The Genesis of Justice (34 page)

The rabbis justified this extrabiblical punishment as necessary to prevent lawlessness. They may have been right, but that
would have implied that the Bible was wrong! The rabbis could not, of course, acknowledge that the biblical procedures were
too stringent, so they came up with a series of rationales for why their approach was consistent with Scripture. Nevertheless,
killing a defendant who has been found not guilty by the formal legal system simply cannot be reconciled with the explicit
biblical command “Do not execute one who is innocent or who has been acquitted.”
¹⁸

It is difficult to identify any genre of later biblical rules, from the most general to the most specific, which does not
have its source in the early—preSinai—narratives of the Bible. The prohibition against placing a stumbling block in the way
of the blind—which has been interpreted as a broad directive to be fair—has its source in Jacob’s deception of his blind father.
The rules that require two witnesses protect against false accusation. The biblical law is particularly harsh when it comes
to bearing false witness, because, as we have seen, Genesis is so rife with tales of false accusation and injustice. “Thou
shalt not utter a false report; put not thy hand with wicked to be an unrighteous witness. Thou shalt not … bear witness in
a cause to turn aside after a multitude to prevent justice.”
¹⁹
“Keep thee far from a false matter; and the innocent and righteous slay thou not.”
²⁰
The principle of the talion was explicitly imposed on the bearer of false witness. His punishment was the precise punishment
that would have been inflicted on the victim of his false testimony.
²¹

Even many of the ritual laws have sources in the narrative of Genesis—ranging from circumcision, which God directly commands
Abraham to perform on every male throughout the generations;
²²
to the kosher laws, which begin with Noachide prohibition against eating blood,
²³
continue with the sinew, and then later develop in the law books into a catalog of specific dos and don’ts; to sacrifices,
which begin with the story of Cain and Abel
²⁴
and then continue to Noah and to Abraham and his progeny. General ethical prescriptions, which begin with God’s directive
“to do righteousness and justice”
²⁵
and continues to the grand admonition, “Justice, justice, shall you pursue,”
²⁶
also trace their sources to the narratives of unrighteousness and injustice in Genesis.

The genesis of justice is in the narratives of injustice found in the Book of Genesis. There are also examples of justice
and nobility, but these are to be expected in a book of religious narratives. What is remarkable is how the Bible uses stories
of injustice to teach about the need for justice. This inspired collection of tales tells the story of the law’s development
throughout the ages: Lawlessness and injustice provide the impetus for change and improvement. Understanding the complexities
of justice—historical and contemporary—requires an understanding of the passions of the people of Genesis. We continue to
strive, through law and other social controls, to suppress the
yetzer ha-ra
—the evil inclinations—that all humans possess and to encourage the
yetzer ha-tov
—the good inclinations—that most humans also possess. This story is told in Genesis. It will continue as long as Adams and
Eves are tempted by serpents, Cains are enraged by jealousy, Abrahams fight for justice, Jacobs succeed by deception, Tamars
are blamed for men’s passions, Josephs are falsely accused, and God does not always bring about visible justice.

In other words, the story of Genesis will continue until the end of humankind.

1.
Genesis 32: 33.

2.
The rabbis call a vague, symbolic association between a narrative and a rule
asmachta
.

3.
Maimonides struggles to find the source for the commandment to circumcise males in the subsequent law book, where it is in fact found: Leviticus 12: 3. But it is found earlier in God’s covenant with Abraham: Genesis 17:11.

4.
Several midrashim elaborate on Abraham’s break with his father’s idolatry. See
Midrash Rabbah
, vol. 1, p. 310. See also Ginzberg, Louis,
The Legends of the Jews
(Baltimore, MD: Johns Hopkins University Press, 1998), p. 214.

5.
Midrash Rabbah
, vol. 1, pp. 214-15.

6.
35: 22.

7.
Midrash Rabbah
, vol. 1, p. 131.

8.
Genesis 18:19.

9.
Ginzberg, vol. 2, p. 183.

10.
21: 23-25.

11.
The Code of Hammurapi adumbrated this concept, but without regard to individual culpability. For example, Hummurapi ordered the killing of the daughter of a man who has killed another’s daughter. See Plant, W. Gunther, Ed.,
The Torah: A Modern Commentary
(New York: Union of American Hebrew Congregations, 1981), p. 574.

12.
But monetary compensation is not mentioned for these specified wrongs. Traditional “translations” of the Bible sometimes insert the words “compensation of” before the words “eye,” “tooth,” and so on. See Samson, Raphael Hirsch,
The Pentateuch
(New York: Judaica Press, 1996). This denies the reader who does not understand Hebrew the distinction between p’shat (literal translation) and d’rash (rabbinic explanation). Although the rabbis themselves believed that monetary compensation
is
the p’shat, the reader should be permitted to decide for him or herself. In some parts of the world, even today, the blood feud persists and sometimes mandates “a 2-for-1 or even a 3-for-1 payback.” “The Curse of Blood and Vengeance,” Scott Anderson,
New York Times Magazine
, December 26, 1999, pp. 29, 33, 57.

13.
See generally, George P. Fletcher,
Reflections on Felony Murder
, 12 Sw. U. L. Rev., 413; 427-29 (1981).

14.
Exodus 21:32-37; 22:1-8. Sometimes “double restitution” is required.

15.
Numbers 35:31-32 prohibits the taking of money for the life of a killer. Commentators cite this in support of the conclusion that monetary compensation is permissible for injuries short of death. An extensive debate on this subject appears in Bava Kamma 83b-84a. The rabbis conclude that the Torah intended monetary compensation for non-lethal injuries.

16.
Exodus 23:7.

17.
Mishna Sanhedrin 9:5. Elon, Menachem,
The Principles of Jewish Law
(Jerusalem: Encyclopedia Judaica, 1974).

18.
Exodus 23:7. The Hebrew used the prefix ve- in listing “the innocent
or
who has been acquitted.” ve- means “and” rather than “or,” thus allowing the argument to be made that the commandment covers only an innocent person who has been acquitted, rather than a guilty one.

19.
Exodus 23:1-2. The stumbling block reference appears at Leviticus 19:14.

20.
Exodus 23:7.

21.
Deuteronomy 19:19.

22.
Genesis 17:12.

23.
Genesis 9:4. Even the laws of ritual slaughter of animals is said to derive from the manner by which Abraham began to slaughter Isaac: “If the deduction from the verse was made as a true law, then an immovable object is absolutely unfit…” (
Midrash Rabbah
, vol. 1, p. 496, n. 5). In addition, the concept of substituting an animal for a human sin sacrifice derives from this story. Idem. at p. 499: “Sovereign of the universe! Regard it as though I had sacrificed my son Isaac first and then this ram instead of him.”

24.
Genesis 4:3-5.

25.
Genesis 18:19.

26.
Deuteronomy 16:20.

The modern version of the tale of independent Rabbinic decision making. It is not original with me, although I cannot recall
where I first heard it. I have used it on a number of occasions and have yet to come across anyone—whether Rabbi, Priest or
Minister—who was already familiar with it. So here it is:

The Religious Practices Committee at Temple was having its final meeting to decide whether to adopt a new prayer book. The
issue had been discussed at earlier meetings, but now it was time to decide. One member of the Committee commented he liked
the book; it was easy to hold. Another agreed and said she liked the simple English. There were other comments in a similar
vein. Finally, the Rabbi could no longer remain silent. He announced that the new prayer book might be easy to hold and it
might contain simple English, but it did not set the right tone or reach the right level expected of a prayer book. The question
was called, the vote was taken and the Chairman announced that the new prayer book had been approved 11 for and I against.

At this the Rabbi was furious. “You cannot do this,” he shouted. “This book is an abomination. It must never be used in our
Temple. I feel so strongly about this that I am calling upon God to send us a message about this book and to show you that
I am right.” Suddenly there was thunder and a voice was heard declaring, “Your Rabbi is right; this book is an abomination.”
The Committee members were in shock at what had just happened. The Chairman was the first to recover and he announced, “The vote is now 11 to 2!”

—S.S.

I believe it was Isaac, and NOT Abraham who was being tested on the mountain: Isaac carried the wood and fire up the mountain
and then allowed his father to bind him and lay him on the altar. Clearly Isaac was a willing participant in the event. Why
would Isaac allow himself to be sacrificed? Because, like his father, he had trust in God.

Abraham may have showed moral trust in God, but Isaac was the one who showed both moral and empirical trust. In the falling
backwards analogy, it was Isaac who “fell backwards” and—putting his faith in God and his father—willingly went to the slaughter.

I also believe that God did not stop dealing directly with Abraham because Abraham failed the test, but because Isaac passed
the test. Once God was sure that Isaac would abide by the covenant, He no longer had any need of Abraham. If Isaac had failed
the test, God simply would have selected one of Abraham’s other children to carry on the family business.

—J.P.

Who are you to write or say what God is or what He does or how He does it. God created man not man created God. He put life
into us, so that means He can take it away if He so desires, but because He is so merciful (always has been) He does not.
I am praying that He shows mercy upon you when your day of judgment comes. Listening to your comments on the
Today
show have me wondering what Bible have you studied or what kind of teaching did you receive. I was always taught if your
pastor is not teaching you right or you feel you are not getting what your soul needs then go somewhere else. I am praying
for you and anyone that reads this book. The Bible speaks on trying the spirit to see if they are of God and I know that this
one is not. It also speaks about not being deceived and this will do just that. It really bothered me to hear you say that
God made a mistake. He does not and everything He does is good. God is not a man that He should lie neither repent. If you
ask God to open your understanding to His word, He will do just that and you will see that there were many laws written in
the book of Genesis…. May God have mercy on you and whoever had a part in writing and publishing this.

—Y.V.

The time during which Abraham stretches forth his hand is important. He has obeyed God’s command in that he has brought Isaac
up to the designated spot and offered him. But he is also in the process of obeying the Noachide command regarding shedding.
This time he doesn’t use words but rather actions to show God the ramifications of the conflict. God sees that Abraham is
one who fears because of that slow motion. Given Abraham’s past character, I’d give him the benefit of the doubt. (The messenger,
I’d suggest, is both God’s angel and, as your daughter offered, his good impulses combined. After all, the angel calls Abraham’s
name twice. God only called once!)