The Genesis of Justice (4 page)

Neither ought we be concerned about the logic of others—even if they preceded us—preventing our own individual investigation.
Much to the contrary, just as [our forebears] did not wish to indiscriminately accept the truth from those who preceded them,
and that which they did not choose [to accept] they rejected, so is it fitting for us to do. Only on the basis of gathering
many different opinions will the truth be tested. . . . Do not be dismayed by the names of the great personalities when you
find them in disagreement with your belief; you must investigate and interpret, because for this purpose were you created,
and wisdom was granted you from Above, and this will benefit you. …”
³⁵

While my own ideas certainly owe an enormous debt to those of earlier generations, it is hoped that I can provide some new
insights that derive from my unique experiences as a lawyer and teacher. Employing one’s own experiences to expand knowledge
is, after all, a central message of Genesis, in which the characters make mistakes, challenge, and are challenged by God.

Several of my students and colleagues have wondered why I have chosen to focus on the Book of Genesis, which contains many
stories but few laws, rather than on the “law books” of the Bible. I have chosen to write about Genesis quite deliberately.
I believe that the broad narratives of justice and injustice are more enduring than the often narrow, time-bound, and sometimes
derivative rules of the Bible. Although their influence—especially that of the Ten Commandments and the principle of the talion—has
been enormous, not all have stood the test of time. Some rules are no longer relevant. For example, much of the Book of Leviticus
deals with animal sacrifices. Even the law books, which cover relationships among human beings, contain some proscriptions
that few find binding today. The child who rebels against his father and mother is no longer stoned to death—if he ever was
³⁶
—nor are witches summarily executed. These rules and others like them reflect anachronistic practices that almost certainly
predate the Bible. The biblical narratives, especially in Genesis, are as fresh, as relevant, as provocative, and as difficult
as they were in ancient times. They also provide context and give life to the rules that derive from them. The vignettes,
short stories, and novellas that make up the early biblical narratives have few peers in the history of provocative texts
on the human condition. As long as human beings ask questions about justice and injustice, they will continue to be interpreted
and discussed. Many readers of this book will surely have their own interpretations—midrashim—of the biblical stories. I urge
you to read this book in the questioning, argumentative spirit in which it was written and invite you to continue the dialogue
by e-mailing your own interpretations to
[email protected]
.
^*
I will distribute interesting comments to my students and include you in the dialogue among generations.

1.
See, for example, the parable of the wedding banquet at Matthew 22.

2.
The disciples do not come off as well in several of the Gospels. See generally, Mark’s gospel.

3.
7:20. Traditional commentators point to three biblical exceptions: Benjamin, Amram, and Yishai are without fault.

4.
The Greek gods were also imperfect—as might be expected in a situation in which there are numerous gods, each with limited jurisdiction. More is to be expected of a single god with unlimited jurisdiction.

5.
I offer an explanation for this intriguing fact in
Chapter 11
.

6.
Midrash Rabbah
Vol. 1, p. 68.

7.
See
The Book of Women
(New Haven, Conn.: Yale, 1972), p. 87.

8.
Bava Batra, 23b. Even this story is seen to convey a positive lesson. Professor Moshe Silberg interprets it as a “veiled criticism against [the] tendency to formalism.” Moshe Silberg,
Talmudic Law and the Modern State
(New York: The Burning Bush Press, 1973), pp. 86-90.

9.
Excerpts from my d’var
Torah
on June 16, 1956: “These three words—
chok
(divine decree),
mishpat
(a rule based on justice), and
g’zaira
(a despotic human decree)—have played a major role in the political evolution of many nations. The concept of
g’zaira
has been the basis of the absolute monarchy of the past and the totalitarianism of the present, while
mishpat
has been the essence of democracy and liberty throughout the ages. But
g’zaira
, the despotic decree, could not exist for long without help. The people as far back as the fifteenth century realized that the proclaiming of decrees without apparent reason is the sole privilege of G-d and not of mortal kings, and so in order to rationalize their despotic actions the monarchs utilize the concept of
chok
, the G-dly decree, and so there came to be the divine rights theory of monarchies, which claim that the law of the land was actually the
chok
of the Almighty, but that the king as the direct messenger of G-d could execute his desires without question as
chok
rather than
g’zaira
. As time progressed communism came into focus and sought also to rationalize its totalitarianistic principles by
chok
rather than
g’zaira
, and so they invented their own pseudo-gods, their Lenin or Stalin, who then acting as G-d of the Russian people could execute his own
chukim
so to speak without being questioned concerning them.

In our own United States, however, with the help of G-d, political evolution has always been based on the concept of the
mishpat
, justice, or, as we prefer to call it, democracy. We refuse to recognize any concept of
g’zaira
, and we demand that all law be opened to the checks and balances of
mishpat
. However, in a democracy such as ours all is neither black nor white when viewed under a practical light. There are times when our system seems to be approaching slowly but surely the method of
g’zaira
, and then just as slowly it advances and approaches
mishpat
. In a country such as this, a minority seeking to be heard must exert its greatest influence when the country approaches the period closest to
mishpat
and furthest from
g’zaira
. This period in practical American politics is known as the election year, the year a democracy is most vulnerable. The foreign as well as domestic policies of the administration, which are treated as unquestionable
chok
during the years 1953 to 1955 suddenly become open to as much question and criticism as any other man-made
mishpat
when 1956 rolls around.”

10.
Maimonides, ever the man of reason, rejected this distinction and struggled mightily to come up with reasons—often farfetched—for all the rules. He argued that many of the
chukkim
grew out of God’s efforts to deal with the reality of idol worship and astrology particularly by the Sabians of the time the Torah was given. See Stern, Josef,
Problems and Parables of Law
(Albany SUNY, 1998).

11.
p. 15. Although Ibn Ezra may have intended this statement as something of a put-down to those nonliteralists who allow their imaginations and interpretations to wander too far from the text, I will take his invitation literally, thereby remaining true to Ibn Ezra’s own canon of interpretation.

12.
One rabbinic source put the number at ninety-eight (Riskin at nine, citing the Vilna Gaen). Nahama Leibowitz, a contemporary commentator, goes even further, pointing to a tradition that the facets of the Torah are infinite (
New Studies in Bereshith
19 [Genesis]; [Ehiner, Jerusalem] xxxii). Ibn Ezra concluded, “The end of the matter is, there is no limit to Midrashic interpretation” (Ibn Ezra at p. 17). Ibn Ezra did state, however, “The literal meaning of a verse is never negated by Midrashic interpretations,” at p. 18.

13.
Midrash Rabbah
, Foreword by Rabbi Dr. I. Epstein, vol. 1, p. xi.

14.
Twersky, Isadore,
A Maimonides Reader
(Behtman, 1972), p. 28.

15.
Lamm, Norman,
Faith and Doubt
(New York: Ktav Publishing House, Inc., 1971), pp. 124-25.

16.
Epstein, I. “The Midrash” (Foreword), in Freedman, H.,
Midrash Rabbah
(Soncino: London, 1983), pp. xxi-xxii.

17.
Idem at p. xxii. See also Halivni, David,
Revelation Restored
(New York: Harper & Row, 1987).

18.
In the final editing phases of this book, someone brought to my attention a 1905 book by a Philadelphia lawyer named David Werner Amram, entitled
Leading Cases in the Bible
(Philadelphia: J. H. Grennstone, 1905). He makes the point that

The Bible has been studied almost exclusively by theologians and rarely by lawyers. The fact that lawyers, or men with legal training, have not found the Bible an object worthy of their serious attention has contributed not a little to its misinterpretation and to the misconceptions that have arisen out of it. The long continued misinterpretation of the biblical records in the interest of theological dogma, falsely called religion, or of race prejudice falsely based on the science of comparative sociology, has helped to bring the Bible and biblical study into disrepute. Men of modern times who love freedom in thought and in expression—and among this class lawyers are by training and professional practice easily among the first—have revolted from the influence of dogmatic religion and its superstructure of vanity and vexation of the spirit. With this revolt has come a concomitant loss of all interest in the Bible for its own sake, as a valuable record of history, custom and law. Thus the Bible has suffered for the sins of the churches and of the official expounders of the word of God. The pages of history are overburdened with testimony showing how every villainy practiced by officialdom and hierarchy, every intolerant edict of king or prelate, every special plea for vested rights founded on class privilege, every oppression of the many by the few, has been ably defended by the official mouthpiece of many a church. And even in our own day and time we see so-called ministers of religion encouraging and supporting similar wickedness and like their forerunners appealing to the Bible has become an object of contempt, but to its adherents it has remained an object of veneration. The former class do not read it at all; the latter read it in the light of official exposition, which is quite as bad, if not worse than not reading it at all.

While much of Amram’s approach is an anticlerical polemic, some of his insights on particular stories, especially Job, are interesting. See also Cover, Robert, “Nomos and Narrative,” 97
Harvard Law Review
(November 1983), who takes an entirely different view of the uses of biblical narrative in jurisprudence.

19.
Midrash Rabbah
, vol. 1, p. 60.

20.
See Kellner, Menachem,
Must a Jew Believe Anything?
(London: Littman, 1999).

21.
See Laytner, Anson,
Arguing with God
(Northvale, NJ: Aronson, 1990), pp. 179-96.

22.
Ibn Ezra also cites a verse in Genesis that has Abraham naming a place and the Bible saying “as it is said to this day” (22:14). Rashi interprets the verse as referring to the future. Deuteronomy 3:11 also alludes to future knowledge.

23.
See Richard Elliot Friedman,
Who Wrote the Bible?
(New York: Harper & Row, 1987).

24.
p. 10.

25.
Pope John Paul II,
The Interpretation of the Bible in the Church
(Rome: Libreria Editrice Vaticana, 1993), pp. 71-72.

26.
See Friedman,
Who Wrote the Bible?
p. 247.

27.
See Riskin, Shlomo,
Confessions of a Biblical Commentator
at p. 3. The Jewish scholar Emmanuel Levinas’s deconstruction of talmudic texts helped pave the way for Jacques Derrida and other deconstructionists. As one scholar has written: “Levinas is . . . one of the thinkers who made Derrida and deconstruction possible” (Susan A. Handelman,
Fragments of Redemption
[Bloomington: Indiana University Press, 1991], p. 179). Derrida wrote an entire essay on Emmanuel Levinas, “Violence and Metaphysics: An Essay on the Thought of Emmanuel Levinas,” in
Writing and Difference
, trans. Alan Bass (Chicago: University of Chicago Press, 1978).

28.
After the completion of the Hebrew Scriptures, midrashic creation in Aggadah obtained a dominating position in the spiritual life of Jewry. For a long period it was the vehicle for Jewish ideas, thoughts, feelings, and knowledge. Among the oldest Aggadic midrashim is undoubtedly The Aggadah recited on Passover evening, which according to one authority (Finkelstein, L.,
The Oldest Midrash, The Harvard Theological Review
, 1938, pp. 291 ff.) was compiled between the second half of the third century and the first half of the second century B.C.E.” (Epstein at p. xii).