The Genesis of Justice (32 page)

If “justice must
be seen
to be done”—as a legal principle pronounces—then both God and man fail in the never-ending quest for justice, because justice
is too rarely seen here on earth. If justice may be achieved in the next world or in the next generation, then we can continue
to have faith in its eventual accomplishment. To turn a phrase, therefore, justice must
not
be seen to be done, else it will rarely be done, because it is so rarely seen. The Book of Proverbs categorically assures
its believers to “be sure of this: the wicked will not go unpunished, but those who are righteous will go free.”
²⁸
But no one with eyes, ears, and mind can be sure of that, since they experience its opposite every day. Either the assurance
is false (as Ecclesiastes concludes); or it is a reference to future generations (as the Ten Commandments suggest); or it
is a promise about the world to come (as Maimonides assures us). There is no other possibility. Nor can the answer ever be
known with certainty. It will always be a matter of faith, not of proof.

It is no accident, therefore, that as the Abrahamic religions move from exclusive reliance on punishment and reward in
this
world to a belief in the
hereafter
, there is a parallel movement away from punishing and rewarding descendants for the sins and good deeds of those who are
personally responsible. Eventually Judaism is able to accept the important principle of individual accountability precisely
because it comes to believe in a world to come in which all scores are personally settled by God. I don’t know whether or
not there is a hereafter—no one does. But I must commend its creator—divine or human—for solving the puzzle of how a just
and intervening God can permit so much injustice in this world.
²⁹

Regardless of how strongly some people may believe in punishment and reward after death, no society has ever been willing
to rely exclusively on this leap of faith to deter earthly misconduct. Every society imposes earthly punishment on criminals,
in addition to the purgatory threatened by religion. (No one, it seems, is willing to take Pascal’s wager to the point of
leaving it to God alone to punish all sin.) Earthly punishments require earthly rules. It is to these rules, and the influence of the Genesis stories on them, that we
now turn.

1.
Webster’s Tenth Collegiate Dictionary
defines theodicy as the “defense of God’s goodness and omnipotence in view of the existence of evil.” A variant on this question is, why are good deeds so often punished and bad ones rewarded?

2.
Aristotle,
Metaphysics
, Book XII, Part 8.

3.
The problem of why good people are punished and bad people rewarded has multiple aspects. There is the problem of theodicy, which asks the question How can God, who is deemed responsible for all good and evil, bestow both with such apparent unfairness? But there is also the human analogy to divine theodicy: Why do human beings in administering justice (broadly defined to include not only legal, but political, social, and economic justice as well) produce so much unfairness? The latter is included in the former, since God is thought to control human as well as natural injustice, but the former is not necessarily included in the latter, since humans do not exert much control over natural disasters.

4.
“The naturalistic fallacy states that it is ‘logically impossible for any set of statements of the kind usually called descriptive to entail a statement of the kind usually called evaluative’ ” (John R. Searle,
Speech Acts: An Essay in the Philosophy of Language
[Cambridge: Cambridge University Press, 1977], p. 132). See generally, Moore, George Edward,
Principia Ethica
(Cambridge: Cambridge University Press, 1960).

5.
See p. 189 supra.

6.
Leviticus 26.

7.
Deuteronomy 28.

8.
See also Deuteronomy 17: 20 (“so that he may prolong his days in his kingdom, he and his children, in the midst of Israel”).

9.
Leviticus 26.

10.
Deuteronomy 28.

11.
Commentators suggest that there are a handful of veiled allusions to the hereafter in the Pentateuch, but they are there only if you are looking very hard for them, and even so, the question persists: Why did God hide them in veiled allusion, rather than make them clear for all to see?

12.
Ginzberg, vol. 2, p. 227.

13.
Maimonides addresses this issue directly, arguing that the earthly rewards and punishments cataloged in the Bible do occur, but they “are not the
final
reward [or] the last penalty” (Twersky at p. 82, emphasis added).

14.
For example, God commands the destruction of the nation of Amalek throughout the generations for the crimes of one generation.

15.
The former may reflect divine justice, while the latter imposes limits on human justice. Rashi distinguishes between minor children and mature children who stand on their own. The halakah also distinguishes the age at which a parent ceases to be responsible for his children’s crimes and sins. According to some commentators, thirteen is the age of responsibility to human courts, whereas twenty is the age for the heavenly court.

16.
It can be argued that the German people—certainly those who lived in West Germany—were collectively rewarded by the Marshall Plan.

17.
See generally, Elon, Menachem, ed.,
The Principles of Jewish Law
. (Jerusalem: Encyclopedia Judaica, 1975).

18.
Rabbi Milton Steinberg has written a moving novel about this episode entitled
As a Driven Leaf
(Northvale, N.J.: J. Aronson, 1987).

19.
Rabbi Akiba elaborated on this view elsewhere: God “grants ease to the wicked and rewards them for the few good deeds which they have performed in this world in order to punish them in the future world.” Similarly, he punishes the righteous in this world for their few wrongs in order to “lavish bliss” upon them in the world to come (
Midrash Rabbah
, vol. 1, p. 257). Pretty clever! That explains all the injustices we see in this world.

20.
Numerous commentators have tried heroically to rationalize David’s invocation of this variant on the naturalist fallacy. Let me offer the following interpretation. David himself witnessed God’s injustice against an innocent child—his own. God kills the offspring of his illicit liaison with Bathsheba, thus demonstrating that the offspring of the unrighteous are punished, despite God’s promise in Deuteronomy that children will not be put to death for the sins of fathers (24:16). Now that David has grown old and has become righteous, he has seen his children rewarded. He is making an observation about his own checkered life. See Psalms 44, 73, 79, and 82 for somewhat different perspectives.

21.
Midrash Rabbah
, vol. 1, p. 216.

22.
Twersky at p. 82.

23.
Larry King Live
, March 22, 1999.

24.
Harold, Schulweis,
For Those Who Can’t Believe
(New York: HarperCollins, 1994), p. 183.

25.
Peretz, I. L., “Bontsha the Silent,” in
A Treasury of Yiddish Stories
, ed. Irving Howe and Eliezer Greenberg (New York: Penguin, 1990), pp. 223-30.

26.
Ginzberg, p. 320.

27.
See Dershowitz,
Just Revenge
. (New York: Warner, 1999).

28.
11: 21; see also 12:17, 26: 27.

29.
Talmudic and Midrashic efforts to impose an afterlife on the stories of Genesis are understandable theologically, but they do an injustice to the power of these stories whose poignancy derives, in significant part, from the injustice of life and the finality of death. To understand Genesis as it was written requires the reader to accept the weltanschauung of its time, rather than to impose, postfacto, a concept—the afterlife—which came to be accepted only in subsequent books.

T
he narratives of injustice that typify the Book of Genesis not only raise the most profound questions about justice in this
world and the next, they also foreshadow many of the specific rules that follow in the Books of Exodus, Leviticus, Numbers,
and Deuteronomy.

When viewed against the background of the narrative of Genesis, the revelation at Sinai is not the dramatic break with the
past that some traditional commentators attribute to it. For Maimonides, prior to Sinai there were no binding laws. But if
the Book of Genesis tells the story of the developing legal system—ad hoc rules, common law, statutes, and so on—then Sinai
does not represent so dramatic a break with the past. It is a culmination of a process begun in the Garden of Eden and continued
with Cain, Noah, Abraham, Jacob, Dina, Tamar, Joseph, and the other actors in the opening narratives of the Bible.

Familiarity with these narratives is a prerequisite to understanding the more formal codes of law revealed at Sinai, since
these laws are a reaction to the anarchy of the narratives. Many of the laws make explicit or implicit references to narratives,
and commentators often tie them together.

To the extent that Sinai does not represent as much of a dramatic break with the past as a culmination of a long process of
development, it reflects not only the history of the law, but its historiography as well. We tend to look back at great moments,
such as the Magna Carta and the American Constitution, as if they were dramatic breaks with the past. Careful study, however,
often discloses that they were actually the inevitable and predictable culminations of developments over time. Because historians
crave landmarks and watersheds, they often exaggerate the significance of dramatic singular events that are the culminations
of a long, gradual process of adumbration. Magna Carta, for example, summarized and codified developments that were already
recognized as part of the common law. Once we had Magna Carta, it became less important to focus on the prior Year Books in
order to extract from them the principles that would come to be codified in the great charter.

This is not to trivialize the dramatic moments historians count as significant. It is to understand that these moments do
not arise out of nothingness. In history there is never a tabula rasa. We always write on a tableau on which much has already
been written, erased, and rewritten—even if the tableau is oral.

Many traditional commentators disagree, arguing that the Ten Commandments and the other rules emerged full-blown from the
revelation at Sinai. The reluctance of some traditional commentators to acknowledge the close association between the early
narratives and the subsequent rules reflects a theological dogma. If the revelation of Sinai is to retain its centrality,
it is essential that the laws revealed at Sinai emerge fully formed from the mountaintop. To see these laws foreshadowed in
earlier stories—even stories about God—is to diminish the drama of Sinai.

Even the most traditional of commentators are forced to trace some of the rules to Genesis. For example, Maimonides, who most
stridently makes the case for the centrality of the revelation at Sinai, must acknowledge that the Jewish prohibition against
eating the sinew of the thigh vein derives from the story of Jacob wrestling with the angel of God and straining the hollow
of his thigh, since the narrative explicitly makes the connection: “Therefore the children of Israel do not eat the sinew
… unto this day, because he touched the hollow of Jacob’s thigh.”
¹
This particular association between narrative and rule is largely symbolic
²
and has little to do with justice. The association between other narratives and rules of justice is far clearer.
³

Virtually all of the substantive and procedural rules that are decreed in the subsequent law books of the Pentateuch flow
from the stories of Genesis. Each of the Ten Commandments can be traced to at least one of the earlier narratives. The more
specific rules—positive and negative, substantive and procedural—often have sources in the stories as well. At the very least,
they have roots in the common problems addressed in both the narratives and the rules.