The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law

Why Genesis?

Would you give a young person a book whose heroes cheat, lie, steal, murder—and get away with it? Chances are you have. The book, of course, is Genesis. And you are right to encourage your child to read it—with some guidance. It is the best interactive moral teaching tool ever devised: Genesis forces readers of all ages to struggle with eternal issues of right and wrong.

There is a fundamental difference between the Five Books of Moses, especially the first book, Genesis, and the New Testament and Koran. The New Testament and the Koran teach justice largely through examples of the perfection of God, Jesus, and Mohammed. Christian or Muslim parents can hand their children the New Testament or the Koran and feel confident they will learn by example how to live a just and noble life. The parables and teachings may require some explanation, but on the whole, the lessons to be derived from the lives of Jesus and Mohammed are fairly obvious. Who can quarrel with the Sermon on the Mount, or with Jesus' reply to those who would stone the adulteress on the Mount of Olives, or with the parable of the good Samaritan? The same is true with Mohammed. The Koran describes his life as exemplary and Mohammed himself as "of a great moral character. If you pattern your behavior after Jesus or Mohammed, you will be a just person.

In sharp contrast, the characters in the Jewish Bible—even its heroes—are all flawed human beings. They are good people who sometimes do very bad things. As Ecclesiastes says: "There is not a righteous person in the whole earth who does only good and never sins." This tradition of human imperfection begins at the beginning, in Genesis. Even the God of Genesis can be seen as an imperfect God, neither omniscient, omnipotent, nor even always good. He "repents" the creation of man, promises not to flood the world again, and even allows Abraham to lecture Him about injustice. The Jewish Bible teaches about justice largely through examples of injustice and imperfection. Genesis challenges the reader to react, to think for him- or herself, even to disagree. That is why it is an interactive teaching tool, raising profound questions and inviting dialogue with the ages and with the divine.

What lessons in justice are we to learn from the patriarch Abraham's attempted murder of both his sons? Or from God's genocide against Noah's contemporaries and Lot's townsfolk? Generations of commentators have addressed these questions, and rightfully so. They need addressing. These stories do not stand on their own. Reading the Old Testament, and especially the Book of Genesis, must be an active experience. Indeed, the critical reader is compelled to struggle with the text, as Jacob struggled with God's messenger. A midrash describes how man "toils much in the study of the Torah." Maimonides believed that Torah study is so demanding that husbands engaged in this exhausting work should be obliged to have sex with their wives only "once a week, because the study of Torah weakens their strength." For comparative purposes, rich men who don't work must have sex with their wives "every night," and ordinary laborers "twice a week." Whether or not we agree that biblical scholarship should interfere with our sex lives, it is certainly true that we are invited by the ambiguities of the text to question, to become angry, to disagree. Perhaps that is why Jews are so contentious, so argumentative, so "stiff-necked," to use a biblical term. I love reading the Torah precisely because it requires constant reinterpretation and struggle.

I first thought about justice when, as a child, I studied the Book of Genesis. To this day, I remember the questions it raised better than the answers given by my rabbis. To read Genesis, even as a ten-year-old, is to question God's idea of justice. What child could avoid wondering how Adam and Eve could fairly be punished for disobeying God's commandment not to eat from the "Tree of the Knowing of Good and Evil," if—before eating of that tree—they lacked all knowledge of good and evil? What inquisitive child could simply accept God's decision to destroy innocent babies, first during the flood and later in the fire and brimstone of Sodom and Gomorrah? How could Abraham be praised for his willingness to sacrifice his son? Why was Jacob rewarded for cheating his older twin out of his birthright and his father's blessing?

I first encountered these questions as an elementary-school student in an Orthodox Jewish day school (yeshiva) during the 1940s and 1950s. My teachers, mostly Holocaust survivors from the great rabbinic seminaries of Europe, encouraged the sorts of mind-twisting questions posed by the rabbis over the centuries, without fear of apostasy. These were old questions, asked by generations of believers. Each question had an accepted answer—an answer that strengthened faith in the divine origin of the text and in the goodness of God and His prophets. Sometimes there were multiple answers, occasionally even conflicting ones, but they were all part of the canon. Some of them required a stretch—even a leap of faith. But none, at least none that were acceptable, encouraged doubt about God's existence or goodness.

If a skeptical student asked a question outside of the canon, the teacher had a ready response: "If your question were a good one, the rabbis before you, who were so much smarter than you, would have asked it already. If they did not think of it, then it cannot be a good question." The teachers even had an authoritative source for their pedagogical one-upmanship. The Talmud recounts the story of the great teacher Rabbi Eliezer, who was teaching the following principle:

If a fledging bird is found within fifty cubits [about seventy-five feet] . . . [of a man's property], it belongs to the owner of the property. If it is found outside the limits of fifty cubits, it belongs to the person who finds it.

Rabbi Jeremiah asked the question: "If one foot of the fledging bird is within the limit of fifty cubits, and one foot is outside it, what is the law?"

It was for this question that Rabbi Jeremiah was thrown out of the house of study.

I would occasionally ask impertinent questions that got me tossed out of class. I remember upsetting a teacher by asking where Cain's wife came from, since Adam and Eve had no daughters. A classmate was slapped for wondering how night and day existed before God created the sun and the moon. My teachers dubbed these questions klutz kashas—the questions of a "klutz," or ignoramus. But I persisted in asking them, as did many of my classmates. I continue to ask them in this book.

Following my bar mitzvah, I began to deliver divrei Torah—talks about the weekly Bible reading—at the Young Israel of Boro Park Synagogue, which my family attended. My mother found a copy of one of these talks among some old papers, and it was amazing to discover that even back then I was thinking about some of the issues addressed in this book, arguing that rules without reason are antithetical to liberty and that the first seeds of democracy are planted when lawmakers see the need to justify their commands. The talk my mother found was about the Bible portion called Chukkat, which deals with a category of laws for which the rabbis could find no basis in reason. They were divine orders to be followed blindly, simply because God issued them. These chukim were distinguished from mishpatim, which were laws based on reason and experience. The word "mishpat" comes from the same root as the words "justice" and "judge" and so mishpatim (the plural of mishpat) were based on principles of justice, whereas chukim needed no justification.

As I will try to show in this book, the unique characteristic of the Bible—as contrasted with earlier legal codes—is that it is a law book explicitly rooted in the narrative of experience. The God of Genesis makes a covenant with humans, thereby obligating Himself to justify what He commands—at least most of the time. The Bible reflects the development of law from unreasoned chok to justified mishpat. Abraham's argument with God over the fate of Sodom and Gomorrah—the first instance in religious history of a human being challenging God to be just—marks an important watershed in the development of democracy.

These and other stories of justice and injustice had a powerful effect on my young mind. They encouraged me to view the world in a skeptical and questioning manner. If Abraham could challenge God, surely I could challenge my teachers. When my high school principal refused me permission to take a statewide exam for a college scholarship on the ground that no one with my low grades stood a chance of winning, I challenged his action and won both the opportunity to take the test—and the scholarship itself. The Bible had empowered me to pursue justice. I imagine these Bible stories must have had similar effects on the minds of other inquiring students, Christian, Muslim, and Jew alike!

I read Genesis as an invitation to question everything, even faith. It taught me that faith is a process rather than a static mind-set. The Book of Genesis shows that faith must be earned, even by God. Jacob expressly conditions his faith on God complying with His side of the bargain—of the covenant. As a child, I trivialized this unique relationship between God and His people by inventing conditions of my own: I would be faithful if God would bring a World Series championship to Brooklyn. I spent many a faithless day until 1955, when the Dodgers finally beat the Yankees—and promptly moved to Los Angeles. God works in mysterious ways.

As I grew older I continued to ponder the wonderful stories of Genesis. They leap into my mind whenever I think about contemporary issues of justice and injustice, as if they are hard-wired into my consciousness. As a law professor, I have always used biblical narratives in classes as sources of analogy and reference, since most students have some familiarity with Adam, Eve, Cain, Abel, Abraham, Sarah, Jacob, Moses, David, Job, Jesus, and Mohammed.

In the fall of 1997 I decided to offer a Harvard Law School seminar on the biblical sources of justice. I was flabbergasted at the amount of interest. Approximately 150 students applied for the 20 places in the seminar. The classes themselves were exhilarating, as Jews, Christians, Muslims, atheists, and agnostics explored the sacred texts in search of insights about justice and law. In the spring of 1998 I spent several months in Israel, reading biblical commentaries and discussing them with a wide assortment of scholars from differing perspectives. In the fall of 1998 I taught the seminar again, focusing on the narratives of Genesis and Exodus. And in the summers of 1998 and 1999 I led a Bible study group on Martha's Vineyard in which we explored the ethical implications of several biblical stories.

My students have included religious fundamentalists who take every word of Scripture literally. "God said it. I believe it. Case closed," read a bumper sticker I saw in the law school parking lot. At the other extreme I have taught atheists, agnostics, and some who have never even opened a Bible in their lives. As one woman told me: "Until now, I've thought of the Bible as a book I see in a hotel room drawer while I'm looking for stationery."

Some of my students view the Bible as great literature, akin to Shakespeare, Homer, and Dostoyevsky. I regard it differently, as a holy book in which many people believe and for which some have been willing to die—and kill. Whether or not one believes the Bible was written or inspired by God and redacted by humans, it cannot, in any view, be read as just another collection of folktales, short stories, or historical accounts. It is a sacred text, and Scripture must be read differently from secular literature if it is to be fully appreciated. We read Shakespeare to glory in his mastery of language and to share his remarkable understanding of the human condition. Yet we do not look to Hamlet or Othello as templates for moral behavior. We identify with the struggles Shakespeare's characters undergo, while recognizing that Shylock and Lear are the creations of a brilliant human mind. The Bible, on the other hand, purports to be the word of God and the moral guide to all behavior. We are supposed to act on it, not merely ponder its insights. No one was ever burned at the stake for misinterpreting Macbeth.

In preparing for my classes on the Bible, and in writing this book, I have tried to reread the biblical texts afresh. For purposes of the Harvard classes, I am neither Jew nor Christian nor Muslim. I take no position on divine versus human or singular versus multiple authorship. Each student is encouraged to bring his or her tradition to the reading of the texts. Nor do I take a position on the "truth" of the various commentators, who are deemed "authoritative" by different religions. We study many commentators, judging them by their contribution to the discussion and the insights they provide, without regard to their doctrinal presuppositions.

I found particular inspiration in a statement made by the great medieval commentator Ibn Ezra, a Spanish Jew of the twelfth century who was familiar with Greek, Christian, and Islamic philosophy and wrote one of the most brilliant and enduring commentaries on the Bible. Ibn Ezra once said that "anyone with a little bit of intelligence and certainly one who has knowledge of the Torah can create his own midrashism." Midrashim, or the singular midrash, are interpretations of the biblical text by the use of illustrative stories, explanations, commentaries, and other forms of exegesis. There is a traditional saying in Judaism, "There are seventy faces to the Torah," which means there is no one correct interpretation of a biblical narrative. A contemporary scholar has suggested that many of these faces "were latent; and as generation after generation found expression for some or other of these aspects, they revealed again and anew the Torah which Moses received on Sinai."

It is in this spirit that I join this dialogue among generations. Every generation has the right, indeed the duty, to interpret the Bible anew in the context of contemporary knowledge and information. Eight centuries ago the most revered of Jewish commentators, Maimonides, insisted on studying ancient and current writers, both within and outside of his own religion, because he believed that "one should accept the truth from whatever source it proceeds." Maimonides read widely among Greek and Arab writers and was particularly influenced by Aristotle, while fundamentally disagreeing with his concept of God. Norman Lamm, the president of Yeshiva University, has reiterated this eclectic perspective: "No religious position is loyally served by refusing to consider annoying theories which may well turn out to be facts. . . . Judaism will then have to confront them as it has confronted what men have considered the truth throughout generations. . . . [I]f they are found to be substantially correct, we may not overlook them. We must then use newly discovered truths the better to understand our Torah—the 'Torah of truth.'"

It is in the nature of midrashic interpretation that it "keeps its gates open. It never closes a debate." 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. 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.

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." 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. 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.

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." 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. 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."

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.

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." 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. 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. 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."

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. 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. . . ." 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." 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." 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." 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":

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. . . ."

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—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 alder@law.harvard.edu.* I will distribute interesting comments to my students and include you in the dialogue among generations.

*For those without e-mail, my address is:

Harvard Law School
Cambridge, Massachusetts 02138

Copyright © 2000 by Alan M. Dershowitz
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