The Genesis of Justice (27 page)

T
HE GENESIS OF
J
USTICE IN THE
I
NJUSTICE OF
G
ENESIS

T
he Book of Genesis can be read as a metaphor reflecting the stages most legal systems experience on the rocky road from lawlessness
to law-abidingness. It has not been a linear development. Instead, as in Genesis, we have seen progress followed by regress
followed by progress—sometimes one step forward, two steps back, and then a leap forward, like the Magna Carta and the United
States Constitution. Other times, as with Nazi Germany and Stalinist Russia, the leap has been backward. Occasionally it has
been unclear whether a step is forward or backward, or whether there is even agreement as to what constitutes forward movement.
No two systems have followed exactly the same course. But a few common themes can be identified, and they appear in Genesis.

Genesis also reflects a world in which law is largely “natural” rather than “positive.” Actions and reactions derive from
the nature of human beings and their Creator, not from formal codes of conduct. Any law that calls itself “natural” will necessarily
be as arbitrary, variable, unpredictable, vague, and subject to multiple interpretations as is human nature or the nature
of God.
¹
And the nature of human beings is as varied as the number of human beings. In the single book of Genesis, we meet a motley
assortment of characters, including the fratricidal Cain, the human rights advocate Abraham, and the family man Jacob. These
characters do not remain constant, each showing enormous variations within their lifetime. Cain begins as a cold-blooded murderer
and ends up as a builder of cities. Abraham argues with God over the lives of strangers and then refuses to argue for the
life of his son. Jacob begins as a nice young man (“ish ta’am”), becomes a conniving tactician, and ends up as a caring father
capable of the most perceptive and uplifting of blessings.

The human beings of Genesis, like those throughout history, share no singular nature or even common trait. A world that can
produce Moses, Jesus, Hillel, and Schweitzer, as well as Hitler, Stalin, Torquemada, and Genghis Khan, is not a world that
can be reduced to a singular view of human nature.

Even the God of Genesis lacks a singular nature. He is a petulant, vengeful, demanding, and petty God, as well as a forgiving,
merciful, life-affirming, and even repentant God.
²

Little about the specific
content
of the Bible’s natural law can be derived from the infinitely variable nature of either the humans or their creator as described
in the Book of Genesis. The open-textured quality of the biblical narratives makes it inappropriate to derive from them one-dimensional,
agenda-driven “morals.” No single lesson flows from these multilayered stories, and those who seek to reduce them to a proof
text for a particular conclusion do not do justice to their complexity and brilliance. For example, the story of Cain and Abel has been cited by both sides of the capital punishment debate as proof that God supports
their side of the controversy.
³
Likewise, the Sodom and Gomorrah story has been cited by both sides of the controversy over homosexuality.
⁴

What we
can
derive from the stories of Genesis is the
need
for an agreed-upon and enforceable code of conduct with procedural safeguards against arbitrary enforcement and unfair application.
The remaining books of the Bible, and the subsequent history of the Jewish people’s obsession with justice, deal with these
needs. In the law books of the Bible we are given the broad principles in the Ten Commandments, the specific rules of conduct—both
positive and negative—as well as a directive to pursue justice actively, as if it were an unattainable grail.

In the beginning, all “law” is ad hoc. It involves random orders and threats from the powerful to the powerless. God’s first
command, not to eat from the Tree of Knowledge, lacks apparent reason and defies human nature. Sanctions are inconsistent
and unpredictable. Indeed, the very unpredictability of the punishment is seen as a source of power. God’s first threat to
Adam—“On the day that you eat from [the Tree of Knowledge] you must die, yes, die”—is followed by the imposition of a very
different series of punishments. Inconsistency and unpredictability also characterized the punishment of Cain for killing
his brother, Abel. This is in the nature of ad hoc punishment; it is determined not by a preexisting code of laws, but rather
by an evolving yet incomplete sense of justice. Also characteristic of ad hoc punishments is the pendulum swing of underreaction
followed by overreaction until an appropriate middle ground of proportionate reaction is discerned. Trial and error is inevitable
in any ad hoc approach to justice. God, who was able to create the physical universe in just six days, finds it far more difficult
to design a system of justice by which to govern His human creatures.

Not surprisingly, therefore, God—the source of justice in Genesis—overreacts to His underpunishment of Adam, Eve, and Cain
by destroying the entire world, except for one righteous family and one mating pair of every species of animal. The remarkable
God of Genesis not only learns from His mistakes, but He publicly acknowledges His lack of omniscience in His own Book for
all to read. He repents His creation of mankind and tries to improve upon His first draft. Then God recognizes His overreaction
by promising that He will never again sweep away the innocent along with the guilty—at least not in a flood. Finally, God
realizes that His ad hoc approach to punishment has not worked very well, and—for the first time—He sets out a series of rules
governing all human beings, the most important of which is that he who murders another human being shall himself be punished
by execution.
⁵

This process of evolution from ad hoc rules and disproportionate sanctions to codified rules and proportionate sanctions has
characterized most legal systems. Generally the individual cases begin to form some type of “common law” mosaic, from which
a precedential pattern can be discerned. This pattern is then formalized into some sort of a code, accessible for all to see
or hear.

The late Justice Hugo Black once described a king who wrote the laws in a hand so fine that his subjects could not read them.
This gave the king the power to change the laws at will and to enforce his own whim. Justice Black’s colleague on the Supreme
Court, Felix Frankfurter, conjured up a different image to make a similar point. He contrasted our system of rule-bound justice
with the kind of individualized justice administered by “a kadi sitting under a fig tree.” In both colorful examples Justices
Black and Frankfurter criticize justice that relies too much on the rule of man rather than the rule of law.

The rule of law is supposed to apply to all people regardless of status or station. The governing rules are announced in advance,
so that all can know which actions will be punished and which rewarded. Moreover, the rules are published before people can
determine who will be their beneficiaries and who their victims.
⁶

Unfortunately it is impossible to create rules that anticipate all evil or good actions. Rules, no matter how complete and
carefully written, will always have interstices—holes—which must be filled on a case-by-case basis. The existence of these
holes will inevitably produce the need for some individualized justice. The wise King Solomon is seen as the paradigm of individualized
justice, making up the rules as he goes along. But history has taught us not to expect all of our kings to be Solomonic. That
is why we try to have law
makers
(legislators) who write general laws, and law
appliers
(judges) who apply the general rules to particular situations. One of the foundations of any legal system is to strike an
appropriate balance between the rule of law and the rule of man and woman.

The contemporary American system of justice seeks to strike that balance by a complex system of checks and balances among
the legislative (lawmaking), executive (law-enforcing), and judicial (law-interpreting) branches. We are governed by a written
Constitution, which, like the Bible, combines specific rules (a president must be at least thirty-five years old) with open-textured
guides to action (no one may be denied the “due process” or “equal protection” of law). Then we have statutes—federal, state,
and municipal—which must conform to the Constitution. Executives—the president, governors, mayors—enforce these statutes.
And the courts interpret and apply them, subject to ultimate review by the Supreme Court to determine whether they are consistent
with the Constitution.

In this respect, there are parallels between the American system and the biblical system. At the pinnacle of the biblical
system is, of course, the text of the Bible itself. It is like the Constitution, in that it trumps all subsequent legislation,
unless it is properly amended. Christianity claims to have amended the Old Testament with the New Testament. Specific rules,
such as the prohibition against eating unkosher food, were abrogated. It is interesting that in “amending” the original “constitution,”
Jesus used words that would be familiar to lawyers and judges: “Think not that I come to destroy the law … I am not come to
destroy, but to fulfill.”
⁷

Within the Jewish tradition, the Pentateuch can never be amended.
⁸
But it can be interpreted in accordance with prescribed hierarchical rules. According to this tradition God gave the Oral
Torah directly to Moses along with the written Scripture. Moses then transmitted it to Joshua and the seventy elders, who
then gave it to others who passed it on. It eventually reached those who “compiled the Mishna” and then was studied by later
generations and interpreted by reference to “thirteen hermeneutical rules, to which the Great Tribunal assented.”
⁹
It follows from this hierarchy of authority that each generation must defer to the more authoritative views of its predecessors
who were closer in time to the original source, but everyone is bound by the agreed-upon methodology of interpretation. The
famous legend of the rabbis ignoring God’s own voice and admonishing Him that “we pay no attention to Heavenly voice, because
Thou hast long since written the Torah at Mount Sinai” is a story about who has the authority to interpret the text of a governing
document. It is a story that has recurred throughout history. The foundational Supreme Court decision in
Marbury
v.
Madison
—in which the justices claimed the authority to strike down unconstitutional laws and actions—is a variation on the talmudic
story. Just as the rabbis asserted the power to interpret the Torah, so too the justices asserted the power to interpret the
open-textured phrases of that enduring document according to contemporary needs and realities. I have heard judges argue that
the framers, by including open-textured phrases, intended the Constitution to be subject to ongoing interpretation. Today
a debate rages over whether the justices should be bound by “heavenly voices” claiming to know the elusive “original intent”
of the framers or whether they should interpret the Constitution to be a living, breathing document, capable of adapting to
change. I have heard rabbis make similar arguments about the Bible.

The Book of Genesis contains the seeds of these enduring
debates in its narratives about the path from fiat to justice—a path that is never direct and always reflects the inevitable
detours of any human journey. In Genesis we see ad hoc rulings, followed by early attempts at limited codification, followed
by more ad hoc rulings, followed by common-law development. Interspersed are bargains, contracts, covenants, tests, trials,
changes of status, and other legal forms characteristic of developing systems of justice. We also see challenges to authority,
rule breaking, cheating, reneging, renegotiating, legal technicalities, and other phenomena characteristic of human interactions
with justice systems.

After a rough beginning—out-of-control crime, a flood, a promise not to do it again—God establishes a covenant with Abraham,
thus changing the status of both: God becomes a constitutional monarch, binding Himself to rules; and He bestows upon Abraham—and
his progeny—a special status as partner in the covenant. Then, as if to discern boundaries of this new legal arrangement,
God subjects Abraham to two seemingly inconsistent tests.

Abraham passes the first with flying colors, thereby establishing as part of the common law of Judaism that it is not only
permissible, it is obligatory to argue even with God about a proposed injustice. God later commands, “
Tzedek, tzedek, tirdof”
—“Justice, justice shall thou pursue.” The word
“tirdof”
literally means “to chase after”—as if never to catch. Perfect justice is not an achievable static concept. It is an imperfect
process. Just as “the struggle for liberty never stays won,” so too the quest for justice is never achieved. The repetition
of the word
“tzedek”
can now be understood as referring not only to human justice, but also to divine justice.
Chutzpah k’lapei shemaya
—humans must show chutzpah not only in demanding justice from the denizens of the earth, but also from He who rules the heavens.
God willingly accepts this limitation on His absolute authority, boasting to the angels that “my children have defeated me”
in argument.
¹⁰