote one of the most brilliant and enduring commentaries
on the Bible. Ibn Ezra once said that “anyone with a little bit of intelligence and certainly one who has knowledge of the
Torah can create his own midrashim.”
¹¹
Midrashim, or the singular midrash, are interpretations of the biblical text by the use of illustrative stories, explanations,
commentaries, and other forms of exegesis. There is a traditional saying in Judaism, “There are seventy faces to the Torah,”
which means there is no one correct interpretation of a biblical narrative.
¹²
A contemporary scholar has suggested that many of these faces “were latent; and as generation after generation found expression
for some or other of these aspects, they revealed again and anew the Torah which Moses received on Sinai.”
¹³

It is in this spirit that I join this dialogue among generations. Every generation has the right, indeed the duty, to interpret
the Bible anew in the context of contemporary knowledge and information. Eight centuries ago the most revered of Jewish commentators,
Maimonides, insisted on studying ancient and current writers, both within and outside of his own religion, because he believed
that “one should accept the truth from whatever source it proceeds.”
¹⁴
Maimonides read widely among Greek and Arab writers and was particularly influenced by Aristotle, while fundamentally disagreeing
with his concept of God. Norman Lamm, the president of Yeshiva University, has reiterated this eclectic perspective: “No religious
position is loyally served by refusing to consider annoying theories which may well turn out to be facts. . . . Judaism will
then have to confront them as it has confronted what men have considered the truth throughout generations. . . . [I]f they
are found to be substantially correct, we may not overlook them. We must then use newly discovered truths the better to understand
our Torah—the ‘Torah of truth.’”
¹⁵