The Genesis of Justice (24 page)

In addition to foreshadowing a legal defense—necessity—the story of Tamar is also the first biblical account of a criminal
trial. Primitive as it is, Judah’s summoning and sentencing of Tamar is a legal proceeding. To be sure, it is an Alice in
Wonderland trial, with the death sentence preceding the evidence. Eventually, however, Tamar is permitted to present her case
and reverse the judgment. Judah is legislator, prosecutor, judge, jury, and executioner. His word is law, and his law is arbitrary
fiat. Fortunately for Tamar, he is a benevolent despot who is willing to acknowledge the error of his ways. Judah rules neither
because he is righteous nor because the people have selected him, but rather because of his status as the head of his clan.
In a primitive world without formal law, one’s position determines rights. In such a world, guile is needed to overcome the
injustices of status.

Some would say these stories of guile—more than the later tales of conquest and violence—are a metaphor for how Jews managed
to get along throughout most of their history. Physically powerless to fight against discrimination and marginalization, they
sometimes resorted to methods of self-help that relied on wit and artifice. Although they played by the rules established
by their Christian and Muslim hosts, they learned how to use these rules—such as the prohibition against moneylending—to their
advantage. Viewed this way, the narrative of cunning and guile becomes a knife that cuts both ways. On the positive side, they are metaphors
for survival in a hostile world. At the same time, they play into the stereotype of Jew as manipulator and trickster. Shakespeare’s
Shy-lock was surely a manifestation of this negative image, which continues in some places to this day.

In 1990 I became embroiled in a dispute over the nomination of a grossly unqualified political hack for a local judgeship.
My colleague Harvey Silverglate joined me in testifying against the appointment. The then president of the Massachusetts Senate,
who was sponsoring the nomination, was quoted by the
Boston Globe
as having said the following about us:

Bulger contended that Dershowitz and Silverglate are “very manipulative” and “exceedingly crafty” lawyers. … After citing
the Old Testament story of Jacob and Esau, who was tricked into selling his birthright, Bulger called Dershowitz “a true conniver.”
²⁶

Bulger urged his colleagues to “look at their faces,” as if to emphasize our ethnicity. Both the
Globe
and the
Herald
characterized his statements as ethnic stereotyping and soft-core anti-Semitism. This contemporary tale of bigotry demonstrates
how some people still use the Old Testament as a source of anti-Semitic stereotyping.

Be that as it may, the story of Tamar’s deception is also part of a literary tradition, most famously represented by Oedipus,
in which forbidden sex is carried out behind a veil of ignorance. We see this even earlier in Genesis when Abraham and Isaac
pass their wives off as their unmarried sisters.

To illustrate Ecclesiastes’s point that there is nothing new under the sun, consider the following news item from 1996:

NASHVILLE
, Tenn.—The “Fantasy Man” was convicted of rape by fraud Thursday after two women described how he duped his victims into
disrobing and agreeing to blindfolded sex because they thought he was their lover.

Police believe Mitchell, 45, has called hundreds of women over the years. Most hung up on him. But of the 30 women who reported
Fantasy Man encounters to police, eight said they had sex with the caller.

Each encounter began with an early-morning phone call to the sleeping women, prosecutors said. Whispering softly, he persuaded
them he was their boyfriend and asked them to fulfill his fantasy of having sex with a blindfolded woman.

One woman said she had sex with Fantasy Man twice a week over two months in 1992, and only discovered he wasn’t her boyfriend
when her blindfold slipped off.
²⁷

The Tamar narrative also raises the issue of exchanging sex for property. It is not the only such story in Genesis. The bizarre
vignette concerning the “mandrakes” has perplexed commentators over the millennia. Leah and Rachel are both married to Jacob,
but Jacob clearly prefers the company of Rachel, for whom he had worked an additional seven years. Leah had already provided
Jacob with children, but Rachel had not. One of Leah’s children finds some exotic plants—called
dudaim
in Hebrew and translated as “mandrakes”—in the field and brings them to his mother. Rachel covets them because, the commentators
suggest, they were thought to promote conception.
²⁸
Leah was not in a giving mood toward her rival sister, reminding her that she had “taken away my husband.” Rachel offers
to exchange a night of sex with Jacob for the mandrakes, and Leah gleefully accepts. When Jacob comes home from work that
night, expecting to sleep with Rachel, Leah demands that he “come in unto” her, since she has “hired” him in exchange for
the mandrakes.
²⁹
Jacob accedes and impregnates Leah once again. Shortly thereafter Rachel also conceives and gives birth to Joseph. The mandrakes
apparently worked.

The traditional commentators justify both of these sexual exchanges as necessary to fulfill the woman’s imperative of motherhood,
especially when it is their destiny to become the progenitors of God’s chosen people and His chosen leaders. As the sixteenth-century
Italian commentator Obadiah Ben Jacob Sforno put it: “To some [the mandrake] incident may appear immodest. Its purpose is
to indicate that the matriarchs were only motivated by the desire to bear children and produce a people that would serve God.”
³⁰
So too with regard to the Tamar episode. Not only is Tamar’s sexual trickery justified as necessary to fulfill her destiny,
but Judah is also acquitted of paying for sex with a harlot by the following midrash:

He wished to go on, but the Holy One, blessed be He, made the angel who is in charge of desire appear before him, and he said
to him: “Whither goest thou, Judah? Whence then are kings to arise, whence are redeemers to arise?” Thereupon, he turned unto her—in
despite of himself and against his wish.
³¹

(I know some clients who wish they had thought of the “The angel of desire made me do it” defense!) Maimonides makes a somewhat
more plausible defense of Judah:

[H]arlotry was permitted in those times—just as non-kosher foods were not forbidden—before the Torah was given. Even though
the Patriarchs—and presumably their families—observed the Torah before it was given, they did so
voluntarily
, so that it was conceivable that where necessary they would act according to the laws that were obligatory at the time. Consequently,
if the Divine plan required Judah to cohabit with a “harlot,” he would be permitted to do so.
³²

Talk about having it both ways: The patriarchs get credit when they obey the Torah, but no blame when they don’t!

The Genesis stories all take place before the advent of formal rules of law (with the exception of the basic Noachide laws).
The heroes and heroines must make tragic choices, balancing lesser evils against greater evils, without the benefit of legislation.
The story of Tamar—like the stories of Lot’s daughters, Abraham’s and Isaac’s wives, Rachel and Leah’s mandrakes, and others—illustrates
the idea of the necessary evils. There are no perfect options, but in the face of greater harm, a bit of proportional deception
is deemed acceptable. Tamar’s trickery paves the way for the story of Joseph, in which a series of deceptions serve as prelude
to the Exodus and Sinai—and the formal legal codes.

1.
Deuteronomy 25: 5-10.

2.
“The legal obligation of ‘yibum’ … was a widespread practice in the ancient Near East … ” (Alter, p. 218).

3.
Weisman, p. 363.

4.
Rashi, Genesis 35:7.

5.
Robert Alter speculates that Er’s evil may have been nothing more than yet another instance of God’s displeasure at firstborn males: “Though the first born is not necessarily evil, he usually turns out to be obtuse, rash, wild, or otherwise disqualified from carrying on the heritage” (Genesis, p. 218). This is part of God’s pattern of “reversal of primogeniture in all of these stories.”

6.
Alter, p. 218.

7.
Midrash Rabbah
, p. 792.

8.
Ibn Ezra, p. 357.

9.
Kirsch, Jonathan,
The Harlot by the Side of the Road
(New York: Ballantine, 1997), p. 139.

10.
“[S]he evidently remains under his legal jurisdiction, as his issuing of a death sentence against her (v. 24) indicates” (Alter, p. 219).

11.
In listing the progeny of Jacob, Tamar’s twins are attributed to Judah, rather than Er, and Shelah is mentioned only as one of Judah’s five children (Genesis 46:12).

12.
Kirsch, p. 143.

13.
Kirsch, p. 147.

14.
Prior to Sinai, the Levirite duty could, when necessary, be fulfilled by close family members other than a brother-in-law, but not by a married man. See Chasam Sofer,
Commentary on Bereishis
(Art Scroll, 1996), p. 257.

15.
Alter, p. 219.

16.
Alter, p. 220.

17.
Ibid.

18.
The Bible uses different words when first describing what Judah believed the woman to be and when he later describes her to his messenger. The first word—
zonah
—means ordinary prostitute. The second word—
k’deishah
—connotes some kind of a religious prostitute associated with pagan temple worship.

19.
The hasty nature of Judah’s judgment and his severe sentence demonstrates the need for process, which becomes evident in the Joseph story. The Chasam Sofer observes that under non-Jewish law at the time, Tamar could not be executed while pregnant. They would postpone the execution until after the birth (Sofer at p. 258). Mishnah Arachin 1: 4 provides that “if a [pregnant] woman were sentenced to death, they do not wait for her until she shall have given birth, [but] if she were sitting on the birth stool, they must wait for her until she shall have given birth.”

20.
Genesis 38:25 (Rashi).

21.
Alter, p. 221.

22.
The biblical Hebrew is somewhat ambiguous.

23.
At least as long as the child is a male. It is interesting that the biblical begets list the father of Tamar’s children as Judah, rather than Er, who—under Levirite practice—should get the credit (Genesis 46:12).

24.
Childless and sonless married women were also treated badly and would do almost anything to produce a male heir in order to elevate their status. As Rachel said: “Give me children or else I die” (Genesis 30: 2).

25.
Their tricking of Hamor’s clan doesn’t fit into this category because they used it as a prelude to mass murder.

26.
December 6, 1990.

27.
Associated Press, January 19, 1996.

28.
Alter points to the verbal similarity between the word
“dudaim”
and the poetic word for lovemaking,
“dodimi.”
The Song of Songs also makes this association.

29.
Alter sees an association between Leah trading “a plant product” for sex and Jacob trading porridge for a birthright.

30.
Soncino, p. 175.

31.
Midrash Rabbah
, pp. 794-95.

32.
Scherman, Nosson,
The Chumash
(Brooklyn, NY: Mesorah Publications, Ltd, 1993), Stone Ed. p. 211.

[Potiphar’s] wife fixed her eyes upon Yosef [Hebrew for Joseph]

and said:

Lie with me!

But he refused
, …

When he came into the house to do his work
,

and none of the house-people was there in the house—