Judaism and the Foundations of American Law - Part 3

Within two years after the publication of Cahill’s The Gifts of the Jews, Professor Alan Dershowitz of Harvard Law School undertook yet another effort to advance a thesis that clearly had connections to what Max Dimont had initially articulated in his 1962 work. In his book, The Genesis of Justice, Professor Dershowitz presents his arguments for how Judaism, Torah and the narrative accounts in the Book of Genesis, in particular, provide the foundations for modern morality and law.

Rather than delve into the details of the “law books” of the Bible, Dershowitz explains that he chose the Book of Genesis as his focus because, “I believe that the broad narratives of justice and injustice are more enduring than the often narrow, time-bound, and sometimes derivative rules of the Bible.” (19). Later he further elaborates upon his justifications for the scope of his inquiry into the Biblical foundations for justice, when he states:

"The biblical narratives, especially in Genesis, are as fresh, as relevant, as provocative, and as difficult as they were in ancient times. They also provide context and give life to the rules that derive from them. The vignettes, short stories, and novellas that make up the early biblical narratives have few peers in the history of provocative texts on the human condition. As long as human beings ask questions about justice and injustice, they will continue to be interpreted and discussed." (20).

While his analysis stretches from the account of Adam and Eve’s first disobedience through the story of Joseph and his brothers’ acts of apparent injustice toward one another, a single example from Dershowitz will suffice to demonstrate his contribution to the advancement of Dimont’s thesis. In Genesis chapter 18, the story of Abraham’s defense on behalf of the inhabitants of Sodom and Gommorah is told, or as Professor Dershowitz succinctly entitles the account: “Abraham defends the guilty – and loses.”

Although he acknowledges the sin of the majority, Abraham appeals to God to spare the cities for the sake of the innocent, if indeed there are innocent within their gates. Abraham begins his defense on behalf of a hoped-for fifty but successively reduces the number of innocent on whose behalf he makes his plea until he rests his case for sparing the cities upon the existence of only 10 innocent. While proceeding to execute His judgment upon the guilty in the face of Abraham’s appeal, God does make a merciful provision for sparing the innocent within the family of Lot, although that mercy is not fully appropriated.

Dershowitz’s comments upon this account illustrate for us how both notions of substantive and procedural justice are expressed through Abraham’s encounter with God. He states:

"The text is clear as to why God decided to tell Abraham about His intentions in regard to Sodom and Gomorrah: because God had selected Abraham as His messenger to “instruct” his descendants “to keep the way of the Lord in order to do justice and righteousness.” (Genesis 18:19) In other words, God’s encounter was to be a lesson for Abraham in the ways of human justice and righteousness. An omniscient God is, of course, capable of distinguishing the guilty from the innocent. . . Humans, however, cannot simply discern who are guilty and who innocent. We need a process – a legal system – to distinguish the innocent from the guilty. Nor is this a simple task. Inevitably human beings will make mistakes. We will sometimes convict the innocent and acquit the guilty. That is in the nature of any human fact-finding process."

Professor Dershowitz continues:

"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 wrongly convicted. This is the approach ultimately accepted in [Torah], with its generally rigorous safeguards for those accused of wrongdoing.

"In addition to deciding on this basic preference, every system of justice must also quantify – at least implicitly. The Anglo-American system, for example, has proclaimed [in the oft quoted words of Sir William Blakestone] that “it is better that ten guilty persons escape than one innocent suffer.” That [Professor Dershowitz states] . . . sends an important message: Our preference for not convicting the innocent is a very strong one, but it is not absolute; [the American system] acknowledges that in order to convict large numbers of guilty, we will sometimes have to convict an innocent. We will try our best to prevent such an injustice, but we will not simply acquit everyone in order to avoid it. This is the way a mature and just system operates." (85-87).

Professor Dershowitz then concludes his comments on Genesis 18 with the following description of the application of justice in the face of human realities in which he notes:

"Although it appears from the language of the narrative that Abraham is teaching God a lesson about justice, it may well be that it is really God – the great pedagogue – who is teaching Abraham a lesson about the inherent limitations on human justice, so that Abraham could instruct his descendants to do justice in a mature and balanced fashion – rejecting both extremes of acquitting everyone about whose guilt there is any doubt and convicting everyone against whom there is any suspicion." (87).

Through his commentary on this chapter, as well as each of the other nine narratives addressed in his book, Professor Dershowitz substantially advances support for the thesis that the Jewish idea of justice taught in Torah is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallible state of humans. Thus, Torah teaches mercy in the midst of justice.

ABA Journal Blawg 100

Check out this list of the top 100 law blogs-- blawgs-- chosen by the ABA Journal and its readers. There are some great blogs on this list, but be careful: you might spend the next two weeks just trawling through the gems on this list.

Judaism and the Foundations of American Law - Part 2

Among the scholars to take up the task of cultivating Dimont's thesis was Thomas Cahill. In his popular history, The Gifts of the Jews, (published in 1998) Cahill contends that one of the gifts imparted to human civilization by the Jews was their concept of justice. It was, though, an idea of justice intertwined with mercy. Mercy is essential to the administration of justice in the realm of human experience because Torah not only conceded but also explicitly taught the finite and fallible state of humans.

For example, while lex talionis requires “an eye for and eye and a life for a life,” Torah prohibits the implementation of this principle of punishment upon the evidence of only one witness to an alleged intentional, “treacherous” killing of another human being. Rather, Torah requires the testimony of at least two witnesses. (see Numbers 35:30). One witness is limited in his perspective and may not have seen all the relevant aspects of the alleged murderous act even if he is assumed to be testifying truthfully. On the other hand, one witness could also be making a false claim against the accused. Thus, a minimum of two witnesses were required upon which to issue a capital sentence.

Some argue that lex talionis is not, in the first place, a Jewish concept but was rather a contribution from the ancient Babylonian civilization via the Code of Hammurabi. Even if this point of history is conceded for the sake of argument, Torah’s expression and guidance in the administration of lex talionis demonstrates a substantial tempering of its severity in application albeit not in its formulation.

While lex talionis would appear to be a fundamental expression of a just law, a fuller understanding of the idea of "justice" exhibited in the Torah requires an exploration of the relationship of "justice" and "mercy". Why is it that two of the most notorious murderers in Torah – Cain and Moses – were not punished in accordance with lex talionis? Is it possible that "justice" is not merely tempered by "mercy", but that mercy is itself an essential component, an integral ingredient, a fundamental dimension of justice?

Through my research for this course's development in Fontbonne ’s Dedicated Semester, I have become increasingly convinced that the single most important contribution to the understanding of "justice" that has been made by the Judaic tradition is the role of "mercy" in human efforts to work out justice in our relationships – whether those relationships be personal or within civil society.

Thus, justice, as it is taught in Torah, is both an affirmation of the dignity of every human being since all are created in the image of God, and an accommodation for the finitude and fallen state of humans. Torah teaches mercy in the midst of justice through its accounts of divine acts in response to human sin, for example, in the cases of Cain, Noah, and Lot, as well as in its provisions for both procedural and substantive criminal law in ancient Israel.

Thomas Cahill further supports this essential understanding of justice from the Jewish perspective when he states:

In the prescriptions of Jewish law we cannot but note a presumption that all people, even slaves, are human and that all human lives are sacred. The constant bias is in favor not of the powerful and their possessions but the of the powerless and their poverty; and there is even a frequent enjoinder to sympathy: “A sojourner you are not to oppress: you yourselves know (well) the feelings of the sojourner, for sojourners were you in the land of Egypt.” [Exodus 23:9] (Cahill, 154).

Cahill goes on to conclude that “this bias toward the underdog is unique not only in ancient law but in the whole history of law. However faint our sense of justice may be, insofar as it operates at all it is still a Jewish sense of justice.” (155). Cahill bases his characterization of Judaism’s foundational role in both understanding the demands of justice and the application of its standards upon his analysis that:

“The Jews were the first people to develop an integrated view of life and its obligations. Rather than imagining the demands of law and the demands of wisdom as discrete realms (as did the Sumerians, the Egyptians, and the Greeks), they imagined that all of life, having come from the Author of life, was to be governed by a single outlook. The material and the spiritual, the intellectual and the moral were one . . . . [L]ife is not a series of discrete experiences, influenced by diverse forces. We do not live in a fragmented universe, controlled by fickle and warring gods . . . Because God is One, life is a moral continuum – and reality makes sense.” (156-57).

So concludes Thomas Cahill’s strides toward demonstrating the validity of Max Dimont’s thesis.

Judaism and the Foundations of American Law - Part 1

When I first proposed the subject "Judaism and the Foundations of American Law" as a potential course for adoption within Fontbonne University’s Dedicated Semester to Judaism and its Cultures, one of my distinguished colleagues, Professor Jason Sommer strongly encouraged me to pursue it. In support, he cited Max Dimont’s seminal work, Jews, God and History that had been published in 1962. There, Professor Dimont made the following assertions:

"The statement that the American system of law is based upon Roman concepts has been made so often that we take it for granted, without examining the source from which Roman laws stem. The remarkable resemblances among Roman law, present-day American law, and Jewish jurisprudence in Biblical days is [sic] more than mere coincidence. The Jews devised, four centuries before Christ, a legal system based on the dignity of man and individual equality before the law, while Europe still had trial by ordeal as late as the fifteenth century.

"The rabbis viewed law as a vehicle for justice; laws without justice were regarded as immoral. Even though the Jews in those days had no jury system, the procedures for the indictment and trial of an accused person were similar to the procedures in American courts today. The accused was presumed to be innocent until proved guilty. He had a right to counsel and to a proper trial. He had a right to call witnesses, to confront his accusers, and to testify in his own behalf. He could not be compelled to testify against himself, and he could not be placed in double jeopardy. The accused individual was permitted to appeal, or have others appeal in his behalf, if new evidence should turn up." (Dimont, 82)

Upon these assertions, Dimont concluded that Judaism had played a significant role in providing foundations for American law. He did not, however, develop that thesis in his 1962 work beyond planting the seeds that are deposited throughout the passage I have just quoted. The task of tending and cultivating the thesis would be taken up by other scholars.

(This is the first of several installments from a lecture I recently presented at the Jewish Community Center of St. Louis. I intend to post successive parts from the lecture over the coming few weeks.)

Vipers' Tangle

If CS Lewis's Till We Have Faces is heart-rending, Francois Mauriac's Vipers' Tangle is gut-wrenching-- or maybe just a straight punch in the gut. It's brutally emotional, much more so than Till We Have Faces, but hopeful, though much less so than Lewis's retold myth.

Mauriac's story is in structured similarly to Till We Have Faces: Part One is, in effect, a confessional brief against the protagonist's wife and family, just as the opening two-thirds of TWHF is a brief-- a charge against the gods by Orual, Lewis's heroine. Likewise, both Lewis and Mauriac use part 2 of their stories to develop the themes of self-discovery. Till We Have Faces culminates with almost complete redemption and reconciliation, but Mauriac hides from the reader the moment of his protagonist's full surrender to the love of Christ, yet he points hopefully to it and hints beautifully at its means and motivations. In TWHF, what Orual has lost is restored. Mauriac's "hero," however, whose heart is the eponymous 'vipers' tangle,' has lost everything:

Those whom I should have loved are dead. Dead are those who might have loved me. As for the survivors, I no longer have the time, or the strength, to set out on a voyage towards them, to discover them. There is nothing in me, down to my voice, my gestures, my laugh, which does not belong to the monster whom I set up against the world, and to whom I gave my name.

This loss, however, leads him to glimpse the utter necessity of a power and a love outside himself:

One needed some strength, I said to myself. What kind of strength? Someone.

Yes, Someone in Whom we are all one, Who would be the guarantor of my victory over myself, in the eyes of my family; Someone Who would bear witness for me, Who would have relieved me of my foul burden, Who would have assumed it . . .

This is a rich, harsh, beautiful story. Sin is great. Grace abounds.