The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law Warner Books By Alan M. Dershowitz Warner Books, 2000
"To read Genesis, even as a ten-year-old, is to question God's idea of justice."
With this as his starting point, Alan Dershowitz takes us on a journey through Genesis in which he explores issues of biblical justice and injustice. As a Constitutional lawyer and educated Jew, his thesis is simple: The rationales for biblical justice, and particularly the Ten Commandments, evolve out of the "human passions and temptations in the absence of law" (p.197) described in the Genesis narratives and are "a reaction to the anarchy of the narratives." (p. 245) He argues not only did the Jewish legal system develop in stages over time, but that God's role as Supreme Judge also evolved in the process.
Based on conversations conducted in his biblical law classes at Harvard and his summer study group on Martha's Vineyard, Dershowitz presents this evolutionary theory of Jewish law while also engaging the reader in a purposeful text study. In fact, this book feels almost like two different, but related books. He presents his thesis argument and related issues in Parts I and III. In Part II, he explores ten biblical narratives, using a variety of resources, from traditional midrash to medieval commentators to Kierkegaard. He eschews the "defense lawyer" arguments (those that try to defend, in the simplest terms, the characters' actions and motivations) in favor of a more nuanced understanding of the texts. Given his deep understanding of judicial process, he is able to point out how various themes of justice and injustice weave themselves through the biblical narratives.
ABOUT THE AUTHOR
Alan Dershowitz, a Brooklyn native, attended Yeshiva University High School, Brooklyn College before entering Yale Law School, where he was first in his class and served as editor-in-chief of the Yale Law Journal. At the age of 28, he became the Felix Frankfurter Professor of Law at Harvard University, the youngest professor in the school's history.
Outside the classroom he is known as a litigator and media commentator. As a lawyer he has represented a number of high profile clients including Jonathan Pollard, Claus von Bülow, O. J. Simpson, Anatoly Shcharansky, Michael Milken, Mia Farrow, and Mike Tyson. He is the author of many books, including two of particular Jewish interest--The Vanishing American Jew and Chutzpah.
A SUGGESTION FOR READING THIS BOOK
If you would like to understand his theory in its entirety before reading the "proof texts," you might first want to read Parts I and III of The Genesis of Justice before going on to the biblical stories. This will allow you to look for and trace some of the themes Dershowitz weaves through his exploration of the stories, such as proportional justice, God as a learning God and guile as a survival tactic.
DISCUSSION QUESTIONS
One of Dershowitz' premises is that the God of Genesis is a learning God whose ideas of justice evolved over time. He suggests that the reason God did not carry out the threat to kill Eve once she touched and ate from the Tree of Knowing was because "God Himself was still learning about justice and injustice." (p.40)
What do you think of this description of God? To what extent do you think of God as a dynamic, and not a static, force?
We often describe God as omniscient. Do you think the idea of a learning God contradicts this description? Why or why not?
Several of the biblical narratives raise concerns about God punishing innocent people: the story of Abraham arguing with God about saving the people of Sodom; the story of the flood; and the vigilante murder of the people of Shechem. According to Dershowitz, "In the end, every system of justice must decide which is worse: convicting some innocents or acquitting some guilty." (p. 86)
Which do you think is worse? What leads you to your conclusion?
In what ways does the American legal system handle this dilemma?
Searching for meaning in the story of Lot's rape by his daughters, Dershowitz suggests, "Perhaps the message is that the perpetuation of life is more important than the rules of sexual propriety?the message may be to favor a kind of situational ethic--at least when sex is involved--over a more categorical imperative." (p. 98-99)
What do you think of this interpretation? What arguments could you make for and against situational vs. absolute ethics?
Later in the book, when exploring the story of Tamar sleeping with her father-in-law Dershowitz writes, "The imperative of motherhood--especially motherhood of biblical leaders--trumps even the rules against incest?" (p. 175-76.)] Do you agree that situational ethics might be more appropriate when "sex is involved?" Why or why not?
Under what other circumstances can you imagine situational ethics might be warranted?
Dershowitz' longest chapter covers the biblical narrative dealing with Abraham's "attempted murder" of Isaac. He struggles to understand God's command and Abraham's obedience. After presenting a variety of explanations, Dershowitz concludes, "My own favorite interpretation is that by commanding Abraham to sacrifice Isaac, God was telling Abraham that in accepting the covenant, he was not receiving any assurances that life would be perfect?that being a Jew often requires sacrificing that which is most precious to you--even children." (p.126)
From your experience, do you find that "being a Jew often requires sacrificing that, which is most precious to you?"
Dershowitz lives with the memory of the Holocaust and it permeates much of how he understands contemporary Jewish life. To what extent do you share that perspective? How might we understand "sacrificing that which is most precious" in a post-Holocaust world?
As a theme, the efficacy of trickery runs through both the Jacob and Tamar stories. Dershowitz generalizes his understanding of this theme and suggests how it has played out in Jewish history.
"In order to succeed and not be victimized, an individual must rely on either violence or guile?Guile is the great leveler between the physically unequal?Jews as a people and the women of Genesis share a common need to resort to guile in order to achieve the equality denied them in physical strength." (p. 142)
?the narrative of cunning and guile becomes a knife that cuts both ways. On the positive side, they are metaphors for survival in a hostile world. At the same time, they play into the stereotype of Jew as manipulator and trickster. p. 177
How do you feel about Dershowitz' charge that Jews need to resort to guile to achieve equality? To what extent do you think the Jews' situation is unique?
With which stereotypes of Jews as manipulators and tricksters are you familiar? How do you feel about these characterizations?
Dershowitz' thinking seems to suggest an unbreakable cycle--the world is hostile and so the Jews resort to deception in order to survive which, in turn, generates more hostility, etc. What do you see as the outcomes of such a cycle? Is this cycle "good for the Jews?"
The positioning and the content of the Dina narrative present many challenges. Dershowitz suggests several possible meanings of the story:
It is a demonstration of natural clan violence and retaliation.
It is yet another indication of Jacob's narcissism ("You have stirred up trouble for me.")
It is a stern condemnation of intermarriage
It is an early model of Jewish empowerment
It is a powerful statement about the humiliation of rape How do you understand the meaning of this story? What lessons for today might we draw from it?
In struggling to understand biblical justice, including reward and punishment, Dershowitz suggests three evolutionary phases of theodicy: 1) God threatens immediate and visible consequences on earth; 2) God delivers consequences that are in this world, but beyond the life span of any particular generation; and 3) God individualizes punishment and reward, although justice may be administered in a world to come.
How do you explain why bad things happen to good people? What role does God play in your explanation?
Do you believe in a world to come? If so, to what extent does it exist as a place where justice is carried out?
In what ways do you think your life experience and the life experience of our biblical ancestors would lead us to similar conclusions about when and where justice happens? How might our experiences lead us to different conclusions?
In discussing the legal principle of "measure for measure" or the talion, Dershowitz describes a biblical experience that moves from excessive and erratic punishment to moderate and certain punishment. "At the beginning of [the] world, punishment was anything but proportional. God was too lenient on Cain, too harsh on the victims of the flood and the brimstone, too unpredictable in relation to Adam and Eve and too harsh in His testing of Abraham." (p. 253)
What are your thoughts on divine justice? Is it your experience that divine punishment fits the crime?
What are your thoughts on our American justice system? Do you think our punishments fit our crimes?
In what other ways, in addition to the monetary compensation the rabbis suggested, does our system punish offenders? In what ways does our system give offenders opportunities to rehabilitate themselves, like God learned to do?
A SUGGESTION FOR READING THIS BOOK
As a related tie-in, watch Woody Allen's 1989 movie Crimes and Misdemeanors that Dershowitz describes as "captur[ing] the frequent asymmetry between crime and punishment." It does a magnificent job raising questions about what does and doesn't constitute a crime and to whom must one be accountable at the end of the day.
The Spring 2002 issue of Lilith magazine contains an article entitled "Deconstructing Dena" that explores the freedoms accorded women in biblical society (in the time of Dina) as compared to the role of women in Greek and Roman society (as reflected in the commentaries).
The Red Tent, a novel-length midrash on the times and circumstances surrounding the story of Dina, gives a voice to Dina and all of the biblical characters at the time of the patriarchs.
To order Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law Warner Books
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