The Genesis of Justice (29 page)

I
recall one of my rabbis in yeshiva asking the class a question that seemed ridiculous—a real
klutz kasha!
He asked us, “Why does the Bible begin with the story of creation?” The answer seemed obvious: “Why not begin at the beginning?
Isn’t creation the logical starting point?” The rabbi replied that the Torah was a
law
book, not a
history
book, and law books should begin with the first laws.

The rabbi’s question was not original to him. Rashi, among the most authoritative commentators on Jewish sources, poses it
in his very first commentary on the Bible: What is “the reason” that the Torah “begins with Genesis”? Since the Torah is the
law book of the Jewish people, the logical starting point would be the First Commandment in the Book of Exodus,
¹
rather than the story of creation. Rashi observes that “it was not necessary to begin with the creation” and wonders why
God made that choice.
²
Rashi then provides an entirely unconvincing and somewhat chauvinistic answer to his own question:

It began thus because it wished to convey the message of the verse, “The power of His acts He told to His people, in order
to give them the estate of nations.” So that if the nations of the world will say to Israel, “You are bandits, for you conquered
the lands of the seven nations who inhabited the Land of Canaan,” [Israel] will say to them, “The whole earth belongs to the
Holy One, Blessed is He. He created it and He gave it to them, and by His wish He took it from them and gave it to us.”

This answer is unconvincing for several reasons: First, there are plenty of other stories throughout the Bible that provide
justification for Israel’s right to live in the Holy Land. Second, Rashi’s own question is really broader than why the Jewish
law book
begins
with the narrative of creation. Implicit in that question is the deeper question of why a law book should
include
any stories at all, instead of simply being a compendium of the rules. Why, for example, should it include the long lists
of “begats” or the other stories—from the flood, to the binding of Isaac, to the Jacob and Joseph narratives, to the death
of Moses? Rashi does not answer that question.

Let me propose an answer that addresses both the narrow question of why the Torah begins with creation and also the broader
question of why, if it indeed is a law book, it includes so much narrative, especially in Genesis and the first part of Exodus.

It is precisely because the Torah is a law book that it
should
include stories that illustrate the need for laws and rules. As I will show in the final chapter, the entire book of Genesis
and the first part of Exodus can be viewed as the narrative prelude to the Ten Commandments and the laws that follow the revelation
at Sinai. Even after the laws are given, the narrative continues, the experiences change, and the law continues to develop.

Oliver Wendell Holmes taught us that the life of the law has been experience, not logic. So too the laws of the Bible were
based, at least in part, on the experiences of the people to whom they were given. Without knowing about these experiences,
we find it difficult to understand the law. That is why the narratives of Genesis had to precede the law books of Exodus,
Leviticus, Numbers, and Deuteronomy. (The first part of Exodus continues the narrative of Genesis, culminating in the revelation.
Thereafter the narrative continues, interspersed with laws.) Just as experience must precede law, so too must narrative precede
codification. The genius of the Bible, at least from the perspective of a law teacher, is its integration of narrative and
rules and its use of memory to bring home the moral component of the laws. “Do not oppress the stranger, since you understand
the soul of the stranger, because you were strangers in the land of Egypt”
³
is perhaps the paradigm of such experiential codification. The theme of memory pervades the Bible and its commentaries.

Had the Torah—the great law book—simply begun with a list of rules, the reader would wonder about the basis for the rules.
Some of them appear eminently logical, but the others cannot be understood without reference to the experience of the Jewish
people.

The Bible is the first law book to integrate narrative and law. Previous law codes, such as Hammurabi’s and Lipit-Ishtar’s,
simply presented a compendium of rules, without historical explanation or moral justification. Other early narratives, such
as Homer’s, simply presented the stories, without accompanying rules. The Bible is different. Most of the laws of the Bible
develop organically out of the narratives and are justified by reference to the experiences of its protagonists. There is
a genre of nonjustified laws, called
chukkim
, which are seen as testing faith, but these are the exception. It should not be surprising that the God of the Bible justifies
most of His laws rather than merely declaring them. After all, this is a God who enters into covenants with Noah, Abraham,
Jacob, Moses, and the Jewish people. He is also a God who allows humans to argue with Him and sometimes even to succeed in
persuading Him to change His mind. As we have seen, He is a “constitutional monarch” rather than an autocrat, and His subjects
are entitled to seek reasons for the laws they are told to obey.

Some biblical scholars and historians of ancient law have noted the uniqueness of the Bible in justifying its laws. They note
the prevalence in the Bible of “clauses” that give reasons for the laws, such as the passage cited earlier about treating
strangers fairly because “you were strangers” and “the seventh day is the Sabbath …, for in six days the Lord made heaven and
earth.”
⁴
In the Ten Commandments alone there are several such clauses using the words “because” (
ki
), “that” (
lema’an
), “lest” (
pen
), or “therefore” (
al ken
). Deuteronomy contains more than one hundred “motive clauses,” as these forms of justificatory language are called. Professor
David Weiss Halivni, a leading contemporary Jewish scholar, explained that the prevalence of motive clauses demonstrates that
“biblical law is not categorically imperative, that it [generally] seeks to justify itself.” He cites research contrasting
these motive clauses of the Bible with other law books of the ancient Near East and concludes:

The motive clause is clearly and definitely a peculiarity of Israel’s or Old Testament law.
⁵

Professor Halivni argues that this need to justify law grows out of the character of the Jewish people. He writes about the
natural reluctance of the “Jewish imagination” to “accept categorical law”
⁶
and claims that “Jews cannot live by apodictic [absolute, declaratory] laws alone,” since “making laws categorical leads
to autocracy,” which Jews “instinctively reject.”
⁷
This emphasis on the natural and instinctive traits of Jews strikes me as a bit of a genetic and historical overgeneralization,
but it is difficult to quarrel with Halivni’s observation that the biblical approach “expresses a basic trait of Jewish law,
which tends to be justificatory (one could say ‘democratic’) to explain rather than to impose, as opposed to the autocratic
attitude of the ancient Near East.”
⁸

Throughout history Jewish law has been characterized by its argumentative quality: The Talmud preserves dissenting views for
posterity;
⁹
the midrash has people arguing with angels, angels arguing with God, and everybody arguing with each other; the
pilpul
—a talmudic variation on the Socratic method—knows no perfect answer. No wonder the Bible describes the Jews as a “stiff-necked”
people. But there are countertrends as well throughout Jewish history, when Jews sought authoritarian rule from charismatic
rabbis and military leaders. As might be expected, Jews have argued about these trends as well.
¹⁰

Whether it was the biblical method of justifying laws by reference to the narrative that caused Jews to become argumentative,
or whether it was the argumentative nature of the Jewish people that caused the Bible to integrate the narrative into the
laws, the end result has been the same: We have a Bible that is unique in its justification of the laws, and we have a people
who are unusual in their reluctance to accept laws without reason. These are the seeds of democracy.
¹¹

What distinguishes the Torah is precisely that it is a book of rules based on remembered experiences! That is why the Torah
begins with wonderful stories—stories about fallible human struggles with jealousy, temptation, vengeance, lust, selfishness,
and other vices in the absence of a formal legal system.

These open-textured narratives are susceptible to ever-changing interpretations. They invite dialogue and intellectual freedom.
Again, like the open-textured phrases of the United States Constitution—due process, equal protection, cruel and unusual punishment,
full faith and credit, and freedom of speech—the narratives of Genesis are designed to endure through the ages. The seventy
faces of the Torah can never be reduced to a single religiously correct view. Yet throughout history it has not been the devil
alone who has cited these stories in support of his ignoble ends. Virtually everyone—angels and mortals alike—have quoted the
Scriptures. Throughout history politicians, church leaders, and others have pointed to particular biblical stories as proof
texts for their agendas. Lenin quoted Exodus, as did the Puritans and African American slaves. None of them is demonstrably
wrong.
¹²
None is exclusively right. The narratives of the Bible are not blueprints for liberalism, as some argue, or for conservatism,
as others allege.
¹³
They provoke, challenge, and confront every orthodoxy: political, religious, social, economic, and legal. Simple as they
appear, they raise the most profound issues of philosophy, theology, and jurisprudence. A good educator trapped with a group
of students on a desert island with nothing but the Book of Genesis could teach wonderful courses on many subjects. In the
next chapter we will focus on one of the transcendental questions raised by the Genesis narrative.

1.
The first few commandments appear in the Book of Genesis (do not kill, be fruitful and multiply, circumcise males), but they are not deemed as authoritative as those that follow the revelation at Sinai. See Maimonides generally.

2.
This question was first raised by a popular midrashic homily. For references to its original source, see Halivni, David Weiss,
Midrash, Mishnah and Gemara
(Cambridge, Mass.: Harvard University Press, 1986), pp. 9, 120.

3.
Exodus 23: 9.

4.
Exodus 20: 7.

5.
Halivni, p. 13. In addition to the
specific
motive clauses, there are also
general
ones, such as the observation that man is made in the image or spirit of God and that Israel is a holy nation.

6.
Ibid., p. 92.

7.
Ibid., pp. 68, 91.

8.
Ibid., p. 14.

9.
In order “to provide the possibility for a future court to reopen the case” and to make sure that those who disagree with the majority realize that both views were considered (Halivni, p. 110).

10.
Maimonides strongly believed in legal codification. In espousing this view, he was following the Mishnah, which was an early attempt at codification and which generally sought to state the law without long discursive justifications. Critics of this approach called its practitioners “destroyers of the world,” who “deprive students of the proper mode of studying Torah,” which is to “have the laws attached to the Bible (by way of Midrash) rather than to circulate them separately, as does the Mishnah” (Halivni, p. 62).

11.
A legal system that sees the need to justify itself by reference to the experience of the people “signifies that it reckons with the will of the people to whom the laws are directed; it seeks their approval, solicits their consent, thereby manifesting that it is not indifferent to man” (Halivni, p. 14). This contrasts sharply with other ancient codes that reflect “no concern for the will of the people to whom the laws are directed. The laws are to be obeyed; they need not be understood. Motives are not necessary. The law’s authority is derived from the need to have law and order, and it is the king and his entourage who decide what law and order are; the people are not privy to that decision” (ibid.).

The uniqueness of the Bible lies in its invitation to “the receiver of the law to join in grasping the beneficent effect of the law, thereby bestowing dignity upon him and giving him a sense that he is a partner in the law” (Halivni, p. 14). Without recounting the experiences that gave rise to the rules, the Jewish book of laws would be like any other legal compendium.