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Judaism is a religion of laws and of debate. In the article in this month's Journal titled "LDS and Judicial Perspectives on Stories from Jewish Tradition" ("Perspectives"), the authors discuss concepts of justice in stories from the collected works of Judaism: the Torah, or Pentateuch, codified oral laws, commentaries and interpretations of text through stories, or midrash. Alan Dershowitz, in The Genesis of Justice, takes just one text as his focus - the first of the Five Books of Moses, or Pentateuch - and discusses what he calls the beginnings of justice for western civilization.
Why is Genesis so central to the development of a concept of Justice? Dershowitz would argue it is because the Pentateuch, and Genesis as its first book, contains no concept of afterlife.
Accepting the concept of life after this life, later religious works are not forced to deal as directly with Justice as they are able to argue that injustice will be rectified in the
afterlife. And so it is in Genesis in particular that today's sense of Justice has its origins. Later midrash introduce the concept of afterlife, but the Pentateuch itself still serves as
a primer on Justice Here and Now. (Dershowitz ultimately admits "I don't know whether or not there is a hereafter - no one does." But, he coyly offers, "I must commend its
creator - divine or human - for solving the puzzle of how a just and intervening God can permit so much injustice in this world.")
Dershowitz looks first at ten stories from Genesis, and discusses how those stories fit into the development of Justice. Some of the themes he presents are similar to those presented in
"Perspectives." Story 1 in "Perspectives," for example, concerns the friction between enforcement of laws and compassion. Dershowitz discusses God's enforcement of
laws in the first two of his presented stories. The first, titled "God Threatens - and Backs Down," tells of God's warning to Adam and Eve not to eat of the fruit from the Tree
of Life. Dershowitz states: "It is quite remarkable that a holy book, which purports to be a guide to conduct, begins with a clear rule that is immediately disobeyed, and a specific
threat of punishment which is not imposed." The second, titled "Cain Murders - And Walks," is the story of the murder of Abel by his brother, Cain, and the subsequent
punishment of banishment. Dershowitz notes of this punishment: "But at least there was a chance of survival . . . . It was not capital punishment." And, in fact, "God
further softens his punishment by setting a sign on him, warning all that Cain is in God's witness protection program, and if anyone kills him, “vengeance shall be taken on him
sevenfold.'"
Dershowitz presents these stories as "injustices," not as the compassion suggested in Story 1 of "Perspectives." But, as Judge Kimball noted in
"Perspectives," the concept of compassion and mercy is a New Testament concept, and Genesis is an Old Testament book. Indeed, Dershowitz would argue, these two stories are not
about compassion at all, but about the beginnings of a system of justice, exploring injustice and learning from it, in order to develop a robust concept of Justice.
One of the major themes developed by Dershowitz throughout these ten stories, is the need to insert proportionality into the evolving concept of Justice. The first two stories, he
suggests, are certainly examples of punishment that is too lenient. In later stories he suggests God rides the pendulum swing to its opposite end. The third story, titled "God
Overreacts - And Floods the World," is the story of the great forty-day flood unleashed by God upon the world in a reaction to the evils of humankind. This, too, is a story of
disproportional justice.
Proportional justice in this world, however, is a conundrum; Dershowitz wrote about the human desire for it in his earlier work, Just Revenge. In that novel, a character seeks justice for the Nazi murderer of much of his family - never brought to justice by human tribunals. In Just Revenge, Dershowitz explores whether "revenge" can be accommodated within the term "justice" as a solution to disproportional justice. This is the Dershowitz focusing on Justice Here and Now, and eschewing the remedies of an afterlife.
A related concept to proportional justice, also discussed in depth by Dershowitz the Jewish scholar and criminal defense lawyer, is balanced justice. Story Four, titled "Abraham
Defends the Guilty - and Loses," is the story of the punishment of the cities Sodom and Gomorrah for the wickedness of their inhabitants. In this story, Abraham argues with God (not
unlike the four rabbis in "Perspectives" who count God's vote as equal to each of theirs; Dershowitz posits it is the story of Sodom and Gomorrah that initiates the
argumentative tradition of Judaism). God wants to kill all the people in the two wicked cities. Abraham argues that it would be wrong to kill the innocent along with the guilty. God then
agrees to save the cities if a certain number of innocent could be found. Abraham begins the bargaining over the number of innocent who must be found to save the guilty. As Dershowitz
puts it, "Abraham engages in a typical lawyer's argument. Having convinced his adversary to accept the principle, Abraham nudges Him down the slippery slope." The message
of this story, according to Dershowitz, is not that Abraham should be considered the father of lawyers (as well as of the chosen people), but that any system of law must struggle with
somehow balancing the innocent convicted with the guilty freed. (Thus, the concept of "balanced" justice.) Dershowitz writes: "In the end, every system of justice must
decide which is worse: convicting some innocents or acquitting some guilty. Tyrannical regimes always opt for the former: It is far better that many innocents be convicted than that any guilty be acquitted. Most just regimes tend to opt for the latter: It is far better that some guilty go free than that innocents be wrongfully convicted. This is the approach ultimately accepted in the Bible with its generally rigorous safeguards for the accused of wrongdoing." (An interesting question is where do we, today, fall in this spectrum of Dershowitz's? Where, for example, do efforts to overturn the Miranda warning, or increasing the emotional role of victims in sentencing, place us?)
Finally, Dershowitz presents a very basic question that perhaps should have been asked at the beginning. Before molding the clay of Justice with human hands, shouldn't we first tackle the
question of whether it is appropriate to do so at all? In this discussion of the evolution of Justice, can God's justice really be judged at all? Or, put another way, is Justice defined
by whatever God does, or do we have room at all for interpretive nuance? Perhaps Justice is whatever God does, however unjust it may appear to us. It is obvious that neither the Jewish
tradition of the stories presented in "Perspectives," nor Dershowitz himself believes this. In fact, Dershowitz warns that such an argument "is the first step on the road
to fundamentalism."
Nuance, interpretation and argument are concepts that cannot, in Jewish tradition, be torn from the law. And so is the genesis of the hermeneutic tradition we employ as lawyers in the
western world.
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