The Genesis of Justice (21 page)

Some contemporary commentators go so far as to argue that it is forbidden to criticize any of the great biblical figures.
One must always find virtue in their actions. One talmudic sage actually says that “whoever suggests that David sinned [with
Bathsheba] is mistaken.” Several years ago a fight broke out in Israel’s Knesset, when a Labor minister suggested that David’s
action had been less than pure. Nachmonides rejects this hagiographic approach and declares that “Abraham our father sinned
a great sin unwittingly, that he brought his righteous wife to [the brink of] the stumbling block of sin because of his fear
lest he be killed.” But even those traditional commentators most willing to criticize biblical heroes always find some mitigation.
Rabbi Shlomo Riskin, a contemporary modern Orthodox biblical commentator, places the views of Nachmanides in an acceptable
religious context:

[Nachmanides] may very well have believed that it is only when we can identify with the personalities of the Bible, when we
see them as great human beings but human beings nonetheless, who grapple with—and sometimes even fail in their effort to overcome—the
very same problems and blandishments which assail our every step, that we can truly utilize them as models and learn from
their experiences. …

Indeed, it is difficult to read the pages of the Bible in accordance with the “literal meaning of the text” and not come to
the conclusion that our Torah pictures its heroes and heroines as complex human beings, rising to great spiritual heights
and descending to jealous hatreds, prone to sin, but always with the element of spirituality which enables them to rise above
their weakness and accomplish great things; it is their very struggle which makes them worthy of our veneration and makes
possible their emulation.
⁷

Rabbinic commentators observe that “the greater a person is, the greater is his Yetzer hara” (evil instinct), and his greatness
is shown by overcoming it.
⁸
Psychologist David Rapaport related the following contemporary midrash on this topic from the life of Moses. Before being
afflicted with the plagues, Pharaoh sent his royal painters to create an accurate portrait of his enemy-to-be. He then gave
the portrait to his royal phrenologists so that they could assess his strengths and weaknesses. After examining the portrait,
they concluded that Moses was a weak and vain man, who would easily be intimidated and flattered—that he was no match for
Pharaoh. After Moses proved that he was more than a match, Pharaoh ordered his painters and phrenologists to appear before
him. “Either the portrait was inaccurate or the interpretation was wrong,” he bellowed. When Moses next appeared to demand
the release of the Jews, Pharaoh asked him to determine whether it was the painters or the phrenologists who were wrong and
must die. Moses said both were correct: “I
am
a weak and vain man. Those are my inherent characteristics. But I have struggled mightily to overcome them.”

The concept of the flawless biblical hero who can do no wrong and whose victims deserve their punishment is inconsistent both
with real life and with the Jewish Bible. The Pentateuch, like all great literature, recognized that no human being is perfect.
This recognition is one of the reasons why the Five Books of Moses have been so enduring and influential. Biblical heroes
make mistakes; they succumb to human passions; they violate rules and commandments; often they try to rationalize, deny, or
cover up their sins and crimes. But the Bible does not airbrush the blemishes of its heroes. Like Oliver Cromwell’s portrait
painter, it depicts its subjects “warts and all.” The Jewish Bible is not hagiography, despite efforts by some defense lawyer
commentators to make it such.

Those commentators who assume that the victims of Simeon and Levi’s murderous revenge necessarily deserved what they got send
a terrible message about justice. The message is that right and wrong are a matter of
status
rather than
action
: If the actor is of a certain status—patriarch, son of a patriarch, prophet, king, or other hero—then it follows that his
actions must be justified, regardless of how unjust they may appear to be (this is ever truer of God Himself, who surely can
do no wrong). It is the job of the defense lawyer commentator to figure out
why
—not
whether
—the actions of such elevated beings were justified. The corollary, of course, is that if the hero does something terrible
to a nonhero, the latter must have deserved it.

The status approach to justice has been pervasive throughout history and certainly not limited to Jews or biblical commentary.
“The king can do no wrong” was a principle of common law. Status-bound justice has often been used against “the Jews” or against
individuals of Jewish heritage. Early Christian theology argued that the victimization of Jews—by crusades, inquisitions,
pogroms, or discrimination—was always justified by the dual collective sins of deicide and rejection of Christ. To the Nazis,
everything done by a Jew was bad. Even in modern Poland it is said that if something bad has happened, “there must be a Jew
behind it.”

It is an imperative of justice that culpability be based on a fair assessment of the actions and intentions of individuals,
regardless of their status. Those commentators who can see no evil in the actions of biblical heroes undercut justice. We
must be open to the possibility that the victims of Simeon and Levi’s treacherous massacre were as innocent as the Jewish
victims of collective revenge over the centuries. We should not search for—or manufacture—rationalizations to justify so brutal
a mass murder. Nor should we be satisfied with Jacob’s tactical rebuke of his vengeful sons. If the biblical narrative is
to serve as a teaching tool of justice, we must condemn Simeon and Levi’s mass murder on moral grounds, while perhaps understanding
the passions that led them to impose such disproportionate and collective revenge.

The Bible certainly understands the inherent human passion for vengeance. In one of the most subtle and innovative ideas of
the subsequent law books, God commands Moses to “appoint . . . cities of refuge . . . that the manslayer who killed any person
by accident
may flee into.”
⁹
Murderers were not entitled to such refuge from the “blood avenger,” but accidental killers were entitled to protection until
passions cooled. The Bible thus recognizes that the passion for revenge may be just as great against the accidental killer
as against the premeditated murderer. To the dead victim’s family, there may be very little difference. Their loved one is
dead, and the person who caused his death is guilty and deserves to die. I hear that cry often when I try to argue that a
killer should be found guilty of manslaughter rather than murder. I will never forget a case in which my client, a woman,
shot her husband and was convicted of murder. I argued on appeal that his history of abusing her warranted a reduction to
manslaughter. When I finished my argument, an older woman came over to me and pulled out a picture: “This is my son who I
will never see again because of your client. She should suffer like I must.” I understand why the victim’s relatives are outraged
at my effort to mitigate the crime that robbed them of a loved one. To understand, however, is not necessarily to justify.
The Bible tries to protect the less culpable killer from the understandable passions of the blood avenger by allowing the
killer to seek refuge in a designated place for a specified period of time. If the killer leaves the city of refuge and the
blood avenger “finds him” and slays him, “there shall be no blood-guilt upon him.” The Bible recognizes that an avenger who
kills “while his heart is hot” is not as culpable as one who kills in cold blood.
¹⁰
This insight, which becomes a basic tenet of the subsequent law books of the Bible, derives from the narratives of Genesis,
which feature cold-blooded, hot-blooded, and lukewarm-blooded killings.

The mass murder of the clan of Hamor by Dina’s brothers fits somewhere between hot-blooded revenge and cold-blooded deterrence.
On the one hand, the brothers were understandably outraged by the crime against their maiden sister. On the other hand, what
they did required a carefully planned subterfuge involving one of the most sacred rituals of Judaism—circumcision. (One midrash
goes so far as to suggest that their actions have made it more difficult for potential converts to trust in the good faith
of Jews who require circumcision as a condition of conversion.)
¹¹
Moreover, there are ambiguities in the biblical narrative about precisely what had been done to Dina and what her own wishes
were. Like so many of the women of Genesis, Dina remains entirely silent during the ordeal.

It is not surprising that we never hear from the rape victim herself, since during biblical times—and for centuries thereafter—rape
was considered primarily a crime against the father, husband, or fiancé of the raped woman.
¹²
The Bible provides that “if a man finds a virgin
who is not betrothed
and lays hold of her and lies with her,” his punishment is to pay
the father
fifty shekels and to marry the virgin and never divorce her.
¹³
The reason for this punishment is that the man, by deflowering the woman, has “damaged” the “goods” of the father, thus making
his daughter less valuable as a commodified bride. The rapist must make the father whole by paying him money and relieving
him of the burden of an unmarriageable daughter.
¹⁴
Paradoxically, however, according to the Bible the rapist must be punished because he “humbled”
the woman
. (The Hebrew word for “humbled” is
ena
, which comes from the same root as the word used to describe what Shechem did to Dina:
va yehaneha
.)

Lest there be any doubt who the real victim of rape is in the Bible, compare the punishment for raping an unbetrothed virgin—fifty
shekels and permanent marriage—to that for raping a betrothed virgin: death. The betrothed virgin herself is also put to death
unless she cried out, because if she submitted without protest, she is deemed to have consented, thus offending her betrothed.

Nor did this male-centered attitude toward rape die an easy death. As recently as 1964, the Georgia Supreme Court characterized
rape as a crime against “the most precious attribute of all mankind”—the “purity” of woman, which is “soil[ed] for life” by
rape.
¹⁵
In 1992 an Ohio court quoted a 1707 case describing “adultery [as] the highest invasion of [a husband’s] property.”
¹⁶

It is against this patriarchal background that the ambiguity of the Shechem-Dina encounter must be understood. Some of the
commentators divide the initial blame between Shechem and Dina. As one midrash puts it:

While Jacob and his sons were sitting in the house of learning, occupied with the study of the Torah, Dinah went abroad to
see the dancing and singing women, whom Shechem had hired . . . in order to entice her forth.
¹⁷

Thus in one sentence the Jewish men are presented as scholars, the Gentile man as a manipulative seducer, and the Jewish woman
as an easy mark.

Dina is faulted by some of the rabbis for going “out” of the confines of her father’s tents. One rabbinic sage suggests that
she went out “adorned like a harlot.”
¹⁸
Others argue that if she had “stayed home,” the way women are supposed to, “nothing would have happened to her.”
¹⁹
“But she was a woman,” a mid-rash explains, “and all women like to show themselves in the street.”
²⁰

For whatever reason, Dina did not stay home and something did happen to her. Precisely
what
happened to her is the subject of much dispute among commentators. Most agree that the initial encounter was forced upon
her against her will. Rashi says she was sodomized.
²¹
Ibn Ezra says it was “natural” sex, but she was “afflicted” because she was a virgin. There are even suggestions that she
was a consenting partner but that the brothers still blamed the man for damaging her worth to their father. Whatever the nature
of the initial encounter, the mutuality of the subsequent relationship is even murkier. We know how Shechem felt about Dina:
He loved her and was willing to do anything in order to marry her. We also know he spoke to Dina “comfortingly” and that she
was ensconced in his home. But because Dina never speaks, we can only surmise her feelings toward the man who initially humbled
her, then spoke to her comfortingly and eventually underwent circumcision in order to marry her. The word “comfortingly” is
an interactional adverb, suggesting that Dina was comforted by Shechem’s words, but her reaction is never made explicit. A
particularly disturbing midrash says that “when a woman is intimate with an uncircumcised person, she finds it hard to tear
herself away!”
²²
This early example of penis envy suggests that Dina did want to remain with Shechem, but not necessarily because of his comforting
words alone.

The image of a rapist trying to comfort his victim is a common one today, particularly in the context of acquaintance rape.
Speaking comfortingly can be an effective tactic designed to prevent the victim from calling the cops. We know that batterers
often speak comfortingly to their victims, promising never again to strike them, only to see the cycle continue. It is certainly
possible that Dina was not comforted by what she perceived as a tactic. On the other hand, Shechem’s rape of her may have
reflected his own clan’s primitive courting ritual—a violent and sexist practice all too common throughout history. Perhaps
he had truly come to love Dina and had succeeded in comforting her, despite the initial outrage. We don’t know, because we
never hear Dina’s voice.

It is not clear whether Shim’on and Levi knew—or even cared about—their sister’s attitude toward Shechem. When Shechem took
their sister without the permission of the men who owned her,
their
honor had been offended. Much depends, of course, on these unknowns. If the brothers were rescuing an unconsenting sister
from forced marriage, that would be one thing. If they were kidnapping her from the man she loved and killing that man and
his entire clan in the process, that would be another thing entirely.