Commentary Magazine


The Genesis of Justice by Alan M. Dershowitz

The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law
by Alan M. Dershowitz
Warner. 260 pp. $25.95

Alan Dershowitz, a professor of law at Harvard, is best known for defending a who’s who of famous people in hot water, from Leona Helmsley to O.J. Simpson. But he is also a passionate participant in the debate over Jewish identity and the future of Judaism. In two much-discussed books, Chutzpah (1991) and The Vanishing American Jew (1997), Dershowitz has argued for an eclectic, big-tent form of Judaism, one in which secular Jews like himself are esteemed no less than their “God-centered” brethren, and in which the ritually unobservant are as comfortable as the “rule-bound” and “ritual-driven.”

In calling for the creation of this “new Jewish civilization,” Dershowitz has not suggested that Jews simply discard their religious past. To the contrary, he believes that Jews must continue to look to their “old books” for guidance. They should do so, however, not in the manner of the rabbis but rather by giving the ancient texts “new meanings, contemporary interpretations, current relevance.” In The Genesis of Justice, Dershowitz tries to make good on this idea, offering his own up-to-date view of the central events in perhaps the best-known Jewish book—Genesis—and thus providing a glimpse of what a Judaism refashioned on his terms might look like.

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According to Dershowitz, the stories in Genesis form a “narrative prelude to the law,” dramatizing episodes of injustice in order to demonstrate the universal need for “formalized legal systems.” In the beginning, as Dershowitz would have it, God’s rule is arbitrary and inconsistent. Thus, He tells Adam and Eve not to eat from the Tree of Knowledge—a command that “lacks apparent reason”—and threatens that if they do so, they “must die, yes die.” Yet, when Adam and Eve disobey, God backs down and imposes a lighter sentence.

This softness on the first crime, Dershowitz suggests, may have encouraged Cain to slay his brother Abel. Even so, however, God shows no evidence of having learned His lesson, and allows Cain to escape serious punishment. When this laxity contributes in turn to the lawlessness of Noah’s generation, God overreacts and, like a weak ruler who cannot bear the consequences of his weakness, unjustly floods the entire world. It is only afterward, Dershowitz avers, that God understands the need to issue a basic legal code—the so-called Noahide laws—to put an end to the brutish state of nature produced by His misrule and the evil impulses of human beings.

For Dershowitz, the events that follow in Genesis—the binding of Isaac, the rape of Dina, the betrayal of Joseph—illustrate still other problems of justice. More importantly, though, they point to a series of crucial, if tentative, shifts in Jewish legal thinking: from excessive punishments to more proportionate ones, from collective to individual responsibility, from ad-hoc rules and rulings to codified laws and legal processes, and finally from hukim (laws that require no justification) to mishpatim (laws based on reason and experience).

This last development is the most significant to Dershowitz, who sees Abraham as its exemplar for engaging God in “rational discourse” over the fate of Sodom and Gomorrah. The point of the episode, Dershowitz believes, is that Jews have a strong responsibility “to define justice in human terms,” the abdication of which represents “the first step on the road to fundamentalism.” They must not, in short, accept a God who refuses to answer to reason.

Needless to say, the less disputatious Abraham, the one who does not hesitate to obey God’s unfathomable command to sacrifice his own son as a burnt offering, fares less well in Dershowitz’s account. If the Abraham of Sodom and Gomorrah is a hero, this one is a coward, who commits a sin by “acceding to an immoral command out of fear.” Indeed, by Dershowitz’s lights, the autocratic, “bullying” God who issues this command can and should be rejected. “God speaks in different voices over time,” he observes, and Jews may decide for themselves when they are obliged to heed Him.

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That an avowed secularist like Alan Dershowitz would simply choose one divine “voice” over another, or one aspect of Abraham over its seeming opposite, is unsurprising in itself. What makes it noteworthy in this instance is that Dershowitz does go out of his way to acknowledge a very different approach to the seeming inconsistencies of Genesis. As he correctly notes in his introduction, traditional commentators, too, have struggled with the book’s conflicting messages. But because these commentators assume “the divine nature of the text,” they devote themselves to reconciling its varied strands, invoking the classical maxim that “there are seventy faces to the Torah.” Indeed, Dershowitz concludes that any other approach—and especially the modern effort to assign different authors to the parts of Genesis—is simply a cop-out, rendering the text “less interesting.”

It is unfortunate that Dershowitz himself did not take this lesson to heart. For him, the traditional idea that the Torah has many “faces” is not a humble admission that we can never be confident of possessing the truth, and must therefore try to appreciate every part of God’s revelation; rather, it is a dogmatic assertion that there is no such truth, and that whole parts of the Torah may be dismissed at will. The result is an interpretation of Genesis that, even for secularists, must be disappointing for its conventionality.

To take the most obvious example, Dershowitz’s Abraham is utterly devoid of the tensions and complexities that draw us to the biblical Abraham. His Abraham is all chutzpah, no reverence, all reason, no faith, all justice, no love. Worse perhaps, while offering plenty of resistance to God, this Abraham offers no resistance to Dershowitz; he is simply a forerunner, if an imperfect one, of the modern liberal sensibility. Peering into the profundity of Genesis, Dershowitz finds—mirabile dictu—a version of himself.

When he fails to find such a reflection, his tone, predictably, becomes one of condescension. In discussing the stories of Eve, Tamar, and Dina, for instance, he declares the Bible guilty of the grave sin of “misogyny.” Even God Himself, it turns out, stands to benefit from Dershowitz’s moralizing. In His exchange with Abraham over Sodom and Gomorrah, God, to Dershowitz’s relief, “learns” that “might alone does not make right,” that “it is unjust to sweep the innocent along with the guilty,” and that “the essence of justice is striking the right balance”—banalities seemingly unknown to Him previously.

It is perhaps asking too much to think that a close reading of Genesis would have prompted Alan Dershowitz to set aside modern liberal and feminist orthodoxy in order to consider the Jewish tradition’s view of the relationship between men and women, or that it would have shaken his self-satisfaction long enough to prompt thoughts of what he might learn from Abraham’s trust in God, Whose actions in the Bible suggest that human reason alone—Dershowitz’s god—is a far from sufficient guide. Without such serious reflection, however, it is hard to see why Genesis is worth bothering with in the first place.

After all, if one is interested in the general advantages of the rule of law, there are certainly better books to read. The point of Genesis is rather to explain the need for God’s Law, the revelation of which is the main event of the next great book of the Bible. But somehow one doubts that this central and defining aspect of the Jewish past can be reconciled so easily with the pieties of Dershowitz’s “new Jewish civilization.”

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