The Genesis of Justice (3 page)

It is in the nature of midrashic interpretation that it “keeps its gates open. It never closes a debate.”
¹⁶
Nor does it exclude any from participation in this never-ending discussion of the Bible. The “quest” (
drash
) continues, “untamed” and “unabated” in its spirit of free inquiry.
¹⁷
One of my uncles, who is a rabbi and a professor in Israel, has traced our family name and believes that it derives from
the Hebrew word
“doresh”
or “
drash,”
which means “to seek interpretations,” particularly of the Bible. Our family apparently has a long history of being
darshanim
, people who interpret sacred texts. There is no way, of course, to be certain of this derivation, but I would be proud to
be part of such a tradition. The generations of my family whom I have known certainly lend support to my uncle’s theory, though
not all my relatives would agree with the questioning tone and content of this book.

Unlike others who have written about the Bible, I do not bring to the project a lifetime of biblical study. Instead I bring
a lifetime of legal studies and practice coupled with a solid grounding in the Bible. In my forty years as a lawyer, I have
thought constantly about the Bible and how it has impacted on the law. My teaching and practice have been informed by biblical
as well as secular sources. Now it is time for me to write about this fascinating relationship, which has played such an important
part in my own personal and professional life.
¹⁸

I try to use my legal, political, and personal experiences to raise new questions about ancient sources and to provide new
insights into old questions. I make no claim of being “right.” Nor do I claim any religious or other authority. My goal is
simply to stimulate discussion among believers, nonbelievers, skeptics, and others who share my fascination with the enduring
influence of this book called the Bible.

Most people who write about the Bible have an agenda, sometimes overt, more often hidden. They seek to prove or disprove the
divine origin of the Bible, the superiority or inferiority of one particular religious approach to the text, or some point
about the history of the Scriptures. In reading many of the traditional commentaries, I have observed that they fall into
several categories.

First, there are the “defense lawyers.” Like any good lawyer defending a client, they rarely ask a question unless they already
know the answer. In this case, the answer must prove the goodness of God, the consistency of the text, and the divine origin
of the Bible. These defense lawyers search for “proof texts” that will corroborate what they already know to be true. As one
midrash confidently assures its readers: “Whenever you find a point [apparently] supporting the heretics, you find the refutation
at its side.”
¹⁹
The most prominent among the defense lawyer commentators is Rashi, a brilliant and tireless eleventh-century French Jew whose
full name was Rabbi Solomon ben Isaac. Rashi, who lived through the Crusades, wrote exhaustive commentaries on the Bible and
the Talmud, generally limiting himself to narrow textual interpretation and reconciliation rather than broad philosophical
or theological elaborations.

Next, there are the “Socratic” commentators, who seem prepared to ask the difficult questions and acknowledge that they do
not always have the perfect answers. These commentators are willing to leave some matters unresolved and to express occasional
doubt, because the correct interpretation may be inaccessible to their generation or hidden in coded language. Ultimately,
even the most open-minded of these commentators is not prepared to make the leap of doubt or faithlessness, though they demand
that others make a comparable leap of faith. The most prominent of the Socratic commentators is Maimonides, who studied Greek
philosophy and who believed that scientific knowledge was consistent with biblical truth. His writings endure not only as
biblical interpretation but also as stand-alone philosophical works.

Then there are the subtle skeptics. Although they proclaim complete faith, any discerning reader can sense some doubt—doubt
about God’s justice, doubt about God’s compliance with His covenant, even occasional doubt about God’s very existence. These
commentators employ veiled allusion, hypothetical stories, and mock trials to challenge God and to wonder why His people have
suffered so much. It is no sin, according to these skeptics, to
feel
doubt. After all, human beings are endowed with the capacity, if not the need, to doubt. The sin is to
act
on these doubts. Judaism is a religion in which theological purity is not as important as observance of the commandments.
When God gave the Jews the Torah, the people said they would “do and listen” (
na’aseh v’nishmah
). This response—placing “doing” before “listening”—has been interpreted to justify theoretical skepticism as long as it is
accompanied by devout behavior.
²⁰
Among the prominent skeptics is Rabbi Levi Yitzchak of Berditchev, an eighteenth-century Hasidic master who actually filed
a religious lawsuit (a
din Torah
) against God for breaking His covenant with the Jewish people.
²¹

Throughout most of history it has been assumed that the Jewish Bible was written or inspired by God and that it was given
to the Jewish people at Sinai as a single document. During the Middle Ages some traditional commentators wondered about textual
inconsistencies that suggested multiple authors or later additions. Moses describes his own death. Places and peoples are
mentioned that did not come into existence until well after the Torah was supposed to have been given at Sinai. For example,
in a passage describing Abraham’s journey, the Bible states, “The Canaanite was then in the land.”
^*
Ibn Ezra wonders about the historical accuracy of that statement, offers a possible interpretation, and then hedges his bet:
“Should this interpretation be incorrect, then there is a secret meaning to the text.” He cautions, “Let one who understands
it remain silent.”
²²
A commentator on Ibn Ezra suggests a reason for the rather cryptic warning: Ibn Ezra realizes the clause about the Canaanites
is an anachronism but is loath to engender doubt among his readers. The solution: silence! Many biblical scholars now acknowledge
that the Book of Deuteronomy appears to have been written later than the other four books and that the different styles within
the first books suggest multiple authorship, subsequent editing, and redaction.

The question of who wrote the Bible has been hotly debated by academics for more than a century. Though I am familiar with
this literature and have used it in my classes,
this
book is not part of
that
debate.
²³
Instead
The Genesis of Justice
speaks not to the who but to the how: How are we to understand the stories of apparent injustice that are supposed to teach
us about justice? In order to join that millennia-old debate, I have chosen to accept the assumptions of its historic participants
about the divine nature of the text. For purposes of this book, it does not matter whether Genesis was dictated to Moses by
God or compiled by an editor from multiple sources. What
does
matter is that it has been considered a sacred text for more than two millennia. This does not, of course, require a literal
fundamentalist approach. As Ibn Ezra put it: “[I]f there appears something in the Torah that is intellectually impossible
to accept or contrary to the evidence of our senses, then we must search for a hidden meaning. This is so because intelligence
is the basis of the Torah. The Torah was not given to ignoramuses.”
²⁴

Pope John Paul II has made a similar point:

Fundamentalism also places undue stress upon the inerrancy of certain details in the biblical texts, especially in what concerns
historical events or supposedly scientific truth. It often historicizes material which from the start never claimed to be
historical. It considers historical everything that is reported or recounted with verbs in the past tense, failing to take
the necessary account of the possibility of symbolic or figurative meaning….

Fundamentalism likewise tends to adopt very narrow points of view. It accepts the literal reality of an ancient, out-of-date
cosmology, simply because it is found expressed in the Bible; this blocks any dialogue with a broader way of seeing the relationship
between culture and faith. Its relying upon a non-critical reading of certain texts of the Bible serves to reinforce political
ideas and social attitudes that are marked by prejudices—racism, for example—quite contrary to the Christian gospel.
²⁵

I am reminded of a Jewish story about the two great rabbis, both experts on Maimonides, who die and go to heaven, where they
continue to argue about an inconsistency between one Maimonidian text and another. Each rabbi proposes brilliant arguments
and counterarguments, seeking to reconcile the apparent conflict. God, observing their marvelous debate, brings in Maimonides
himself to resolve the conflict. Maimonides looks at the conflicting texts, smiles, and declares that one of them is a simple
transcription error. There is no actual inconsistency! The rabbis dismiss Maimonides, complaining that
his
solution is far less interesting than their own.

It is in the argumentative tradition of these rabbis that I approach the text of Genesis. I am certain that some of the conflicts
within the text of Genesis—for example, Abraham’s willingness to argue with God on behalf of the mostly guilty Sodomites as
contrasted with his unwillingness to argue with God on behalf of his own entirely innocent son—could be resolved by pointing
to evidence that one of these texts was written by the “J author,” while the other was written by the “E author.”
²⁶
That is a less interesting answer, however, than some of those provided by the traditional commentators. Because I want to
engage the commentators and the text on the terms accepted by their readers over the millennia, I have not written a book
about
who
wrote the Bible, but rather about
how
we should understand its often conflicting messages about justice.

The open-textured, often ambiguous nature of the Jewish Bible has fostered a rich oral tradition and thousands of commentaries
on the biblical text. Within the Jewish tradition there are different kinds of biblical commentary:
pshat
, literal translation;
drash
, rabbinic explication;
remez
, symbolic interpretation; and
sod
, secret or mystical meaning. Jews love acronyms, and the acronym for these different kinds of biblical commentary is
pardes (pshat, remez, drash
, and
sod)
, which means “orchard.” The orchard of interpretation is supposed to contain the many faces of the Torah.
²⁷
Perhaps the most popular form of biblical commentary has been the midrashic Aggadah, which are stories, sometimes farfetched,
elaborating on the biblical narrative and going beyond more text-centered
drash
. I will provide examples of such stories throughout this book.
²⁸
One commentator went so far as to elevate the Aggadic stories to the status of Holy Writ: “If thou wishest to know Him, …
learn Aggadah.”
²⁹

To complicate matters even further, some contemporary commentators—most notably Abraham Joshua Heschel—argue that the Bible
itself is midrash. Heschel regards the central event of biblical theology—the revelation at Sinai—as a midrash about how the
law was given to the people of Israel. To take the narrative literally and believe that God actually spoke and handed over
tablets is, Heschel argues, to confuse metaphor with fact. According to this view, there is
only
midrash, followed by midrash upon midrash. The stories of the Bible translate God’s unknowable actions into familiar human
terms that a reader can understand.
³⁰
Maimonides also viewed some of the words of the Bible as “metaphorical,” using “the language of man” and “adapted to the
mental capacity of the majority of mankind. … ”
³¹
Focusing on phrases such as “the hand of God” and His “glittering sword,” Maimonides explains that these words are directed
at people who have “a clear perception of physical bodies only.”

The New Testament and the Koran were also subject to midrashic elaboration. Jesus excelled in the use of the midrashic technique,
and the Gospels have been characterized as a “masterpiece of the Aggadah.”
³²
Mohammed also used the midrash for the legendary material he incorporated into the Koran.

In this book I will focus primarily on the text of Genesis. When relevant, I will make references to various commentators
and midrashim. I do not feel bound by any particular interpretation, nor do I regard any as authoritative or dispositive.
Once a text is published, it belongs to us all and we may interpret it according to our own lights. The marketplace of ideas
is the sole judge of the validity or usefulness of a given interpretation. Tradition certainly has “a vote but not a veto.”
³³
I surely reject the anti-intellectual approach of those contemporary Haredi (fervently Orthodox) rabbis who argue that “the
mind of a man in our generation” is “forbidden” to contain “ideas and thoughts which he devises from his own mind, which were
not handed down from earlier generations.”
³⁴
I have fought against this sort of anti-intellectual fundamentalism since I was a child studying in the yeshiva, and I continue
to reject it as an adult teaching at Harvard. I am inspired far more by the approach suggested by the great sixteenth-century
Bible commentator Rabbi Eliezer Ashkenazi, who insisted that “each and every one of us, our children and grandchildren until
the conclusion of all generations,” is “duty bound to examine the secrets of the Torah” by “accepting the truth from whoever
says it”: