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“Shall not the Judge of the Earth Deal Justly?”: Accountability, Compassion, and Judicial Authority in the Biblical Story of Sodom and Gomorrah

Published online by Cambridge University Press:  24 April 2015

Timothy D. Lytton
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Extract

In his article, Unspeakable Ethics, Unnatural Law, Arthur Leff laments the death of God in jurisprudence. According to Leff, divine commands are the only source of law that is ultimately justifiable. “[T]he pronouncements of an omniscient, omnipotent, and infinitely good being are [by definition] always true and effectual,” he writes. “God's will is binding because it is His will that it be.” In the modern era, however, God's authority has been overthrown by our desire to decide for ourselves the standards of right and wrong. The absence of God, observes Leff, deprives us of a solid foundation for our legal system. Without instruction from above, laws are no more than human commands, based merely on human will: “Whenever we set out to find ‘the law,’ we are able to locate nothing more attractive, or more final, than ourselves.” Leff's recognition that behind the rule of law lies not the benevolence of divine guidance but the capriciousness of human will results in a jurisprudential despair that leads him to cry out ironically at the end of his essay, “God help us.”

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Articles
Information
Journal of Law and Religion , Volume 18 , Issue 1 , 2002 , pp. 31 - 55
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2002

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References

1. 1979 Duke L. J. 1229.

2. Id. at 1232.

3. Id. at 1229.

4. Id. at 1229.

5. Id. at 1232, 1249.

6. Muffs, Yochanan, Love & Joy: Law, Language and Religion in Ancient Israel 4–5 (Jewish Theological Seminary of Am. 1992)Google Scholar.

7. My use of the masculine pronoun in reference to God is for stylistic convenience only. I do not wish to suggest that Jewish tradition adheres to a masculine conception of divinity.

8. See Kugel, James, The Bible As It Was 17–23 (Belknap Press of Harv. U. Press 1997)Google Scholar.

9. See e.g. Greenberg, Moshe, Some Postulates of Biblical Criminal Law, in The Jewish Expression 19 (Coldin, Judah ed., Yale U. Press 1976)Google Scholar; Daube, David, Communal Responsibility, in Studies in Biblical Law 154 (Ktav Publg. House, Inc. 1969)Google Scholar; cf. Weiss, Meir, Some Problems of the Biblical “Doctrine of Retribution” (I), 31 Tarbiz 236, 250 (1962)Google Scholar (Hebrew) (arguing that Biblical texts do not reflect any unified account of justice).

10. See Sternberg, Meir, The Poetics of Biblical Narrative: Ideological Literature and the Drama of Reading 186–258 (Ind. U. Press 1985)Google Scholar.

11. This translation is taken from Tanakh: A New Translation of The Holy Scriptures According to the Traditional Hebrew Text (Jewish Publication Socy. 1985)Google Scholar [hereinafter “New JPS Translation”].

12. Genesis Rabbah 49:2, translated in The Midrash Rabbah: Genesis vol. 1, 421–422 (Freedman, H. & Simon, Maurice eds., Freedman, H. trans., Soncino Press 1983)Google Scholar [hereinafter Genesis Rabbah].

13. Dershowitz, Alan, The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law 87–92 (Warner Books 2000)Google Scholar.

14. This approach is also taken by Bruckner, James K., Implied Law in the Abraham Narrative: A Literary and Theological Analysis 128–129 (J. for the Study of the Old Testament Supp. Series 335, Sheffield Academic Press 2001)Google Scholar.

15. This translation follows the interpretation of the Rabbinic commentator Rashi (1040-1105) on verse 18:199. Torat Hayyim 216 (Mossad Harav Kook 1986)Google Scholar (author's translation).

16. For a lengthy discussion of this term, see Weinfeld, Moshe, Justice and Righteousness: The Expression and Its Meaning, in Social Justice in Ancient Israel and in the Near East 25 (Fortress Press 1995)Google Scholar.

17. Sarna, Nahum, The JPS Torah Commentary, Genesis 132 (Jewish Publication Socy. 1989)Google Scholar.

18. Blenkinsopp, Joseph, The Judge of All the Earth: Theodicy in the Midrash on Genesis 18:22-33, 41 J. of Jewish Stud. 1, 2 (1990)CrossRefGoogle Scholar; Von Rad, Gerhard, Old Testament Theology 207 (Harper & Brothers 1962)Google Scholar; Bruckner, supra n. 14, at 143. For another well known example, see Genesis 4:10, where the verbal form of tza'akah is used to describe how the blood of Abel, murdered by his brother Cain, “cries out” (tzoakim) to God from the earth. Supra n. 11 (New JPS Translation).

19. Weinfeld, supra n. 16, at 218. The wordplay between tza'akah and tzedakah also occurs in Isaiah 5:7: “For the vineyard of the LORD of Hosts is the House of Israel, and the seedlings he lovingly tended are the men of Judah. And he hoped for justice, but behold, injustice; for equity [(l'tzedakah)], but behold, iniquity [(tza'akah)]!” Supra n. 11 (New JPS Translation).

20. I am grateful to Tzvi Novick for pointing out these two distinct ways of understanding the wordplay between tza'akah and tzedakah.

21. Babylonian Talmud, Sanhedrin 109b (Soncino, ed., 1935)Google Scholar (emphasis added) (footnote omitted).

22. See Rashi on verse 18:21, Torat Hayyim, supra n. 15, at 217.

23. See Rashi on verse 18:22 (S. Buber ed.), id. at 218.

24. Midrash Tanchuma, Parshat Vayera, para. 8, (author's translation).

25. Modern commentators have remarked on the explicitly juridical categories of “innocent” (tzadik) and “guilty” (rasha) in Abraham's plea. See e.g. The Anchor Bible: Genesis 134 (Speiser, E.A., Intro. & ed., Doubleday & Co., Inc. 1964)Google Scholar; Bruckner, supra n. 14, at 96-99. Other uses of the terms tzadik and rasha in this juridical sense occur in Exod 23:7: “Keep far from a false charge; do not bring death on those who are innocent and in the right [v'naki v'tzadik], for I will not acquit the wrongdoer [rasha];” Deut 25:1: “When there is a dispute between men and they go to law, and a decision is rendered declaring the one in the right [v'hitzdiku et hatzadik] and the other in the wrong [v'hirshi'u et harasha];” 1 Kings 8:31-32:

Whenever one man commits an offense against another, and the latter utters an imprecation to bring a curse upon him, and comes with his imprecation before Your altar in this House, oh, hear in heaven and take action to judge Your servants, condemning him who is in the wrong [l'harshia rasha] and bringing down the punishment of his conduct on his head, vindicating him who is in the right [u'l'hatzdik tzadik] by rewarding him according to his righteousness;

Isaiah 29:20-21: “And those diligent for evil shall be wiped out, who cause men to lose their lawsuits, laying a snare for the arbiter at the gate, and wronging by falsehood him who was in the right [tzadik]”; Prov 17:15: “To acquit the guilty [rasha] and convict the innocent [tzadik]—both are an abomination to the LORD.” Supra n. 11 (New JPS Translation).

26. For a similar reading, see Bruckner, supra n. 14, at 134.

27. Ginzburg, Louis, The Legends of the Jews. Vol. 1: From the Creation to Jacob 247 (Szold, Henrietta trans., Jewish Publication Socy. of Am. 1909)Google Scholar; see BT, Sanhedrin, 109b, supra n. 21.

28. See Gen 6:1-8:22 (New JPS Translation).

29. Gen 7:11 (New JPS Translation).

30. On the second day of creation that God separated the upper from the lower waters. See Gen 1:6-8 (New JPS Translation).

31. See Dershowitz, supra n. 13, at 84. For a fuller discussion of the reasoning behind Abraham's challenge, see Zvi, Ehud Ben, The Dialogue Between Abraham and YHWH in Gen. 18.23-32: A Historical-Critical Analysis, 53 J. for the Study of the Old Testament 27 (1992)CrossRefGoogle Scholar.

32. It is also worth noting Abraham's personal interest, as father of the Jewish nation, in the proposition that the righteousness of a small group can redeem a sinful world.

33. See Paul, Shalom, Studies in the Book of the Covenant in the Light of Cuneiform and Biblical Law 3–10 (E.J. Brill 1970)Google Scholar.

34. Lundbom, Jack, Parataxis, Rhetorical Structure, and the Dialogue over Sodom in Genesis 18, in The World of Genesis: Persons, Places, Perspectives 136, 143 (Davies, Philip & Clines, David eds., Sheffield Academic Press 1998)Google Scholar. Meir Weiss's thoughtful interpretation of the story supports this view by implying that there is no lack of discrimination between guilty and innocent in God's judgment of Sodom. Weiss points out that God judges the city as a whole according to whether it possesses a requisite number of righteous individuals. Since it does not, He destroys it. By contrast, in carrying out the destruction of the city, God saves all of the righteous individuals in it—Lot, his wife, and his two daughters—punishing only the wicked. Where individuals are concerned, God carefully discriminates between the innocent and the guilty. Thus, any sense that God's judgment is indiscriminate results from a failure to appreciate the difference between judging the city as a whole and the individuals within it. See Weiss, supra n. 9, at 250-251.

35. Dershowitz, supra n. 13, at 84.

36. The translation of mishpat as judgment in this verse is supported by Weinfeld, supra n. 16, at 33-37; Driver, S.R., The Book of Genesis 197 (5th ed., Methuen & Co. 1906)Google Scholar; Rodd, C.A., Shall Not the Judge of All the Earth Do What Is Just? (Gen 18:25), 83 Expository Times 137, 137 (1972)CrossRefGoogle Scholar; Speiser, supra n. 25, at 134. Blenkinsopp translates it as “right judgment”, supra n. 18, at 122. The Hebrew word shofet can also mean “ruler” or “leader.” See Rozenberg, Martin, The ŠŌfTĪM in the Bible, 12 Eretz-Israel 77 (1975)Google Scholar. We may speculate that, for Biblical authors, the dual meaning of this word indicates that judiciousness is a defining characteristic of leadership.

37. See Hardimon, Michael, Role Obligations, 91 J. Phil. 333, 333–364 (1994)CrossRefGoogle Scholar.

38. Ben Zvi suggests that acting injudiciously would be inconsistent with divine character, “the way of the Lord” mentioned in verse 19. Ben Zvi, supra n. 31, at 39. See Balentine, Samuel, Prayers for Justice in the Old Testament: Theodicy and Theology, 51 Catholic Biblical Q. 597, 609, 611 (1989)Google Scholar.

39. Genesis Rabbah, 49:9, supra n. 12, at 428 (footnotes omitted).

40. Genesis Rabbah, 49:9, supra n. 12, at 429 (footnote omitted).

41. Psalms 86:8, 10 (New JPS Translation).

42. Lundbom, supra n. 34, at 140-141.

43. Martin, William, What is a Lawyer, 29 Ark. Lawyer 15 (1995)Google Scholar. For a similar suggestion that God and Abraham are negotiating, see Visotzky, Burton, The Genesis of Justice 68–73 (Crown 1996)Google Scholar.

44. See Westerman, Claus, Genesis 12–36, 291–292 (Augsburg Publg. House 1985)Google Scholar; Skinner, John, A Critical and Exegetical Commentary on Genesis 305 (T. & T. Clark 1930)Google Scholar; Weiss, supra n. 9, at 251.

45. Genesis Rabbah 49:8, supra n. 12, at 426 (footnote & emphasis omitted). In Exod 24:14 the verb yigash is used to denote coming forward to demand judgment: “To the elders he had said, ‘Wait here for us until we return to you. You have Aaron and Hur with you; let anyone who has a legal matter approach [yigash] them.’” Supra n. 11 (New JPS Translation). For a comparison of Abraham's rhetoric with prayer, see Balentine, supra n. 38, at 605, 616.

46. Targum Onkelos, Genesis 18:23, in Torat Hayyim, supra n. 15, at 218. The question in verse 24 could similarly be read: “In anger will you sweep away and not forgive the place on account of the fifty righteous who are in it?”

47. Genesis Rabbah 49:8, supra n. 12, at 427-428.

48. Spiegel, Shalom, Amos versus Amaziah: Address at the Theological Seminary of America Convocation on Law as a Moral Force, Saturday, September 14, 1957 at 56 (Herbert H. Lehman Inst. of Ethics 1957)Google Scholar.

49. Genesis Rabbah 49:12, supra n. 12, at 432.

50. Genesis Rabbah 49:14, supra n. 12, at 432-433.

51. Id.

52. Kimhi, David, Commentary on Genesis 18:16, in Torat HayyimGoogle Scholar.

53. Midrash Tanchuma (Std. ed.), Parshat Vayera, para. 10, supra n. 15, at 214 (author's translation). Cited in Blenkinsopp, supra n. 18, at 6-7.

54. The Rabbis' audacity in attributing such a statement to God is compounded by the fact that the quoted scriptural verse from the book of Job is clearly intended to apply not to God but to a representative “impious man.”

55. Genesis Rabbah 49:9, supra n. 12, at 429-430.

56. Mishna Avot 2:4, in The Mishna: Seder Nezikin, with Commentary by Hanoch Albeck (Hebrew) (Bialik Institute 1988)Google Scholar.

57. Gen 18:1 (New JPS Translation).

58. See Gen 17:23-27 (New JPS Translation).

59. Rashi on Gen 18:1, in Torat Hayyim, supra n. 15, at 204.

60. Genesis Rabbah, 49:4, supra n. 12, at 423-424.

61. See Gen 19:1 (“The two angels arrived in Sodom in the evening, as Lot was sitting in the gate of Sodom.”) (New JPS Translation).

62. Gen 19:4-9 (New JPS Translation).

63. Cf. Alter, Robert, Genesis: Translation and Commentary 86 (W.W. Norton & Co. 1996)Google Scholar (translating this phrase: “‘This person came as a sojourner and he sets himself up to judge!”’); Bruckner, supra n. 14, at 135 (“This fellow came here as an alien, and he would play the judge.”).

64. Perhaps the Sodomites' rejection of judgment accounts for God's failure to involve them directly in their trial, instead choosing Abraham to represent them. For further discussion of this aspect of the story, see infra n. 70.

65. See supra nn. 21 & 27 and accompanying text.

66. Leff, supra n. 1, at 1229.

67. For works in moral theory that focus on virtues rather than foundational principles, see e.g. Williams, Bernard, Moral Luck: Philosophical Papers 1973-1980 at x (Cambridge U. Press 1981)CrossRefGoogle Scholar (morality should be “seen as something whose real existence must consist in personal experience and social institutions, not in sets of propositions.”); Nussbaum, Martha, Non-Relative Virtues: An Aristotelian Approach, in The Quality of Life 242 (Nussbaum, Martha & Sen, Amartya eds., Clarendon Press 1993)CrossRefGoogle Scholar (discussing the turn toward virtue ethics based on “dissatisfaction with ethical theories that are remote from concrete human experience.”); MacIntyre, Alasdair, After Virtue: A Study in Moral Theory (U. Notre Dame Press 1981)Google Scholar (offering a general critique of modern moral theory's quest for foundational principles and proposing a turn toward moral and political discourse based on virtue).

68. See Gilligan, Carol, In a Different Voice: Psychological Theory and Women's Development 32 (Harv. U. Press 1982)Google Scholar.

69. See Kempin, Frederick G. Jr., Historical Introduction to Anglo-American Law 20, 26 (3d ed., West Publg. Co. 1990)Google Scholar.

70. I am grateful to Beth Berkowitz for pointing this out to me.

71. Perhaps the people of Sodom never appear before God because they are a society that rejects judgment. Or perhaps God maintains His distance in order to magnify his power, just as Black robes and courtroom architecture create personal and physical distance that enhances the projection of judicial power.

72. Cover, Robert, Violence and the Word, in Narrative, Violence, and the Law: The Essays of Robert Cover 203 (Minow, Martha, Ryan, Michael, & Sarat, Austin eds., U. Mich. Press 1992)Google Scholar.

73. See e.g. Plato, , Crito, in The Trial and Death of Socrates 43, 50a–54d (Grube, G.M.A. trans., Hackett Publg. Co., Inc. 1975)Google Scholar (portraying a dialogue between Socrates and the laws of Athens); Bracton, Lord, On the Laws and Customs of England 21 (Thorne, Samuel E. trans., Belknap Press of Harv. U. Press 1968)Google Scholar (describing how legal decisions result from dialogue among advocates and judges in court); Gray, John Chipman, The Nature and Sources of the Law 100–101 (2d ed., Macmillan 1948)Google Scholar (asserting that judges decide cases based on principle); Dworkin, Ronald, Law's Empire 225 (Belknap Press of Harv. U. Press 1986)Google Scholar (analyzing the principled nature of adjudication); Weinstein, Jack B., Individual Justice in Mass Tort Litigation 89–107 (Nw. U. Press 1995)Google Scholar (discussing how judges can and should respond personally to the legal claims of parties in mass tort litigation).

74. Stern, David, Midrash and Theory: Ancient Jewish Exegesis and Contemporary Literary Studies 31 (Nw. U. Press 1996)Google Scholar.

75. Hart, H.L.A., The Concept of Law 89 (2d ed., Clarendon Press 1994)Google Scholar.

76. Stern, supra n. 74, at 15-38.

77. See Sternberg, supra n. 10, at 441-445, 505; Bruckner, supra n. 14, at 152.