The Genesis of Justice (26 page)

A midrash suggests that Joseph did not actually fool his brother Benjamin, only the brothers who sold him into bondage. Its
purpose is obviously to show that Joseph would never inflict pain on an innocent bystander, only on those who deserve payback:

Joseph ordered his magic astrolabe to be brought to him, whereby he knew all things that happen, and he said unto Benjamin,
“I have heard that the Hebrews are acquainted with all wisdom, but dost thou know aught of this?” Benjamin answered, “Thy
servant also is skilled in all wisdom, which my father has taught me.” He then looked upon the astrolabe, and to his great
astonishment he discovered by the aid of it that he who was sitting upon the throne before him was his brother Joseph. Noticing
Benjamin’s amazement, Joseph asked him, “What hast thou seen, and why art thou astonished?” Benjamin said, “I can see by this
that Joseph my brother sitteth here before me upon thy throne.” And Joseph said: “I am Joseph thy brother! Reveal not the
thing unto our brethren. I will send thee with them when they go away, and I will command them to be brought back again into
the city, and I will take thee away from them. If they risk their lives and fight for thee, then shall I know that they have
repented of what they did unto me, myself known unto them. But if they forsake thee, I will keep thee, that thou shouldst
remain with me. They shall go away, and I will not make myself known unto them.”
¹³

The sinning brothers do not forsake their innocent sibling, and Joseph—realizing that his revenge has gone far enough—identifies
himself and exposes the charade. Now that the old score has been settled, the brothers can move on and reunite. All is forgiven,
but not forgotten, as their father will remind them in his deathbed legacy.

The Joseph narrative illustrates a world in which justice ultimately prevails, but not because of the rule of law. Justice,
in the Joseph story—as in the Tamar story—depends entirely on the whims of men, the fickleness of fate, and the miracles of
God.

The horror of false accusation will recur throughout Jewish history. The blood libel alone—the false accusation that Jews
use the blood of ritually murdered Christian children to bake matzo—took thousands of Jewish lives during the Middle Ages.
¹⁴
The jurisprudence of the Bible’s law books, especially Exodus and Deuteronomy, reflects the frustrations felt first by Joseph
and later by his brothers. The bearing of false witness—which includes the planting of evidence—is made a terrible sin and
crime explicitly proscribed in the Ten Commandments. Its punishment is symmetrical to the crime: You are to “do to him as
he schemed to do to his brother.”
¹⁵
The law also builds in other protections against false accusations, as if to recall the ease with which the powerful—Potiphar’s
wife and later Joseph the overseer—could plant false evidence against the powerless and the difficulty the powerless have
in defending themselves against such overwhelming physical evidence.

These stories of false evidence are the first intimations of the need for a legal process—for
procedures
of law in addition to the
substantive
rules. “Thou shall not kill” does not prevent an innocent person from being falsely accused of killing. The earlier crimes
of Genesis were seen by God and judged by Him. Abraham worried that the innocent would be swept along with the guilty not
because the evidence was false (a procedural issue), but because God would impose collective responsibility on an entire city
as he had on the entire world (a substantive issue). God responds by acknowledging—implicitly—the inherent human difficulty
in distinguishing the guilty from the innocent and the need for a fair process. Later on, in the Book of Exodus, God is even
more categorical: “Keep far from a false matter; and the innocent and righteous do not slay. … ”
¹⁶

The Joseph narrative alerts us to the most primitive kind of evidentiary problem: the deliberate misuse of evidence in an
effort to frame the innocent. There are, of course, many variations on this theme. For instance, evidence can be planted against
the guilty in order to make their conviction more certain. There have been numerous instances of such misconduct in modern
times, most notably by New York State Troopers who were convicted of planting fingerprints against drug dealers they had difficulty
catching. Mistaken identification and imperfect memory may cause the inadvertent conviction of the innocent. Modern DNA testing makes this more difficult, but certainly not impossible. Bias by the decision maker may skew the evidence
against the accused or in extreme cases may cause the decision maker to ignore plain evidence of innocence. It is impossible
for any legal system to protect against all errors—either deliberate or inadvertent. But a system can create safeguards that
make conviction of the innocent less likely. These safeguards are expensive, not only because they require material resources,
but because they must occasionally allow the guilty to go free. For the believing person, God provides an assurance of divine
retribution: “I will not acquit one who is guilty.”
¹⁷
For those more skeptical about God’s justice, the occasional freeing of the guilty is seen as a necessary cost of any fair
system. It is the willingness of a legal system to make this trade-off—allowing some guilty wrongly to go free in order to
assure that very few innocents are wrongly convicted—that marks the maturation of any jurisprudence.

The story of Joseph forms the prelaw predicate for the intricate and innovative system of legal protections found in the later
books of the Bible: the requirement of two witnesses, the protection against self-incrimination, the prohibition against double
jeopardy, the difficulty of imposing capital punishment, and the strong condemnation against punishing the innocent. Like
much of the earlier narratives of Genesis, the Joseph story shows us what it was like to live in a world without a legal system—a
world in which those with high status could, with impunity, falsely accuse those of lower status. It shows us the need for
a system of justice in which all stand equally before the law and those accused of a crime have a fair opportunity to challenge
the evidence against them and to demonstrate that it was planted, false, or mistaken. It leads inexorably to the later biblical
rules against favoring in judgment either the rich or the poor.

Anyone who has been falsely accused of a crime will appreciate the need for a system of justice in which the accused has the
right to confront the accuser on a level playing field. The Joseph narrative makes the reader empathize with the plight of
the falsely accused and sets the stage for the rigorous—and often counterintuitive—safeguards of the subsequent law books.
As we apply these safeguards, we hear Yehuda’s plaintive question ringing in our ears: “How can we clear ourselves?” The answer
is by a fair system that places a heavy burden on the accuser and provides the accused with adequate safeguards against the
kind of false evidence employed in the story of Joseph.

And so the Book of Genesis ends with a segue to the great law book of the Bible—Exodus. It begins with a story about man and
woman in the state of nature, before rules or law—a world in which passions reign. It continues with stories of men and women
struggling with their instincts for good and evil. It ends with a morality tale about people wrongly accused, unable to speak
out against injustice and ultimately triumphing not because of the rule of law, but rather because of the fiat of man and
the benevolence of God. In Exodus, Moses, the lawgiver, brings down from Sinai not only the Ten Commandments,
¹⁸
but also the detailed code of laws and legal procedures designed to govern all human behavior.
¹⁹
In order to appreciate the absolute need for a comprehensive legal system of both substantive and procedural rules, it is
essential first to see how human beings behave in a world without law. Genesis shows us that world.

There is a midrash that supports this interpretation. A talmudic rabbi asks the question “Why was the Torah given to Israel?”
His answer is that the people of Israel
needed
the Torah because before they received the law, they were a “wild” people.
²⁰
A rabbinic story elaborates this theme. The angels demand that the Ten Commandments be given to the angels rather than to
the Jews. God allows Moses to make the case for the Jews. Moses asks the angels whether they ever feel the temptation to murder,
rob, or commit adultery. The angels respond, “Of course not. We are angels.” Moses turns to God and says, “Ah-ha, the angels
do not need the law. It is necessary only for humans, who are always tempted to do evil.”

The Book of Genesis is about human passions and temptations in the absence of law. There are certainly enough untrammeled
passions and lawlessness in Genesis to justify the need for a formal legal system. We see Cain’s murder insufficiently punished
and Cain eventually rewarded with the role as builder of cities. We see Lot raped by his daughters, and Dina humbled by a
man who comes to love her. That man and his entire clan are then tricked and massacred by brothers who become tribal leaders
of Israel. Indeed, a midrash says that the “sons of Jacob were like wild beasts. … ”
²¹
We see Jacob deceiving and deceived, Joseph falsely accused and then planting evidence so that his treacherous brothers are
also falsely accused. There are no explicit rules governing such behavior, and what few general rules exist are changed at
the whim of the rule maker. Hardly a positive picture of the law in action.

There is another way of viewing the Book of Genesis. Although it shows a world without
systematic
rules, it is also a world groping for such rules—a world evolving toward a system of formal justice under which rules are
announced in advance and applied fairly by a complex process of justice. We see a world pursuing justice, as Deuteronomy is
later to command. We see the genesis of justice in the injustice of Genesis. It is to this broad subject that we now turn.

1.
A midrash says that God placed Joseph on trial because he was vain about his beauty (
Midrash Rabbah
, vol. 2, p. 807, n. 2).

2.
Midrash Rabbah
, vol. 2, p. 812.

3.
Ginzberg, vol. 2, p. 43.

4.
Ibid., p. 85.

5.
Ibid., p. 100.

6.
Ibid., p. 112.

7.
Indeed, the phrase is repeated twice, as if for emphasis (50:1-2).

8.
The biblical word is traditionally translated as “bones,” but it can also mean “essence” or perhaps even “remains.” But it would not include a completely embalmed body.

9.
Ginzberg, vol. 2, p. 150.

10.
Ibid., p. 38.

11.
Ibid., p. 128.

12.
Ibid., p. 181.

13.
Ibid., p. 98.

14.
There was even a blood libel trial in Kiev, Ukraine, as recently as 1911. The defendant, Mendel Beilis, was acquitted, but only after a jury rejected the testimony of a priest who swore the blood libel was true. Bernard Malamud’s novel,
The Fixer
is loosely based on this case.

15.
Deuteronomy 19:19.

16.
Exodus 23:7.

17.
Ibid.

18.
The “Ten Commandments” is really a mistranslation of the Hebrew “Aseret Divrot”—the Ten Statements. These statements include both commandments and declarations.

19.
According to Jewish tradition, God gave Moses not only the written law, but the oral law as well. See generally, Twersky, I.,
A Maimonides Reader
.

20.
The Hebrew word can also be translated as “fierce.” The Soncino translation is “impetuous” (
Babylonian Talmud
, Beitzah, p. 25, side B). My appreciation to Dr. Norman Lamm for alerting me to this quotation.

21.
Ginzberg, vol. 2, p. 99.