The Genesis of Justice (28 page)

But there are limits to the limits. Humans can argue with God, but they cannot refuse to obey a direct order from Him. Just
as an ordinary soldier can argue with his commanding officer about a battle plan, he cannot refuse to obey a lawful order.
So in order to test Abraham’s commitment to
this
principle of the covenant, God gives him the most difficult direct order any human being can be given: Sacrifice your beloved
son. Here we see a direct conflict between the rule of law as laid down in a binding legal code and ad hoc orders from the
lawgiver himself as commanded personally by God.

Abraham’s special status as a covenantal partner is a double-edged sword: It gives him special rights in relation to God (he
may argue with Him), but it also imposes extraordinary obligations in relation to God—he may not refuse a direct, individualized
order from God, even if it is in conflict with God’s general rules for the rest of humankind.
¹¹
Kierkegaard points out the paradox that “faith” makes “the single individual … higher than the universal. Abraham represents
faith [and] he acts on the strength of the absurd; for it is precisely the absurd that as a single individual he is higher
than the universal.”
¹²
This is both the benefit and the burden of Abraham’s special status as a “knight of faith.”

The role of status is pervasive throughout the Book of Genesis and is expressly recognizable in the case of Lot, who was spared
on account—at least in part—of his close relationship to Abraham. Eventually status becomes subordinate to actions and intentions,
as it does in the history of the law.
¹³

Viewing Genesis as a book about the development of justice before the existence of a formalized legal system helps to explain
why the narrative is so much about crime, sin, deception, revenge, punishment, and other bad actions. The law evolves from
bad
actions and the way they are dealt with. The common law is built on the
wrongs
, not the
rights
, of humankind. It is an accumulation of stories—narratives—about how human beings deal with each other’s failures. Open any
law book—from the earliest year books of Anglo-Saxon law, to the volumes of Roman law, to the cases debated in the Talmud,
to current Supreme Court decisions—and you will read about
injustice
. The common law of justice is always built on injustice. Just actions do not call for the same degree of response as unjust
actions. Thus the genesis of justice in the injustice of Genesis is not as ironic as it may appear at first blush.

Nor is it so difficult to understand the difference between the Book of Genesis, on the one hand, and the Christian Bible
and Muslim Koran, on the other. The latter two books deal less with the development of law than does Genesis. Accordingly,
they need not focus on the injustice of the primary actors. Law already exists at the time of Jesus. Indeed, in Jesus’ estimation
it is
too
formal. He sees the need for mercy, grace and deformalization of the law.
¹⁴
He can show the way with examples of goodness and righteousness that transcend the rigidity of the law books of the Jewish
Bible.

A similar point can be made about Mohammed, who lived half a millennium after Jesus. Though the Koran deals with law to a
greater extent than the New Testament, it is a somewhat later system, built as it is on the Jewish and Christian Bibles. Mohammed
too can lead by example, without revealing the human weaknesses characteristic of his predecessors in the Book of Genesis.

This interpretation also helps to reconcile the differences between the God of Genesis and the God of the later holy books.
Since God is the ultimate Lawgiver—the manifestation of all law and justice—and since the law is first developing in Genesis,
the God of Genesis is a developing God—a God who, like early legal systems, makes mistakes, acknowledges His mistakes, and
learns by trial and error. The God of the subsequent holy books—the Christian Bible and the Koran—is a more perfect God, just
as His law is a more perfect law and His heroes are more perfect heroes.

The human actors in Genesis are also developing a sense of justice by trial and error. In the garden of Eden, a sense of justice
was neither possible nor necessary. God reigned over the garden as a benevolent despot reigns over his compliant subjects—or
perhaps as a shepherd rules his submissive flock. Since Adam and Eve had not yet tasted the fruit of knowledge of right and
wrong, they had no more need for human justice than they had for shame. Shame is an acknowledgment of wrongdoing, which is
a prerequisite to justice. Once they ate the fruit of knowledge, humans learned good from evil and realized that they had
freedom of choice. Such freedom carries with it the possibility—indeed, the likelihood—that humans will sometimes choose evil.
Without the threat of punishment, it is likely that humans would prefer evil over good, because the immediate gratifications
of evil often outweigh the short-term rewards of goodness. That is why God looked down at the lawless antediluvian world and
saw that “great was humankind’s evildoing on earth and every form of their heart’s planning was only evil all the day.” The
time had come for law and order. In the wake of the flood, God set out the first rule of law: “He who sheds human blood shall have his blood shed by humans.” It is noteworthy that the Bible’s first prohibition against
murder was based on status, rather than a rule of general applicability. “Whoever slays Cain will be punished sevenfold.”
¹⁵
Ironically, the first person to be protected against murder was the first murderer, since he reasonably feared retaliation.

Now that God had announced to Noah a rule of general applicability, human beings still had the freedom to choose between good
and evil, but the choice carried consequences. Put another way, both of God’s initial experiments had failed. His first draft—the
Garden of Eden—was a world without knowledge of good and evil. It was an idyllic world in which humans would live in perfect
submissiveness to the will of God, with no need for justice, shame, or law. Humans, who were created in God’s image, rebelled
against this happy ignorance. They chose instead the examined life of choice between good and evil, and for this they were,
quite appropriately, banished from Eden. Knowledge is incompatible with the idyllic life of Eden.

God’s second experiment was a world of choice, but
without
predictable consequences—without justice. God hoped that humans who knew the difference between good and evil would choose
the former over the latter, without the promise of reward or the threat of punishment. But He soon learned that the instinct
for evil—the
yetzer ha-ra
—is too powerful to allow humans to live by choice alone.

God’s third experiment was a world of choice
with
consequences—with primitive rules whose violation carried severe consequences. God’s covenant with Noah initiated this experiment.
Eventually God would see that the simple covenant He made with Noah, incorporating only the most basic of rules, was insufficient
to govern the complex relationships between God and humans and among humans. He saw the need to establish a more complex covenant
with Abraham and to teach His covenantal partner “to do what is right and just.” This marked the beginning of the common-law
process of Genesis, in which God tests the patriarchs so that they and their descendants may learn how to do justice. Like
any good teacher, He challenges and provokes His student by threatening to “sweep” the innocent along with the guilty. Abraham
responds by arguing that it is better to save the guilty along with the innocent. Abraham’s logic may be flawed, but his instinct
is right on target. Eventually the argument will become more refined, but it is a good beginning!

It is the genius of Genesis that it mirrors so closely the history of civilizations in the days before the development of
formalized legal systems. It shows us a world without law, but not an entirely lawless world. In one sense, Genesis is the
beginning of the common law of justice—a series of ad hoc commands, threats, punishments, rewards, tests, reprisals, blessings,
curses, bargains, promises, deceptions, turnabouts, consequences, and life stories, which, when taken together, form the basis
for many of the rules that became codified in the subsequent books of the Bible. Virtually all of the large jurisprudential
underpinnings of these later rules can be discerned in the Book of Genesis. The themes of justice that permeate the legal
codes of Exodus, Numbers, and Deuteronomy are all suggested in Genesis through the vehicle of narrative, rather than rules.
As we will see in the next chapter, the narratives of Genesis are essential to explaining and justifying the subsequent rules
of law.

1.
I do not intend here to enter into a detailed substantive debate over the issue of natural versus positive law. To the extent natural law serves as a check on positive law, it is unexceptionable. Jewish law provides that positive rabbinical enactments cannot be expected to endure if they defy the deeply felt needs of the community.

2.
Schulweis, Harold M.
For Those Who Can’t Believe
(New York: HarperCollins, 1994), pp. 105-108.

3.
See 134 Cong. Rec. S 15669-01 (10.13.88); 138 Cong. Rec. S 10876-01 (7/10/92); 132 Cong. Rec. H 6679-02 (9/11/86); 136 Cong. Rec. S 5186-01 (4/27/90).

4.
Gomes, Peter J.
The Good Book: Reading the Bible with Heart and Mind
(New York: HarperCollins, 1994), pp. 105-108. Portions of the Bible have also been cited as proof texts on issues as far-ranging as Onanism, abortion, slavery, women’s rights, gun control, and war and peace.

5.
Even the earliest hints of procedural safeguards can be discerned in God’s giving Adam, Eve, and Cain an opportunity to defend their actions—and in telling both Noah and Abraham of His plans for punitive destruction. See Rashi, Genesis 3: 9.

6.
The Harvard philosopher John Rawls has constructed a theoretical “veil of ignorance” to assure that rules of law do not depend on one’s station in life. The veil of ignorance may be defined in the following terms:

[A]ll the “players” in the social game would be placed in a situation which is called the “original position.” Having only a general knowledge about the facts of “life and society,” each player is to make a “rationally prudential choice” concerning the kind of social institution they would enter into contract with. By denying the players any specific information about themselves it forces them to adopt a generalized point of view that bears a strong resemblance to the moral point of view. “Moral conclusions can be reached without abandoning the prudential standpoint and positing a moral outlook merely by pursuing one’s own prudential reasoning under certain procedural bargaining and knowledge constraints” (
http://caae.phil.cmu.edu/CAAE/Home/Forum/meta/background/Rawls.html
). See Rawls, John,
A Theory of Justice
(Cambridge: Belknap Press of the Harvard University Press, 1999).

7.
Matthew 5:17.

8.
See Maimonides’s 13 principles in Twersky, Isadore,
A Maimonides Reader
.

9.
Maimonides, introduction to the Mishnah Torah, pp. 1-16.

10.
But see Job.

11.
Once the Torah was given at Sinai, Jews were instructed to obey its written terms and not to listen to contradictory voices from heaven, from prophets, or even from God Himself. Hence the story of the rabbis arguing about the oven.

12.
Kierkegaard, Soren,
Fear and Trembling
(Princeton, NJ: Princeton University Press, 1945), p. 83.

13.
See Maine, Sir Henry Sumner, “Movement from Status to Contract,”
Ancient Law
(New York: Scribner, 1867), p. 165.

14.
Matthew 5:17-18: “Do not think that I have come to abolish the law or the Prophets; I have not come to abolish them but to fulfill them.”

15.
Genesis 4:15.