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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 Author(s): Timothy D. Lytton Reviewed work(s): Source: Journal of Law and Religion, Vol. 18, No. 1 (2002 - 2003), pp. 31-55 Published by: Journal of Law and Religion, Inc. Stable URL: http://www.jstor.org/stable/1051493 . Accessed: 14/02/2012 16:29
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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 D. Timothy Lyttont
I. INTRODUCTION

In his article, UnspeakableEthics, UnnaturalLaw, Arthur Leff lamentsthe deathof God in jurisprudence.'Accordingto Leff, divine commands are the only source of law that is ultimatelyjustifiable. of "[T]he pronouncements an omniscient, omnipotent,and infinitely are [by definition] always true and effectual,"he writes. good being "God'swill is bindingbecauseit is His will thatit be."2 In the moder era, however, God's authorityhas been overthrownby our desire to decide for ourselvesthe standards right and wrong.3 The absence of of observes Leff, deprives us of a solid foundationfor our legal God, from above, laws are no more than human system. Withoutinstruction we commands,based merely on humanwill: "Whenever set out to find 'the law,' we are able to locate nothingmore attractive,or more final, than ourselves."4Leffs recognitionthatbehindthe rule of law lies not the benevolenceof divine guidancebut the capriciousness humanwill of thatleads him to cry out ironically at resultsin a jurisprudential despair the end of his essay, "Godhelp us."' Leffs diagnosisof our current rests on predicament jurisprudential an assumption that divine authority incompatible is with free will. The
f Professor,AlbanyLaw School. B.A. 1987, J.D. 1991, Yale University. I wish to thank Rachel Anisfeld, Beth Berkowitz, the following colleagues for their help and encouragement: Peter Berkowitz, Theresa Colbert, Kenneth Dauber, Bob Emery, George Fletcher, Daniel Grossberg,Joel Linsider,MarthaMinow, Tzvi Novick, David Rosenn, Don Seeman, Aharon at Shemesh, Rodney Smith, PatrickWilkinson,participants the Abany Law School Faculty at WorkshopSeries, and participants the Universityat Albany Jewish Studies Lunch & Learn Series. I received generous supportfor this project from an Albany Law School Summer Grant.I welcomecomments.Pleasesendthemto <tlytt(aimail.als.edu>. Research 1. 1979 DukeL.J. 1229. 2. Id. at 1232. 3. Id. at 1229.
4. Id. at 1229.

5. Id. at 1232, 1249.

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tension between divine authorityand free will, he asserts, leads us inevitablyto a rejectionof God, which leaves us withoutany ultimate source of justification for legal authority. This rejection of God, however, stems not from philosophicalmaturity,from our recognition and acceptanceof free will, as Leff implies, but ratherfrom a lack of is theologicalimagination.The deathof God in jurisprudence due more of to the lifeless God implicitin modem legal theorythanto the triumph humanautonomyover divine authority. For Leff, and for many other modem legal theorists,God is merely a conceptualplaceholder,the name given to the notion of omniscientand omnipotentauthority. The idea. to modemmindhas a tendency reduceGod to an abstract contrast, ancient Biblical texts portray God as a person.6 By Throughoutthese texts, the personalityof God is revealed in His7 interactionswith human beings and in His dominion over human history,manifestin such events as the creationof the world, the great flood, the exodus from Egypt,the rise and fall of the Davidic dynasty, and the exile of the Jews. Often in these texts, God appearsnot as a remote ruler issuing unchallengeabledecrees, but as a sovereign engagedin dialoguewith His subjects. of In this Essay,I arguethatthe Biblicalportrayal God as a person, in particular, a judge, offers an attractivemodel for human as and, judicial authority.I examineGenesis 18:16-32,the storyof Abraham's of along questioning God'sjudgmentconcerningSodomand Gomorrah, to with Rabbiniccommentaries.In contrast the remoteandauthoritarian God of moder jurisprudential analysis, the God who speaks with that in Abraham these texts offers a model of legal authority is engaged and responsive. Using God as a model, this Biblical passage and the that accompanyit present accountabilityand Rabbinic commentaries ratherthan wisdom or power, as the preeminent judicial compassion, of virtuesandthe foundation judicialauthority. God as a person,bringingHim down to earth(as it By portraying that God's actions can serve as a the Bible helps us appreciate were), own. In contrastto the conceptualanalysis of God as model for our omnipotentand omniscient,which sets Him up as a foil for human of the authority, literary portrayal God as a personhighlightsthe ways in with which we can be like Him. God's behaviorduringHis encounter Abraham in Genesis 18:16-32 models judicial virtues that we can
6. Yochanan Muffs, Love & Joy: Law, Language and Religion in Ancient Israel 4-5 (Jewish Theological Seminary of Am. 1992). 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.

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emulate-virtues that lend legitimacy to human power. I rely heavily on Rabbinic commentary in my interpretationof the Bible for two reasons. First, the Rabbis have a tendency to read many Biblical passages, and Genesis 18:16-32 is a prime example, as jurisprudentialtexts. The Rabbinic role-a combination of exegete and judge-may account for this inclination. Second, Rabbinic exegesis combines a commitment to the Biblical text as sacred with an appreciation for the creative possibilities of interpretation. The Rabbis believed that the Bible is, on the one hand, a divinely inspired text and, on the other hand, a fundamentally cryptic document, the truth of which can be apprehended only by means of interpretation.8 As we shall see, these two assumptions generate not only insightful interpretations but also methodological tools that are especially relevant to jurisprudence. This Essay does not purport to offer a comprehensive account of the Biblical concept of judicial authority. While many scholars have attempted to identify general principles of Biblical law,9 I wish to avoid making any such broad claims on the basis of just one passage. My aim is to show how reading the Bible can illuminate contemporary jurisprudential concerns about the nature of legal authority. Nor does this Essay attempt to satisfy Leffs demand for an unchallengeable justification of judicial authority. At best, it offers a remedy for our jurisprudential despair by pointing the way towards a conception of judicial power that is worthy of our respect. My discussion proceeds in two stages. In Part II, I begin with a close reading of Genesis 18:16-32 that highlights several difficulties raised by the text. In reading the Bible, one constantly encounters ambiguities, or "gaps," in the text that demand interpretation.10 In attempting to address such ambiguities in the Sodom and Gomorrah story, one discovers its most striking jurisprudentialthemes concerning the process of judicial decision making and the grounds of judicial authority. In Part III, I discuss some general implications of my reading-both its substance and its methodology-for contemporary
jurisprudence.

Expression 19 (Judah Goldin ed., Yale U. Press 1976); David Daube, Communal Responsibility, in Studies in Biblical Law 154 (Ktav Publg. House, Inc. 1969); cf. Meir Weiss, Some Problems of the Biblical "Doctrine of Retribution" (I), 31 Tarbiz 236, 250 (1962) (Hebrew) (arguing that Biblical texts do not reflect any unified account ofjustice). Drama of Reading 186-258 (Ind. U. Press 1985).

Some Postulatesof Biblical CriminalLaw, in The Jewish 9. See e.g. Moshe Greenberg,

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

The Poetics of Biblical Narrative:IdeologicalLiteratureand the 10. See Meir Sternberg,

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Chapter 18 opens with the visit of three men to Abraham. He welcomes them with great hospitality, serving a generous meal prepared by his wife Sarah and a servant boy. At the end of the visit, one of the men, most likely a messenger from God, announces that the postmenopausal Sarah will bear a son by the one-hundred year-old Abraham. Following this, our story begins:11 16The men set out from there and looked down toward Sodom, Abrahamwalking with them to see them off. 17Now the LORD had said, 'Shall I hide from Abraham what I am about to do, 18 since Abrahamis to become a great and populous nation and all the nations of the earth are to bless themselves by him? 19'ForI have singled him out, that he may instruct his children and his posterity to keep the way of the LORD by doing what is just and right, in orderthat the LORD may bring about for Abrahamwhat He has promised him.' 20Thenthe LORD said, 'The outrage of Sodom and Gomorrahis so great, and their sin is so grave! 21.1 will go down to see whetherthey have acted altogetheraccording to the outcrythathas reachedMe; if not, I will take note.' 22 The men went on from there to Sodom, while Abraham remainedstandingbefore the Lord. 23 Abrahamcame forwardand 'Will You sweep away the innocent along with the guilty? said, 24What if there should be fifty innocent within the city; will You then wipe out the place and not forgive it for the sake of the innocent fifty who are in it? 25Farbe it from You to do such a thing, to bring deathupon the innocentas well as the guilty, so that innocent and guilty fare alike. Far be it from You! Shall not the Judge of all the earthdealjustly?' 26Andthe LORD answered, 'If I find within the city of Sodom fifty innocent ones, I will forgive the whole place for their sake.' 27Abraham spoke up saying, 'Here I venture to speak to my Lord, I who am but dust and ashes: 28 What if the fifty innocent should lack five? Will You destroy the whole city for want of the five?' And He answered, 'I will not destroy if I find forty-five there.' 29But he spoke to Him again, and said, 'What if forty should be found there?' And He answered, 'I will not do it, for the sake of the forty.' 30And he said, 'Let not my Lordbe angryif I go on: What if thirtyshould be found there?' And He answered, 'I will not do it if I find thirty there.' 31 And he said, 'I ventureagain to speak to my Lord:What
11. This translation is taken from Tanakh: A New Translation of The Holy Scriptures According to the Traditional Hebrew Text (Jewish Publication Socy. 1985) [hereinafter "New JPS Translation"].

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NOT THEJUDGE OF THEEARTHDEALJUSTLY? SHALL if twenty should be found there?' And He answered, 'I will not destroy, for the sake of the twenty.' 32Andhe said, 'Let not my Lord be angry if I speak but this last time: What if ten should be found there?' And He answered, 'I will not destroy, for the sake of the ten.'

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33When the LORD had finished speaking to Abraham, He returnedto his place. departed;and Abraham Let us begin our analysis with an ambiguity highlighted by verse 17: Why does God wish to reveal what He is about to do? One traditional answer is that God wishes to obtain Abraham's advice.12 Unfortunately, this interpretation produces a host of theological problems: How could God not know what He was going to do? Is God indecisive or ignorant of the future? Besides, the verse implies that God already knows what He is "aboutto do." Another possibility is that God is using the judgment of Sodom and Gomorrah as an opportunityto teach Abraham. Harvard Law Professor Alan Dershowitz has recently suggested that God wishes to instruct Abraham in the Socratic style of the contemporary law school classroom.13 According to Dershowitz, God aims to teach Abraham the principle of criminal procedure that it is better to acquit many guilty people than to convict ten innocent ones. While theologically more plausible, this interpretationreduces what would otherwise be a dramatic confrontation over a matter of life and death to a pedantic exercise, the conclusion of which is established from the start. Dershowitz's reading robs the story of the very tension that makes it such a compelling narrativein the first place. Instead, I would like to suggest that God wishes to reveal the process of divine decision making, and in doing so, God seeks to model judicial behavior for Abraham. God does not pronounce a verdict against Sodom and Gomorrah;rather,He exposes the process by which He regularly passes judgment in such cases, so that Abraham may in turn instruct "his children and his posterity" in this "way of the LORD."14 In verses 20-21, God does not declare a decision; He announces only His intention to investigate the cries reaching Him from
12. Genesis Rabbah 49:2, translated in The Midrash Rabbah: Genesis vol. 1, 421-422 (H.

& Freedman MauriceSimoneds., H. Freedman Genesis trans.,SoncinoPress 1983) [hereinafter


Rabbah]. 13. Alan Dershowitz, The Genesis of Justice: Ten Stories of Biblical Injustice that Led to the Ten Commandments and Modern Law 87-92 (Warner Books 2000). Narrative: A Literary and Theological Analysis 128-129 (J. for the Study of the Old Testament

14. This approachis also taken by James K. Bruckner,Implied Law in the Abraham

Supp.Series335, SheffieldAcademicPress2001).

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Sodom and Gomorrah.An ambiguityin the Hebrewmakes it possible to translateverse 17 as "Shall I hide from Abrahamthat which I do [asher ani oseh]"-not merely on this occasion, but as a regular if practice. This readingexplainshow God could remainopen-minded: God wishes to model the processof judging,which is analyticallyprior to a final decision, the outcome must be indeterminate the outset. at God's exchange with Abrahamis for real; the fate of Furthermore, SodomandGomorrah thanviewing God as hangsin the balance. Rather a self-doubting or executioner a Socraticteacher,this readingsees God as a judge. Abraham,for his part, plays the role of advocate. God states Abraham's in qualifications verse 19, which, againbecauseof ambiguity in the Hebrew,couldbe translated "ForI have singled him out, since as 'an asher] he commands childrenandhis householdandkeeps his [lema the way of the Lord, doing righteousness [tzedakah] and justice As [umishpat]."15 an advocate,Abrahamstandsbetween the accused and the judge, symbolized linguisticallyby, on the one hand, using variations of the Hebrew word tzedek to denote Abraham's and and, on (tzedakah) the innocentof Sodom (tzadikim) righteousness the other hand, using variations of the word mishpat to denote Abraham's justice (mishpat)and the figure of God as Judge (shofet). Linguistically, the combination of these two qualifications in the expression mishpat-utzedakah produces the Hebrew term for social As an advocate,Abraham servesthe interests bothhis client of justice.16 andthejudge, andin doingso, he promotes justice. This ad hoc trial is occasionedby an "outrage" and an "outcry" in from Sodomand Gomorrah verses 20 and 21 respectively. emanating These two words in Hebrew,za 'akahand tza'akah,are really identical terms,dialecticalvariantsof each other,17 denotinga cry of distressor also serve as technical legal terms for a claim of suffering. They injustice linked to a demand for redress.18 The phonetic similarity
of follows the interpretation the Rabbiniccommentator Rashi (104015. This translation 216 Hayyim (MossadHaravKook 1986)(author's 1105)on verse 18:199. Torat translation). 16. For a lengthydiscussionof this term,see Moshe Weinfeld,Justice and Righteousness: Press1995). (Fortress 1989). Von Rad, Old Testament 18:22-33, 41 J. of Jewish Stud. 1, 2 (1990); Gerhard Theology207 well knownexample,see & (Harper Brothers1962);Bruckner, supra n. 14, at 143. Foranother Genesis 4:10, where the verbal form of tza'akahis used to describehow the blood of Abel, to murdered his brother Cain,"criesout"(tzoakim) God fromthe earth. Supran. 11 (New JPS by
18. Joseph Blenkinsopp, The Judge of All the Earth: Theodicy in the Midrash on Genesis The Expression and Its Meaning, in Social Justice in Ancient Israel and in the Near East 25 17. Nahum Sara, The JPS Torah Commentary, Genesis 132 (Jewish Publication Socy.

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between the Hebrew terms tza'akah (outcry) and tzedakah (justice) symbolizes linguistically that cries of distress are usually opportunities for doing justice.19 This wordplay works in two distinct ways. First, tza'akah is linguistically perverted tzedakah, reflecting that it comes from perverted justice. Second, tza'akah cries out, so to speak, for tzedakah.20 Rabbinic tradition elaborates on this theme, depicting judicial perversion as a primary source of the outcry against Sodom. The Talmud relates that: There were fourjudges in Sodom [named]Shakrai [Liar],Shakuri [Big Liar], Zayyafi [Forger], and Mazle Dina [Arbitrary Judgment]. Now, if a man assaulted his neighbor's wife and bruisedher, they would say [to the husband],'Give her to him [the attacker],that she may become pregnantfor thee.' If one cut off the ear of his neighbor's ass, they would order [the owner], 'Give it to him [the tortfeasor]until it grows again.' If one wounded his neighbor they would say to him [the victim], 'Give him a fee for bleeding thee.' He who crossed over with the ferryhad to pay four zuzim, whilst he who crossed throughthe water had to pay eight. On one occasion, a certain fuller happened to come there. Said they to him, 'Give us four zuzim [for use of the ferry].' But, protestedhe, 'I crossed throughthe water!' 'If so,' said they, 'thou must give eight zuzim for passing throughthe water.' He refused to give it, so they assaulted him. He went before the judge, who ordered,'Give them a fee for bleeding and eight zuzim for crossing throughthe water.'21 This passage implies that in order to rectify their abuses of judicial power, God assumes the role of judge and puts the Sodomites on trialan especially fitting response. Following God's declaration of intent to judge Sodom, He declares in verse 21, "I will go down to see whether they have acted altogether The Rabbinic according to the outcry that has reached me." Rashi notes that the metaphor of God going down to commentator investigate teaches that judges should not decide capital cases without
Translation). 19. Weinfeld,supran. 16, at 218. The wordplay betweentza'akahand tzedakah also occurs in Isaiah 5:7:"Forthe vineyard the LORDof Hostsis the Houseof Israel,andthe seedlingshe of lovinglytendedare the men of Judah. And he hopedforjustice, but behold,injustice;for equity but [(l'tzedakah)], behold,iniquity[(tza'akah)]!"Supran. 11 (New JPSTranslation). 20. I am grateful TzviNovick forpointingout thesetwo distinctways of understanding to the betweentza'akahandtzedakah. wordplay 21. BabylonianTalmud,Sanhedrin109b (Soncino ed., 1935) (emphasisadded) (footnote omitted).

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adequately clarifying the facts.22 Yet, as important as factual clarificationis to good judging, God sends the two men down to to investigatethe facts while He Himselfremainswith Abraham discuss the governinglegal principles. The ensuingdialoguebetween God and is Abraham not a disputeaboutfacts,but a discussionaboutlaw. Thus, we may view Abraham'sobjectionsas a challengeto the legal grounds of God'sjudgment. By opening up the process of divine judgmentto Abraham,God invites this challenge,modelingthat a judge benefits from pressureto considerandclarifythe principles his underlying decisions. Thejudge's debtto zealousadvocatesis hintedat in the originalphrasingof verse 22 (amended ancientscholarsduringthe SecondTempleperiodto avoid by any implicationof disrespectfor God):"Themen went on fromthereto Sodom, while the Lord remainedstandingbefore Abraham."23This phrasing implies that God sought an audience before Abraham. A of Rabbinicinterpretation verse 33 makesthis explicit (for ourpurposes as when He finished here,the verse is best translated "AndGod departed and to to Abraham; Abraham returned his place"): speaking of Said Beholdthe humility the Holy-One-Blessed-Be-He. Rabbi two people standaroundtalking,[and Berechaya,'Customarily when] they wish to take leave of each other,the less important asks permission[to be excused]fromthe more important.The when He spoke with Abrahamand Holy-One-Blessed-Be-He, wishedto takeleave of him,it is as if He askedpermission be [to
Abrahamreturnedto his place.'24

and whatpoint? '[W]henHe finishedspeaking,' afterthat 'And

excused] from Abraham,as it says, 'And God departed ...."

At

is Thus, the dialoguebetweenGod and Abraham framedby two verses God the judge to Abrahamthe lawyer, that momentarilysubordinate of signalingthe dependence judicialprocesson vigorousadvocacy. In his first and boldest challenge to God, Abrahamasserts the calls of unfairness treatingthe innocentandthe guilty alike.25Abraham
22. See Rashion verse 18:21,Torat Hayyim,supran. 15, at 217. 23. See Rashion verse 18:22(S. Bubered.), id. at 218. Parshat 24. MidrashTanchuma, translation). Vayera, para.8, (author's haveremarked the explicitlyjuridicalcategoriesof "innocent" on 25. Modemcommentators (tzadik)and "guilty"(rasha)in Abraham's plea. See e.g. TheAnchorBible: Genesis 134 (E.A. & supran. 14, at 96-99. Otheruses of Speiser,Intro.& ed., Doubleday Co., Inc. 1964);Bruckner, the terms tzadikand rasha in this juridicalsense occur in Exod 23:7: "Keep far from a false for charge;do not bringdeathon thosewho are innocentandin the right[v'nakiv'tzadik], I will not acquitthe wrongdoer Deut 25:1:"When thereis a disputebetweenmen andthey go [rasha];" and et to law, and a decision is rendered declaringthe one in the right [v'hitzdiku hatzadik] the et otherin thewrong[v'hirshi'u harasha];" Kings8:31-32: 1

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on God to performthe fundamental judicial task of making relevant the most essentialof which is that between innocenceand distinctions, guilt.26Among the Rabbiniccatalogueof Sodom's sins is the failureof its judicial officials to make distinctions. A Rabbinic commentary, in paraphrased LouisGinzburg TheLegendsof theJews, relatesthat: by At the suggestion [the]judges [of Sodomand Gomorrah], of the cities set up beds on theircommons. When a stranger arrived, threemen seizedhim by his head,andthreeby his feet, andthey forcedhim uponone of the beds. If he was too shortto fit into it his exactly,his six attendants pulledandwrenched limbsuntilhe filledit out;if he was too long for it, theytriedto jam him in with until the victim was on the verge of all theircombinedstrength, weremet with the words,'Thuswill be done death. His outcries to anymanthatcomesintoourland.'27 This story depicts not only the Sodomites' lack of hospitality to in to hospitalityat the beginningof strangers, sharpcontrast Abraham's for 18; it also shows theirjudges' crueldisregard the difference Chapter lies between short and tall. This failureto discriminate at the root of their unjust treatmentof strangers. Thus, the force of Abraham's that by challengeis strengthened the insinuation if God passesjudgment innocentandguilty alike-God will be guilty indiscriminately-treating of the same judicial perversionfor which the Sodomites are on trial. Abrahamis warningGod against acting hypocriticallyin judging the Sodomites. God's integrityis on the line, and Abraham'schallenge calls on God to exercise His power accordingto a basic norm of the betweenthe innocentandthe guilty. judicialrole:to discriminate We can betterappreciate how powerfulthis line of argument is just the Sodomstoryto thatof the flood.28In the flood story, by comparing God destroys all of civilization, without distinguishingbetween the
Wheneverone man commits an offense against another, and the latter utters an to beforeYouraltar imprecation bringa curseuponhim, andcomeswith his imprecation in this House, oh, hearin heavenand take actionto judge Your servants,condemning him who is in the wrong [I'harshiarasha] and bringingdown the punishment his of him conducton his head,vindicating who is in the right[u 'I'hatzdik tzadik] rewarding by to him according his righteousness; Isaiah 29:20-21:"Andthose diligentfor evil shall be wiped out, who cause men to lose their at lawsuits,layinga snarefor the arbiter the gate, andwrongingby falsehoodhim who was in the Prov 17:15:"Toacquitthe guilty [rasha]and convictthe innocent[tzadik]-both right [tzadik]"; to are an abomination the LORD."Supran. 11 (New JPSTranslation). see 26. Fora similar reading, Bruckner, supran. 14, at 134. 27. Louis Ginzburg,The Legends of the Jews. Vol. 1: From the Creationto Jacob 247 Szoldtrans.,JewishPublication 109b,supran. (Henrietta Socy. of Am. 1909);see BT,Sanhedrin, 21. 28. See Gen6:1-8:22(New JPSTranslation).

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innocentand the guilty. Waterrains down from above and springsup from below-"All the fountainsof the greatdeep burst apart,and the floodgatesof the sky broke open"-obliterating all inhabitantsof the earth, save the passengerson Noah's ark.29 God's unwillingness to betweenthe innocentandthe guiltyresultsin the destruction distinguish of all civilization,just as His eliminationof the differentiation between the primordialupper and lower waters leads to the near collapse of creation.30 contrast,in the Sodomstory,God attempts distinguish to By between good and evil cities, singling out Sodom and Gomorrahfor punishment.In the Sodomstory,God wishes to relateto the world as a judge, as one who distinguishesbetween the innocentand the guilty. Abraham'schallengeis based on God's failureto distinguishcarefully enough,to separateout the innocentand the guilty within Sodom and and Gomorrah, hence pointsout God's failureto live up to the demands of thejudicialrole thatHe, Himself,chose to adopt. Ironically,Abraham'sclaim that it is unfairto treat the innocent and the guilty alike prefaceshis requestthatGod acquitall of the city's inhabitants-innocent and guilty alike.31 This kind of inconsistency, is however,like pleadingin the alternative, no vice for a lawyer;rather, it is a legitimatepartof vigorousadvocacy.32The distinctprofessional roles of advocate and judge make inconsistencyin argumentation a virtuefor one anda vice for the other. The rhetoricalcrescendoof Abraham's initial challengeto God"Shall not the Judge of the earth deal justly?"-highlights a second ambiguity:How could God be capable of injustice? The implicit of standard justice by which to premisethatthereexists an independent judge God's conduct contradictsthe Biblical portrayalof God as the creatorof everythingin the cosmos, including justice. The conception of God as Creator marks one importantway in which Biblical differsdramatically fromthe Mesopotamian jurisprudence legal culture out of which it arose. Mesopotamianlegal documents reflect a conceptionof justice as independentof the gods, hardwiredinto the of structure a cosmos whichthe gods inhabit did not create. Gods, in but the Mesopotamian have specialinsightinto the principlesof conception,
29. Gen7:11 (New JPSTranslation). 30. On the second day of creationthatGod separated upperfromthe lower waters. See the Gen 1:6-8(New JPSTranslation). 31. See Dershowitz,supra n. 13, at 84. For a fuller discussionof the reasoningbehind

32. It is also worthnotingAbraham's as personalinterest, fatherof the Jewishnation,in the that of proposition the righteousness a smallgroupcanredeema sinfulworld.

Abraham's challenge, see Ehud Ben Zvi, 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).

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justice, and they pass on this insightto chosen humanrulerswho make the laws.33By contrast, God of the Bible is Himselfthe sourceof justice law. Fromthe Biblicalperspective, unjustdivinepronouncement an and in is a contradiction terms. Abraham'saccusationis merely a good faith mistakePerhaps Abraham honestly but erroneously believes God's conduct to be This reading,however,robsthe encounter its jurisprudential of unjust.34 interest, reducing it to a portrait of misguided righteousness. Alternatively,maybe Abraham,playing the zealous advocate, knows that God's conductis just and is merelypuffing in the hope of winning an acquittalfor his client.35 But does Abrahamreally think that God could be swayedby the rhetorical flourishesof a cleverlawyer? One way to avoid these difficulties is to translateAbraham's statementas: "Shall not the Judge of the earth do judgment [ya'aseh mishpat]?" This rendering emphasizesthe text's use of the same root Thus, Abrahamis warningGod against conduct inconsistentwith the judicial role that He has assumed. As a judge, God must exercise His with the normsof judging,not in ways thatwould power in accordance violate thosenorms. Sinceno higherauthority appointed has Godjudge, if He is a judge, this can only mean that He acts like one. Abraham's is argument based on the idea of role morality:God's wish to adoptthe role of judge is reasonfor Him to acceptits constraints.37 Failureto do
(sh-f-t) in the related words judge (shofet) and judgment (mishpat).36

33. See ShalomPaul, Studiesin the Book of the Covenantin the Light of Cuneiform and BiblicalLaw3-10 (E.J.Brill 1970). 34. JackLundbom, and Parataxis,Rhetorical Structure, the Dialogue over Sodomin Genesis 18, in The Worldof Genesis:Persons, Places, Perspectives136, 143 (Philip Davies & David Clines eds., SheffieldAcademicPress 1998). MeirWeiss's thoughtful of interpretation the story this betweenguilty andinnocent supports view by implyingthatthereis no lack of discrimination in God'sjudgmentof Sodom. Weiss pointsout thatGodjudges the city as a whole according to whetherit possessesa requisite number righteous of individuals.Since it does not, He destroysit. in out of By contrast, carrying the destruction the city, God saves all of the righteousindividuals in it-Lot, his wife, and his two daughters-punishing only the wicked. Whereindividualsare God carefullydiscriminates betweenthe innocentandthe guilty. Thus,any sense that concerned, results from a failure to appreciatethe differencebetween God's judgmentis indiscriminate withinit. See Weiss,supran. 9, at 250-251. judgingthe city as a whole andtheindividuals 35. Dershowitz, supran. 13, at 84. of 36. The translation mishpatas judgmentin this verse is supported Weinfeld,supra n. by 16, at 33-37; S.R. Driver,TheBook of Genesis 197 (5h ed., Methuen& Co. 1906); C.A. Rodd, ShallNot theJudgeof All theEarthDo What Just?(Gen 18:25),83 Expository Is Times 137, 137 translates as "right it (1972); Speiser,supran. 25, at 134. Blenkinsopp supran. 18, at judgment", 122. The Hebrewword shofet can also mean "ruler" "leader." See MartinRozenberg,The or 77 the SOfTlMin the Bible, 12 Eretz-Israel (1975). We may speculatethat,for Biblical authors, dualmeaningof this wordindicates is of thatjudiciousness a definingcharacteristic leadership. Role Obligations, J. Phil.333, 333-364 (1994). 91 37. See MichaelHardimon,

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so would be self-contradictory; would undermineGod's integrity.38 it of Rabbinicinterpretation Abraham'sexclamation,an exclamationthat is repeatedtwice in verse 25 for emphasis,"Farbe it fromYou [chalilah this I'cha],"supports view thathe wishes to raise a concernabout God's It Judaninterpreted: "R[abbi] integrity. Accordingto one commentary: for Thee, it is alien to Thy nature. R[abbi] is a profanation (halalah) is Acha said: HALILAH written twice, implying, Such action would profane (hilal) the Divine Name."39 The divine Self, like the human self, manifestsitself in the worldby takingon roles, and violating those of the roles undermines integrity the self. In considering the ways in which God's conduct threatens to violate the judicial role, one Rabbinicinterpretation suggests that God fails to follow properprocedure: pleaded R[abbi]Judah[son of] R[abbi]Simon said: [Abraham judge,an appealcan be made thus:]'Evenin the case of a human to from the commander the prefectand from the prefectto the but Thou,becauseno appealcan be made from Thy governor; wilt Thounot do justly?' R[abbi]Judahsaid further: judgment, to Thoudesiredst judge Thy world,Thoudidstentrustit [']When and to two,Romulus Remus,so thatif one wishedto do something the othercould veto him; while Thou,becausethereis none to veto Thee,wiltThounotdojustly?[']40 Rabbi Judahhere explains that proper procedurerequireschecks on judicial power. Checks can be vertical-appellate review by a higher assessmentby a peer. The analogy, court-or horizontal-independent however, does not seem apt, since there is no higher court that could review God's decisionsand God has no judicial peers. As the psalmist alone are God."41 Yet while appellate and peer review of God's judgments may be impossible, Abraham's challenge nevertheless constitutesa check on divine judicial power from below. Abraham demandsthatGod providea principledaccountingof His decision. The dialogue focuses on the generalprinciplesunderlyingGod's decision, case of Sodom, when Abrahamdeclares: beyond merely the particular "Farbe it fromYou to do a thing like this (kadavarhazeh)." Abraham
would be inconsistentwith divine character, 38. Ben Zvi suggests that actinginjudiciously in mentioned verse 19. Ben Zvi, supran. 31, at 39. See SamuelBalentine, "theway of the Lord" 609, 611 (1989). 39. GenesisRabbah, 49:9, supran. 12, at 428 (footnotesomitted). 40. GenesisRabbah, 49:9, supran. 12, at 429 (footnoteomitted). 41. Psalms86:8, 10 (New JPSTranslation).

declares, "There is none like You among the Gods, O LORD ....

You

Prayers for Justice in the Old Testament: Theodicy and Theology, 51 Catholic Biblical Q. 597,

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indicates that providing legal grounds for decisions is an essential of responsibility thejudicialrole. of Abraham's demandfor a justification God's decisionilluminates of the ensuing exchangebetween them. The exchange has the nature to and been compared hagglingin the marketplace42 to plea-bargaining.43 These comparisonsare, however, inapt. Haggling and bargainingare characterized competingoffers thateventuallyconvergeon an agreed by price or sanction. By contrast,here God accepts each of Abraham's figures, only to have Abrahamoffer an even lower one which God in turnaccepts. The exchangereads more like a formallegal proceeding session. Throughout, Abraham thana bargaining prefaceshis questions with formulaic modes of address characteristicof formal legal
proceedings: "Here I venture to speak to my Lord ... [hinei-na hoalti if I speak ... [al na yichar l'adonai va'adabrah]" in verses 30 and 32.

lidaberel adonai]"in verses 27 and 31, and "Letnot my Lordbe angry

unlike a bargainingsession, the dialogue appears less Furthermore, concernedwith influencingGod's ultimatedecisionthanwith clarifying the grounds of His judgment.44 Indeed, it reads just like the paradigmatic slippery slope discourse characteristic of appellate argument. Abraham's carefully phrased line of questioning seems designed to expose the limit of the principlethat God will spare the cities if He can find within them a requisite number of innocent inhabitants. tone of Abraham's The rhetorical challengeis notedby a Rabbinic of the phrase,"Abraham came forward[vayigash]"at the interpretation beginningof the exchangein verse 23. The problemin this phrasethat is demands interpretation what the text could mean by describing as God. The Rabbisresolve Abraham moving closer to an omnipresent the this problemby interpreting term "came forward" metaphorically, drawingon use of the termelsewherein the Bible: R[abbi] Judah, R[abbi] Nehemiah, and the Rabbis each commented. R[abbi]Judahsaid: He drewnear for battle,as it says, 'So Joab and the people that were with him drew nigh unto battle,'etc. [2 Sam 10:13]. R[abbi]Nehemiah [vayigshu] as said: He drew near for conciliation, in the verse, 'Then the
42. Lundbom, supran. 34, at 140-141. 43. WilliamMartin,Whatis a Lawyer,29 Ark. Lawyer15 (1995). For a similarsuggestion are see thatGodandAbraham negotiating, BurtonVisotzky,TheGenesisof Justice68-73 (Crown 1996). 44. See Claus Westerman,Genesis 12-36, 291-292 (AugsburgPublg. House 1985); John
Skinner, A Critical and Exegetical Commentary on Genesis 305 (T. & T. Clark 1930); Weiss,

supran. 9, at 251.

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childrenof Judahdrew nigh [vayigshu]unto Joshua' [Joshua The 14:6]-to effect a reconciliation. Rabbissaid:He drewnigh for prayer,as it says, 'And it came to pass at the time of the that camenear offeringof the eveningoffering, Elijahthe prophet andsaid:O Lord, Godof Abraham, Isaac,andof of the [vayigash], Israel,let it be knownthisdaythatThouartGodin Israel,'etc. [1 it Kings 18:36]. R[abbi]Leazarsaid: Interpret thus: I come, it be forbattle,conciliation, prayer.45 or whether This commentarypoints out that Abraham'srole demands that he display a variety of attitudes toward judicial power. Like battle, like advocacy must at times be confrontational; conciliation,it often involves seeking an amicable resolution;and like prayer, it requires respect for authority. A talentedadvocatelearnshow to projectthese of differentattitudes depending uponthe demands the moment. As the dialoguebetween God and Abraham develops, Abraham's attitude of moral indignationgives way to a initial confrontational calmersearchfor clarification. His openingquestionsin verses 23 and of tone. The Hebrewtermha-af, a combination 25 have an accusatory ha with the conjunction the interrogative afmeaning "indeed," particle appears in Abraham's first two questions, reflecting Abraham's "Indeed[ha-af], will you sweep away the innocent along indignation: with the guilty?" in verse 23, and "Perhapsthere are fifty innocent withinthe city; indeed [ha-af],will you sweep away andnot forgive the place on accountof the fifty righteouswho are in it?" in verse 24. As the dialogue progresses, however, Abraham's tone becomes less confrontational. He prefaces his subsequent questions with more deferentialmodes of addresssuch as "HereI ventureto speak to my Lord,I who am but dust and ashes,"in verse 27 and "Letnot my Lord be angryif I speak,"in verses30 and32. rhetoricalso reflectsa gradualchange The softeningof Abraham's over the courseof the dialogue. The termha-afhas in God's demeanor of been rendered an earlyAramaictranslation the Bible as "anger," by since af is also the word for anger. Abraham'sinitial question thus reads: "In anger will you sweep away the innocent along with the guilty?"46 Relying on this second meaning of af, several Rabbinic
45. GenesisRabbah49:8, supran. 12, at 426 (footnote& emphasisomitted). In Exod 24:14 "To to the verbyigash is usedto denotecomingforward demand judgment: the eldershe hadsaid, to 'Waitherefor us untilwe return you. You haveAaronandHurwith you; let anyonewho has a of legal matterapproach [yigash]them."' Supran. 11 (New JPS Translation).For a comparison withprayer, Balentine, see Abraham's rhetoric supran. 38, at 605, 616. 46. Targum Onkelos,Genesis 18:23,in ToratHayyim, supran. 15, at 218. The questionin verse 24 could similarlybe read:"In angerwill you sweep away and not forgive the place on

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interpretations similarly understand Abraham to be referring to God's anger: R[abbi] Huna said in R[abbi] Aha's name: ... Thou confinest anger, but anger cannot confine Thee [reading verse 23 as "The [ha, read as the definite article] anger [aJ] you will sweep away ..."]. R[abbi] Joshua b[en] Nehemiah interpretedit: The anger [aJ] which Thou bringest upon Thy world, wouldst Thou destroy therewiththe righteousand the wicked! .... Rabbi and R[abbi] Jonathan each commented. Rabbi said: [Abrahampleaded:] A humanbeing is masteredby his anger, but the Holy One, blessed be He, masters anger, as it says, 'The Lord avengeth and masterethwrath [Nachum 1:2]. R[abbi] Jonathan said: A human being is masteredby his jealously, but the Holy One, blessed be He, mastersHis jealously, as it says, [']The Lord is God [i.e. master]overjealousy and vengeance [Id.] .....['] R[abbi] Levi and R[abbi] Simon commented. R[abbi] Levi said: [Abraham pleaded: 'Is Thine Anger] like a she-bear ravaging among animals which, if it does not find anotherbeast to destroy, destroys its own young!' R[abbi] Simon said: [Is Thine anger] like a scythe which cuts down thorns,but when it finds [no more] cuts down roses!47 These readings stress the indiscriminate destructiveness of divine anger and the belief that God sitting as judge is able to master His anger. God's answers to Abraham's questions are direct and dispassionate, especially when compared to His initial outrage at the outcry of Sodom and Gomorrah. Thus, while clarifying the grounds of God's judgment, the dialogue appears to calm both Abraham and God. As Shalom Spiegel has said in praise of the deliberative nature of judicial process, "Justice cools the fierce glow of moral passion by making it pass through reflection."48 By allowing Abraham to question Him, God recognizes the importance within judicial process of deliberative dialogue. Rabbinic interpretations of Abraham's incremental style of questioning indicate that God encouraged the dialogue: R[abbi] Hiyya b[en] Abba said: Abrahamwished to descend from fifty to five, but the Holy One, blessed be He, said to him: 'Turn
account of the fifty righteous who are in it?" 47. Genesis Rabbah 49:8, supra n. 12, at 427-428. 48. Shalom Spiegel, 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).

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back.' R[abbi]Levi said:This may be compared a clepsydra to a waterclockusedin Greeklaw courtsformeasuring time the [i.e. for arguments] of water;only as long as it contains full given watermay the defending counselplead;yet sometimes judge the desireshim to continue defence[sic], and so he orders,'Pour his
more water into it.'49

The Rabbishere seem to suggest that God was as intent on pursuing dialogueas Abraham.The Rabbisalso pointout thatthe scene comes to a close not with a final decision, but at the end of the conversation, thereby emphasizing the centrality of deliberative dialogue in the verse 33, which could be translated process of judging. In interpreting and as, "Andthe Lordleft when He had finishedspeakingto Abraham, Abraham returned his place,"the Rabbiscomment:"Ajudge waits as to long as the advocateis pleading;when the advocatebecomes silent, the
judge rises [to go]."50 Another interpretationis that "an advocate goes

on pleadingas long as the judge is willing to pay attentionto him, but when the judge rises to go, the advocate becomes silent.""5 This highlights the mutual respect that characterizes the interpretation dialoguebetweenjudge and advocateas each plays an essentialrole in the processof judging. two At this point, it may be helpful to summarize jurisprudential themes that have so far emerged from our reading. First, as God's reflects,sufferingprovides responseto the cry of Sodom andGomorrah an occasionforjudgment. To addressclaims of injusticeis the primary work of a judge. Judging is an essentially responsive mode of governing. Second,carriedon while the two men are off investigating the situation in Sodom, the dialogue between God and Abraham suggeststhatgood judgmentrequiresboth factualclarityand principled normative grounds. These grounds are developed and articulated petitionaland througha process of dialoguethat is at once adversarial, respectful. Together, these two themes suggest a model of divine on basednot on unrestrained power,butrather accountability. authority is a central feature of the judicial role that God Accountability models for Abraham. By initiatingthe conversation,God willingly is places Himselfin a positionto be held accountable.Accountability a and kind of reciprocity betweena superior his subordinates.In the case of judicialaccountability, judging subjectsthe judge to the judgmentof others. Our text alludes to this reciprocal quality of judicial
49. Genesis Rabbah 49:12, supra n. 12, at 432. 50. Genesis Rabbah 49:14, supra n. 12, at 432-433. 51. Id.

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accountability employing the Hebrewterm vayashkifuin verse 16, by the openingverse of the story:"Themen set out fromthereand looked [vayashkifu] down toward Sodom." The medieval Rabbinic Radakpoints out thatthe verb vayashkifu commentator derivesfromthe rootsh-k-f,andthatthe passiveandactiveformsof the verb(nishkafand are Fromthis he concludesthatin hishkifrespectively) interchangeable. eitherform,the wordconnotesseeing andbeing seen at the same time.52 The choice of this verb sets the stage for the portrayalof God as an accountablejudge: God examines Sodom while being examined by Abraham. A Rabbinic commentarymakes explicit God's accounting to Abraham His actions. According this interpretation: for to
Abraham said to the Holy-One-Blessed-Be-He: .... Let not

Answeredthe Holy-One-Blessed-Be-He: you have spoken. So Comeandsee, I will present beforeyou all of the generations that I havedestroyed, I will showyou thatI didnot inflicton them and than greater punishment they deserved. And if in your opinionI havenot actedjustifiably, teachme andI will do [as you instruct], as it is written, "teach whatI do not see; if I have donewrong, me I shalldo it no more(Job 34:32).53 Thus,God submitsHimselfto Abraham's judgment.54 At this point, a thirdambiguity arises:Why would God want to be held accountable? Based on humanexperience,we may speculatethat makes the exerciseof power-even divine power-more accountability effective. Accountability forcesa rulerto takeseriouslythe perspectives of those whom he commands; it thereby leads him to a better of understanding the complexrealitythathe seeks to govern. The world is an imperfect place, and attempts to govern according to ideal standards, untempered the inputof the governed,have often endedin by frustration misery. One Rabbinic and commentator recognizedthe need for even God to be realistic,interpreting Abraham's challengeto God in this way:
53. MidrashTanchuma (Std. ed.), Parshat Vayera,para. 10, supra n. 15, at 214 (author's Citedin Blenkinsopp, translation). supran. 18, at 6-7. 54. The Rabbis'audacityin attributing such a statement God is compounded the fact to by thatthe quotedscriptural versefromthe bookof Job is clearlyintended applynot to God but to to man." a representative "impious
52. David Kimhi, Commentary on Genesis 18:16, in Torat Hayyim.

the tower of Babel].

futuregenerations His tradeis to destroythe generations out say: of cruelty. [Thus]He destroyed generation Enosh, the the of of of generation the flood,the generation the dispersed [whobuilt
He never rests from His trade ....

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If Thoudesirestthe worldto endure, therecan be no absolutely strict while if Thoudesirestabsolutely strictjudgment, judgment, the worldcannotendure, Thouwouldsthold the cordby both yet boththeworldandabsolute ends,desiring judgment!UnlessThou a little,theworldcannot endure. foregoest Abraham here arguesthat effective governanceof the world calls for a realism about rules, an ability to tailor principlesto reality. Dialogue with Abraham allows God to gain insightinto reality,and accountability facilitatesthat dialogueby calling on God to provide reasons for His
decisions.

provides God Beyond merely promotingdialogue, accountability an even deeperappreciation the perspectiveof the worldHe governs. for It allows God to walk in the shoes of His subjectsby providingHim with the very human experience of being judged. As Creatorand be Sovereignof the Universe,Godwouldnevernaturally in a positionto of be judged. So He adoptsthe role of judge, acceptingits requirement and this allows Him to be on the receiving end of accountability, Abraham'sjudgment and to appreciatebetter the world He judges. Thus, even to God appliesthe wisdom of the Rabbinicsaying:"do not judge yourfellow untilyou have reachedhis place."56 As in the case of a human judge, we can imaginethatGod's ability makeshim a more to standin the place of those subjectto His authority betweenjudgmentandcompassionis judge. The relation compassionate of signaledby thejuxtaposition thejudgmentof Sodom andthe opening of the chapter,in which God appearsto Abraham.57The Medieval Rashi points out that the verses immediatelypreceding commentator circumcision.58 Rashi explainsthat God's appearance depictAbraham's the motivation for God's appearance so soon after Abraham's circumcision was "to visit the sick"-a paradigmatic act of compassion.59 The text furtherassociatesjudgment with caring for others by placing the judgmentof Sodom and Gomorrahbetween two stories and abouthospitality-the firstinvolvingAbraham the secondLot. The virtues of good judgment and hospitalityare explicitly linked by a in on Rabbiniccommentary God's choice of Abraham verse 19, which as: may be retranslated "ForI have singledhim out, thathe may instruct
55. GenesisRabbah 49:9, supran. 12, at 429-430. 56. MishnaAvot 2:4, in TheMishna:Seder Nezikin,with Commentary HanochAlbeck by (Hebrew)(BialikInstitute 1988). 57. Gen 18:1(New JPSTranslation). 58. See Gen 17:23-27(New JPSTranslation). 59. Rashion Gen 18:1,in Torat Hayyim, supran. 15, at 204.

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his children and their posterity to keep the way of the Lord by doing righteousness (tzedakah) and judgment (mishpat):" R[abbi] Acha said in R[abbi] Alexandri's name: This (zedakah) refers to his hospitality [in providingmeals] .... R[abbi]Azariah said in R[abbi] Judah's name: First [is written]zedakah and then mishpat (ustice): how is this to be understood? Abrahamused to receive wayfarers. After they had eaten and drunkhe would say to them, 'Now recite Grace.' 'What shall we say?' they asked. 'Blessed be the God of the Universe of whose bounty we have partaken,'he replied. If one consented to recite grace, he would [be allowed to] eat, drink,and depart. But if one refused, he would demand, 'Pay me what you owe me.' 'Why, what do I owe you,' he would reply. 'One xestes of wine costs tenfollera, a pound of meat costs tenfollera; a roundof breadcosts tenfollera. Who will give you wine in the wilderness; who will give you meat in the wilderness; who will give you bread in the wilderness?' Seeing himself thus driven into a corer, he would say, 'Blessed be the God of the Universe of whose bounty we have eaten.' Hence, ZEDAKAHis writtenfirst and then MISHPAT.60 Tzedakah (righteousness) is here portrayed as caring for guests, while mishpat (the word for judgment) consists in making sure that they give God the thanks that are due to Him. Abraham's treatment of wayfarers exemplifies both as two aspects of the same activity. Judgment and hospitality are also linked in the portrayal of Lot, who graciously welcomes the two visitors to Sodom while sitting in the gate of the city, the place where judges regularly adjudicated disputes in ancient near eastern cities.61 The text also affirms the link between judgment and hospitality by its negative portrayal of the inhabitants of Sodom in their assault on Lot's house after he had fed the visitors: 4 They had not yet lain down, when the townspeople, the men of Sodom, young and old-all the people to the last man-gathered about the house. 5 And they shouted to Lot and said to him, 'Where are the men who came to you tonight? Bring them out to us, that we may be intimatewith them.' 6 So Lot went out to them to the entrance,shut the door behind him, 7 and said, 'I beg you, my friends, do not commit such a wrong. 8 Look, I have two daughterswho have not known a man. Let me bring them out to you, and you may do to them as you please; but do not do anything
60. Genesis Rabbah, 49:4, supra n. 12, at 423-424.

in 61. See Gen 19:1("Thetwo angelsarrived Sodomin the evening,as Lot was sittingin the gateof Sodom.") (New JPSTranslation).

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to these sincethey havecomeunderthe shelterof my roof.' 9But men, 'Stand back! Thefellow,'theysaid,'camehereas said, they he an alien,and already acts the ruler! Now we will deal worse withyou thanwiththem.'62 of The phrase "acts the ruler"in verse 9 is a translation the Hebrew from the root sh-f-t, which, as we have seen phrasevayishpotshafot as, above,meansto judge. Thus,verse 9 mightbe bettertranslated "But they said, 'Standback! The fellow,' they said, 'came as an alien and now sits in judgment."'63Thus, the Sodomites'grievanceis based on both Lot's hospitalityand their perceptionthat he is judging them. Sodom is a society that rejectsboth hospitalityandjudgment.64As we saw earlier,Rabbiniccommentaries supportthe view that Sodom was of both for its persecution visitorsandalso for its perversion condemned of formal justice.65 Thus,the storyof SodomandGomorrah providesus with a portrait of divine judicial power characterized the virtues of accountability by as and compassion. God's accountability a judge is reflected in His whereGod models a processof judgingthat is with Abraham, exchange principledand dialogic. God's compassionas a judge is evident from of the very beginningof the story. God's assumption the judicialrole in the first place comes in response to cries of suffering and injustice emanatingfrom Sodom and Gomorrah,and the association between reinforcedby the literarycontext of judging and compassionis further the story-its placement amidst scenes of visiting the sick and to hospitality wayfarers.
IMPLICATIONS III. JURISPRUDENTIAL

Let us now consider some implicationsof this reading-both its substanceand its methodology-for contemporary jurisprudence.As I the Bible cannotprovideus with mentionedin the introduction, reading an unquestionable justificationof judicial authority. It can, however, help to advancethe discoursebeyondLeffs diagnosisof jurisprudential despair.
62. Gen 19:4-9(New JPSTranslation). 86 and 63. Cf. RobertAlter,Genesis:Translation Commentary (W.W.Norton& Co. 1996) and this (translating phrase:"'Thispersoncame as a sojourner he sets himself up to judge!"'); Bruckner, supran. 14, at 135 ("Thisfellow camehereas an alien,andhe wouldplay thejudge."). of the 64. Perhaps Sodomites'rejection judgmentaccountsfor God's failureto involve them discussionof this them. For further to directlyin theirtrial,insteadchoosingAbraham represent aspectof the story,see infran. 70. text. 65. See suprann. 21 & 27 andaccompanying

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Genesis 18 teaches us that the norms of the judicial role allow divine power to take the form of judgment. otherwise unrestrained Divinejudgmentis morethanmerelyGod's will; it is His will tempered by respect and concern for His subjects. Acceptance of these same restraintsconfers legitimacy on humanjudicial power-accountability and compassionmakejudicialpower worthyof our respect. It may be true, as Leff says, that when we look behind the judgments of our or judicialofficials, "we are able to locatenothingmore attractive, more final, than ourselves."66 When the judge is accountable and that however,the commonhumanity we uncoveris more compassionate, attractivethan Leff implies, and it is as final as can be expected in a worldwherethe FinalAuthority (assumingHe exists) seems to have left us to governourselves. Again, the Bible does not offer the ultimate justificationof judicial thatLeff seeks. The Sodomstorydoes, however,encourage us authority to shift our focus from seekingunchallengeable foundational principles for judicial authority identifyingvirtuesthat make individualjudges to and the judicial process worthy of our allegiance and respect.67 The Sodom story portraysjudicial authoritynot as a concept but as a relationshipbetween persons-between those who exercise judicial ability power andthose subjectto it. The success of this relationship-its to to contribute the fairnessand effectivenessof the judicial processin depends upon whether the counterparts this relationshippossess and their requisitevirtues. Whenjudges are accountable compassionate, are likely to be betterinformed. They will also find it easier judgments of to obtainthe obedience(as opposedto merelythe subjugation) those to their authority. When those who bring claims beforejudges subject do so, as did Abraham, with a mixtureof aggressiveadvocacy,respect for authority,and eagernessfor resolution,they are more likely to find thejudicialprocesssatisfyingandto have theirfaithin it strengthened. It is interestingto note thatthis accountof judicial authority calls into question the popular feminist dichotomy between hierarchical
66. Leff, supran. 1, at 1229. see 67. For works in moraltheorythat focus on virtuesratherthanfoundational principles, U. Williams,MoralLuck:PhilosophicalPapers 1973-1980 at x (Cambridge Press e.g. Bernard 1981) (moralityshould be "seen as somethingwhose real existence must consist in personal Martha not Non-Relative Nussbaum, experienceand social institutions, in sets of propositions."); in Nussbaum& Amartya An Sen Virtues: Aristotelian Approach, TheQualityof Life 242 (Martha Press 1993) (discussingthe turntowardvirtue ethics based on "dissatisfaction eds., Clarendon with ethical theories that are remote from concretehuman experience."); AlasdairMaclntyre, A (U. After Virtue: Studyin Moral Theory NotreDamePress 1981) (offeringa generalcritiqueof moder moraltheory'squest for foundational principlesand proposinga turntowardmoraland basedon virtue). politicaldiscourse

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itself consists ethic of care.68Judicialauthority moralityanda relational betweena judge andthose subjectto his decisions,and of a relationship the legitimacyof judicial power dependsupon this relationship being of this and foundedon accountability compassion. Thus,the legitimacy rests upon its capacityfor care. The link betweenjudgment hierarchy in this and hospitality the Sodom storysupports analysis. Hospitalityis a relationship characterized the host's power over the guest, and the by success of this relationshiprequires that the host be attentive and responsiveto the guest's needs. A good host, in this sense, serves the needs of his guests. Similarly,the judge who seeks to be accountable attends the claimsand challengesof those who are to andcompassionate subjectto his judgment. This link was explicit in feudalsocieties prior to the rise of professional judiciaries,where the local lord held courtin his house, servingas both host andjudge.69Goodjudgingis itself akin thatexpresses an to an act of hospitality, exerciseof power over another concernfor him. Yet even as the Sodom story illuminates how the virtues of accountabilityand compassion lend legitimacy to judicial power, it remindsus thatin the actualexercise of judicialpower,these virtuesare often less than fully realized. For one thing, God begins not with a what I am but declaration with a question-"Shall I hide fromAbraham to do?" This opens up the possibility that God is reluctantor about God's ambivalentabout makingHimself accountable.70Furthermore, does not extend to a direct encounterwith the accused. accountability at Instead,they arerepresented the trialby an advocatewho is unknown the prosecuting to them and appointed judge.71Finally,the sentence by and mode of execution-death by a storm of fire and brimstone-are the hardlydisplays of judicial compassion. Instead,they demonstrate violence which the exercise of judicial power can set into horrifying while the lord of the motion. Again, the feudalparallelis illustrative: manor was under a duty to care for his tenants by renderingjust brutality. decisions, he often enforcedthose decisions with devastating that can The assertion judicialauthority be legitimatewhen informedby
68. See Carol Gilligan, In a Different Voice: Psychological Theory and Women's 32 Development (Harv.U. Press1982). Law to G. 69. See Frederick Kempin, HistoricalIntroduction Anglo-American 20, 26 (3d Jr., ed., WestPublg.Co. 1990). to for 70. I amgrateful BethBerkowitz pointingthis out to me. 71. Perhapsthe people of Sodomnever appearbefore God becausethey are a society that His rejectsjudgment. OrperhapsGod maintains distancein orderto magnifyhis power,just as architecture createpersonaland physicaldistancethat enhancesthe Black robes and courtroom of projection judicialpower.

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virtuemustnot blindus to the factthatit is backedby violence.72 The justification of judicial authoritybased on the virtues of and accountability compassionis not new. One finds in the historyof jurisprudencemany discussions of the responsive, dialogic, and principled nature of adjudication.73The insights of this tradition, however, are ignored in Leff s search for unassailablefoundational principles-a searchthat,at best, is inconclusive,and, at worst, ends in not despair. The Sodom story encouragesus to view judicial authority but as a conceptin need of ultimatejustification, ratheras a relationship between persons that can be understood through interpretation. Interpersonalrelationships,unlike the carefully defined categorical relationships of analytic jurisprudence, are messy: they involve complexities,ambiguitiesand, at times, contradictions. In seeking to such as love and other types of interpersonal understand relationships, literaryformsare often a bettersourceof insightthanpurely friendship, conceptualanalysis. I am suggestingthat the same might be true for understanding judicial authority,and that the Bible is a good place to start. In attempting to understandthe Biblical portrayalof judicial as betweenpersons,Rabbinicexegesis provides authority a relationship tools that are especially well suited to the task. One methodological underlying assumptionof Rabbinic exegesis is that the Bible is a divinely inspired text. For the Rabbis, the Bible mediated their relationshipwith God, and the text's authoritywas an extension of Rabbinicexegesis as a kind divine authority.David Stem has described with God: of conversation the destruction the Temple,the text of the Torah of Following the existence becamefor the Rabbis primary of the continued sign of the covenantal betweenGod and Israel,and the relationship activity of Torah study-mirdrash-thus became the foremost
medium for preserving and pursuing that relationship ....

72. RobertCover,Violence the Word, Narrative,Violence, theLaw: TheEssaysof and in and RobertCover203 (Martha Minow,MichaelRyan,& AustinSarateds., U. Mich.Press 1992). 73. See e.g. Plato, Crito, in The Trialand Death of Socrates43, 50a-54d (G.M.A. Grube a trans.,HackettPublg. Co., Inc. 1975) (portraying dialoguebetween Socratesand the laws of Athens);Lord Bracton,On the Laws and Customsof England21 (Samuel E. Thore trans., how legal decisions result from dialogue BelknapPress of Harv. U. Press 1968) (describing Gray,TheNatureand Sourcesof the Law amongadvocatesandjudges in court);JohnChipman 100-101(2d ed., Macmillan1948) (asserting judgesdecidecases basedon principle);Ronald that Dworkin,Law's Empire225 (BelknapPress of Harv.U. Press 1986) (analyzingthe principled of Jack Individual nature adjudication); B. Weinstein, Justicein Mass TortLitigation89-107 (Nw. U. Press 1995) (discussinghow judges can andshouldrespondpersonallyto the legal claims of partiesin masstortlitigation).

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Midrashbecamea kind of conversation Rabbisinventedin the orderto enableGod to speakto themfrombetweenthe lines of
Scripture.74

between God and the Rabbiswas Accordingto Stem, the relationship itself constituted the activityof exegesis. The Rabbis'pursuitof that by relationshipthroughtextual interpretation produced insights into the natureof the relationship, such as, in the Sodom story, the responsive, dialogic, and principlednature of God's authorityto judge human beings. Thus, Rabbinicexegesis is self-reflexive:the Rabbispursued theirrelationship God throughinterpretations scripture in turn to of that shed lighton the nature the relationship. of The Rabbis' insights into divine authorityare the productof an "internalpoint of view," that is, the perspective of one who views himself as subjectto divine authority. In The Conceptof Law, H.L.A. Hart arguedthat the natureof legal obligation cannot be understood except from an internal point of view, from the perspectiveof a person who acceptslaws and uses them to guide conduct.75The same may be thereare some aspectsof authority that arguedin the case of authority: cannot be understoodexcept by one who accepts it. The Rabbis' allows them, in readingthe Bible, to put acceptanceof divine authority aside questionsaboutthe basis of God's authorityand to focus instead on the natureof that authority. Thus, the Rabbis' interpretations of divine authorityarise out of their experience of it. The internal viewpoint of the Rabbis,however, goes beyond this, for the Rabbis' of not interpretations divine authority only arise out of their experience of it; these interpretations constitutetheir experience of it. For the divine authority while trying Rabbis,readingis a way of acknowledging it. to understand The Rabbis' acknowledgmentof God's authority does not eliminate their autonomy as readers. This is thanks to a second underlyingassumptionof Rabbinicexegesis: that the Biblical text is a fundamentallycryptic document, the truth of which can only be This second assumption about by apprehended meansof interpretation. the Biblical text led the Rabbisnot only to producebut also to tolerate a multiple interpretations, state of affairsthat David Ster has termed Thus,contraLeff, the Rabbisseem to have avoidedthe "polysemy."76 need to choose betweenacceptanceof divine authority and interpretive
Studies31 (Nw. U. Press1996).
74. David Ster, Midrash and Theory: Ancient Jewish Exegesis and Contemporary Literary 75. H.L.A. Hart, The Concept of Law 89 (2d ed., Clarendon Press 1994).

76. Ster, supran. 74, at 15-38.

31]

NOT THEJUDGE OF THEEARTHDEAL SHALL JUSTLY?

55

of freedom. Indeed,the combination belief in the divine inspiration of the Bible with recognitionof its opacitymakesthe need for creativeand all multipleinterpretation the moreurgent. Even for modem readers,approaching Bible throughthe eyes the of the Rabbis can make reading the Bible not only an interesting of but exploration judicial authority also an actualexperienceof it. On the one hand, the assumption that the Bible is a divinely inspiredtext the readerin a position to be judged. Treatingthe Bible as a places sacredtext makes it a sourceof authoritative normsthatthe readeruses to judge himself. In this way, the reader subjects himself to the of that authority the text. On the otherhand,the assumption the Bible is a fundamentally documentin need of interpretation, cryptic places the readerin the role of judge.77 In orderto make sense of the text, the reader must judge the conduct of the Sodomites, the characterof and Abraham, even the judgmentof God. Acceptingthe Bible's moral while at the same time sitting in judgmentof its characters authority allows one to experiencea kind of reciprocitycentralto the model of that judicialauthority we have been considering. In the end, neitherthe Bible, nor any othertext, can satisfy Leffs demand for an unchallengeablejustification of judicial authority. lens However,the Bible, especiallywhen read throughthe interpretive of the Rabbinic exegetical tradition, offers a remedy for our of jurisprudential despair. The Bible's portrayal God as a judge allows us to see that even if we cannotprovidea foundational justificationfor judicial authority,we can neverthelessidentify virtues that make it worthyof ourrespect.

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