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Nearer, My God to Me

Tuesday, August 1, 2000

Alan M. Dershowitz

The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law

That the pursuit of perfect justice tends to produce its own injustice is a paradox of political life as pervasive as it is intractable. Is it "just" that any one of us may be killed at any moment by a random act of criminal violence? Of course not. Yet we realize that insulating ourselves from this possibility would require us to accept the greater injustices that accompany life in a police state. Or is it "just" that the state sometimes arrests and charges, and even occasionally tries and convicts, citizens for crimes they didn’t commit? Of course not. Yet we understand that holding the government to impossibly high standards of procedural purity would result in the greater injustice of allowing large numbers of the guilty to elude punishment.

However plain this truth, there have always been those whose zealous love of justice has led them to pursue it at all costs. Alan M. Dershowitz is perhaps the exemplary figure in the American manifestation of the trait, and we all have to live with the consequences of his calling. Every time evidence establishing a murderer’s guilt is excluded from trial due to the slightest of irregularities in how it was obtained by the police; every time an attorney raises unreasonable doubts in a jury’s mind in order to win an acquittal for his guilty client; every time a guilty man’s conviction is overturned on appeal because of (as Dershowitz himself puts it at one point in his new book) "unrelated matters" –– we all have to live with the consequences of his call to absolute moral exactitude.

Dershowitz’s crusade against prosecutorial imperfection has always been unrelenting. In his numerous books and endless talk show appearances, in his popular classes at Harvard University Law School, and in his ferocious defense of high-profile clients from Claus von Bülow to Mike Tyson and O.J. Simpson, he has proven himself the most powerful legal advocate of the libertarian left –– those true believers for whom securing the release of the guilty from prison, often on the basis of legalistic technicalities, is itself a mark of righteousness. As Dershowitz writes with some sanctimony, though it may be "distressing when the guilty go free," it is "a price we must be willing to pay for assuring that the innocent are only rarely convicted."

Aside from supporting the aclu in its crusade to rid the public sphere of any vestige of religious sentiment, Dershowitz and his ideological brethren usually have very little to say about spiritual matters, lacking as they do reverence for higher powers (in which many of them avowedly do not believe). To be sure, Dershowitz fancies himself something of an authority on contemporary American Judaism and has taken up the subject from time to time in his voluminous writings. But when it comes to his professional project, which one might characterize as obstructing justice in the name of justice, he has tended to limit himself to the alleged transgressions of temporal authorities. In this sense, then, The Genesis of Justice represents a change, or at least marks the moment at which the "chutzpah" Dershowitz has long proclaimed for himself has finally reached metaphysical proportions. For in his new book, Dershowitz mounts a challenge to the justice of none other than God Himself.

Now, to be fair, it must be said that Dershowitz denies at the outset of the book that he intends his interpretation of 10 stories from the Book of Genesis to be construed as an attack on the veracity of the scriptural text. (As has become typical among partisans who wish to appear nonpartisan, he claims to take no "position on the ‘truth’ " and to make "no claim of being ‘right.’ ") More remarkable still is his admirable capacity to convey his genuine love of the classic tales he examines from the first book of the Pentateuch.

And yet, to say that Dershowitz looks at the Bible with a critical eye would be a considerable understatement. In the first 50 pages of his book, he manages to accuse God of violating "human norms of fairness," promulgating the first sexual "double standard," being the first "misogynist" in history, paving the way for an "inequality that would endure for millennia," issuing commands that "defy reason" and "human nature," acting with indifference to whether actions are done "for good or for evil," and, last but not least, engaging in "genocide." Indeed, Dershowitz’s "favorite interpretation" of Scripture (of course, not the "right" or "true" one) is that "God Himself was still learning about justice and injustice" at the time of the Creation and the events described in the early chapters of the Old Testament. The clear implication is that contemporary Americans (or at least those who share Dershowitz’s own liberal convictions) are more morally developed than the God described in Genesis.

Dershowitz’s irreverence with regard to the divine is certainly not original to him. After all, we live at a time in which thoroughly secular histories of religion are commonplace and in which some (like the author Jack Miles) have even attempted to write "biographies" of God.

Moreover, the moral objections Dershowitz raises against the Biblical text are familiar ones. He even admits that he first encountered many of them while studying the Talmud in an Orthodox Jewish day school in the 1940s and ’50s.

Still, Dershowitz’s approach to the Bible is unusual in at least two respects. First, his interpretations are animated by an uncommon moral fervor. In the book’s amusing opening chapter, he tells us about how, even as a child, he refused to accept the traditional, edifying responses to the moral objections he learned in school. Although his teachers tried to keep him firmly within the faithful fold by walking him through the disputations contained within the ancient rabbinical commentaries, the young Dershowitz preferred to "ask impertinent questions that got me tossed out of class." It seems that the young moralist loved justice more than piety or tradition. And he has pursued the consummation of that love ever since, even as it has led him to leave the established teachings of his faith far behind, to find in the most sacred text of his religion little more than an account of how human beings originally suffered under the despotism of a holy tyrant who violated human "rights" and set "a terrible example for lawmakers that has, unfortunately, been followed throughout history." From the beginning, Dershowitz’s theological concerns have been inspired by the conviction that God should have been sophisticated enough from the time of the Creation to see the need to institute "an agreed-upon and enforceable code of conduct" exactly like the one found in modern America.

But Dershowitz’s method of Biblical criticism is noteworthy in another respect as well. Far from being a simple moralist, he is also, to the depths of his soul, a courtroom lawyer. And like many courtroom lawyers, he is motivated to a considerable extent by vanity –– by the desire to be admired and recognized for his considerable rhetorical prowess. He is driven, in other words, by a passion for public victory, regardless of how far he has to go to get it. It is thus little wonder to learn that the hero of The Genesis of Justice is the obscure Rabbi Levi Yitzchak, an eighteenth century Hasidic master Dershowitz twice praises with impish glee for having had the temerity to file "a religious lawsuit (a din Torah) against God for breaking His covenant with the Jewish people." The greater the stakes, the greater the potential thrill of success.

It is a powerful mixture: a love of perfect justice; a proficiency with logical argument; and an insatiable desire to prevail over one’s opponent. The result is a man who will do anything to win his case –– even if, as his colleague Johnnie Cochran showed with such skill in his notorious closing arguments in the O.J. Simpson trial, doing so requires appealing to the least laudable prejudices of the judge and jury.

In a trial of the Old Testament’s God conducted in the United States at the end of the twentieth century, there are many such prejudices to which Dershowitz can, and does, appeal. In fact, on many matters, the Hebrew Bible and modern Americans begin from conflicting premises. We are convinced, for example, that democracy is the best (nay, the only legitimate) form of government, while the Torah shows a decided preference for human patriarchy and divine authoritarianism. We believe in the existence of innate individual rights, while the God of Abraham, Isaac, and Jacob seems not to recognize or respect the inherent dignity of His creation (at least not consistently). We now hold it to be self-evident that men and women are fundamentally equal, while the Old Testament tells a different story, one in which the latter are usually made subservient to the former. And perhaps most fundamentally, we tend to prize autonomy of thought and action above all else, while the Bible teaches a very different lesson — namely, that a man’s righteousness is measured by the extent of his willingness to submit to spiritual authority.

Given these very different assumptions, it is little wonder that Dershowitz is able to make the 10 stories on which he focuses in his book appear to be ridiculous. After all, how could a just God flood the world, thereby killing every human being aside from Noah and his immediate family? According to what standard of justice was it appropriate for God to demand Abraham to sacrifice Isaac? And what moral principle made Abraham’s willingness to comply with the murderous command worthy of praise? From the standpoint of our common opinions about justice, these and the other examples Dershowitz adduces from throughout Genesis seem to be incidences of barbarism rather than models for moral emulation — the kind of actions that inspire us to impose economic sanctions, send "peacekeeping" troops, or hurl "smart bombs" when they are committed by governments instead of the Deity. But of course Dershowitz doesn’t just leave it at reminding us of the troubling details of the old, familiar stories. For each, he builds a powerful case against the actions (or inactions) of God, almost persuading us that He deserves to be convicted on the charge of conduct unbecoming the Creator of the Universe. Almost.

One need not be an orthodox Jew, Christian, or Muslim to see that Dershowitz’s treatment of the Bible is far from fair — that by using contemporary liberal notions of justice as a club with which to batter the text, he ends up doing little more than confirming his own unquestioned moral prejudices. Dershowitz begins by assuming he has nothing to learn from the Bible, and thus assures he will never truly be challenged to rethink his position — a position that is of course completely at odds with the view of the human and the divine contained in the Old Testament.

Any open-minded encounter with Genesis, by contrast, reveals that the Torah could only be thought of as a (failed) treatise of moral philosophy through an act of willful distortion. It would be far more accurate to say that the Bible presents us with an ethics in the widest sense of the term — an ethos, a comprehensive way of life for human beings in which justice and morality play an important part but can by no means be equated with the whole. It is the nonmoral or amoral dimensions of the text to which Dershowitz is blind and to which his method does considerable violence.

Take his handling of the story of the Fall. For Dershowitz, God’s prohibition against eating the fruit of the tree of the knowledge of good and evil must (like all of God’s actions) be evaluated by "human standards" of justice. Once we have done so, we can clearly see that God’s commandment "defies reason," since the quest for knowledge has turned out to be the "engine of human progress" and subsequent history has shown that it is "entirely natural" and even "pleasant" for individuals to seek knowledge. It is thus obvious to Dershowitz that "God’s first action as a lawgiver seems unfair." And what monster, he wonders, would punish someone for violating an unjust law? In this way, Dershowitz thinks he can win the acquittal of the human race for original sin.

The truth, of course, is that the story of the Fall (like that of the Tower of Babel, or the admonitions of St. Paul) teaches us something wholly at odds with the humanistic, rationalistic, and aggressively secular tradition to which Dershowitz belongs. What the Bible teaches is that knowledge is the source of human suffering, regardless of how "natural" it might be or how much "progress" it promises to grant us. Along with the pagan myths of Pandora and Prometheus, the Bible teaches that "he that increaseth knowledge increaseth sorrow" (Eccl. 1:18). It teaches that human beings have an innate need for obedience to a mysterious God who refuses to be judged by human standards of justice or hemmed in by a demand for the rational transparency of His actions and decrees. It teaches, in other words, that "the fear of the Lord is the beginning of wisdom" (Prov. 1:7; Prov. 9:10; Ps. 111:10; Job 28:28; Deut. 6:13).

For this teaching, Dershowitz has nothing but contempt — a contempt that comes bubbling to the surface of his commentary whenever he mentions the Book of Job, with its lesson that our happiness depends upon accepting without doubt or question the inscrutable ways of the Lord, even when the most heartbreaking acts of injustice befall us. Dershowitz either dismisses this teaching as "unthinking fundamentalism" or passes over it in silence. In fairness, humble obedience comes hard to most of us, as do the profound sacrifices of the intellect and ego, of our hopes for earthly pleasures and perfection, that the Bible demands. But recognizing our own inability or unwillingness to meet the challenge posed to us by Scripture is quite a different thing from refusing to see that challenge for what it is.

The stance toward the divine in The Genesis of Justice is adversarial through and through, and the truth is the God in its pages isn’t capable of putting up much of a fight. Judging from the laudatory quotations contributed to the dust jacket of the book by leading figures in the legal and religious communities on both sides of the political spectrum, many of our contemporaries apparently find nothing particularly objectionable in Dershowitz’s approach. Which is to say, for the class of moderns to which Dershowitz belongs and which harbors the conviction of its own omniscience, God is interesting mainly as a primitive, morally inept version of itself.