Abraham, the patriarch of Judaism, revered by Christianity and Islam, was the First to Advocate for the Primacy of the Rule of Law and the Obligation of Rulers to do Justice.

Christmas and Hannukah Edition

It may come as a surprise, but Abraham, the legendary religious figure revered by Judaism, Christianity, and Islam, made the first argument for the supremacy of the rule of law and against its arbitrary enforcement. A millennium before the Magna Carta, the Hebrew Bible (what we call the Tanakh) recounted Abraham’s effort to prevent God from destroying all the inhabitants of Sodom and Gomorrah. Genesis, Chapters 18 and 19.

According to the Bible, God visited Abraham to tell Abraham that his wife Sarah would soon bear him a son. As God begins to leave Abraham’s presence, God tells Abraham that God has heard the cry of Sodom and Gomorrah and that “their sin is exceedingly grievous.” Unwilling to rely on hearsay in passing judgment, God sent two angels to investigate to determine if what God had heard was true.

Fearing what that judgment may be and having family in Sodom, Abraham says to God:

23 … 'Wilt Thou indeed sweep away the righteous with the wicked?

24 Peradventure there are fifty righteous within the city; wilt Thou indeed sweep away and not forgive the place for the fifty righteous that are therein?

Abraham then argues that it is unjust to punish the innocent as if they were also wicked; that to do so is against God’s very nature.

25 That be far from Thee to do after this manner, to slay the righteous with the wicked, that so the righteous should be as the wicked; that be far from Thee; shall not the judge of all the earth do justly?

God agrees to Abraham’s request

26 And Hashem said: 'If I find in Sodom fifty righteous within the city, then I will forgive all the place for their sake.'

Abraham continues to ask God to forgo punishing the wicked to spare a smaller and smaller number of the innocent and each time God agrees to save the many for the sake of the few.

27 And Abraham answered and said: 'Behold now, I have taken upon me to speak unto the L-rd, who am but dust and clients.

28 Peradventure there shall lack five of the fifty righteous; wilt Thou destroy all the city for lack of five?' And He said: 'I will not destroy it, if I find there forty and five.'

29 And he spoke unto Him yet again, and said: 'Peradventure there shall be forty found there.' And He said: 'I will not do it for the forty's sake.'

30 And he said: 'Oh, let not the L-rd be angry, and I will speak. Peradventure there shall thirty be found there.' And He said: 'I will not do it, if I find thirty there.'

31 And he said: 'Behold now, I have taken upon me to speak unto the L-rd. Peradventure there shall be twenty found there.' And He said: 'I will not destroy it for the twenty's sake.'

32 And he said: 'Oh, let not the L-rd be angry, and I will speak yet but this once. Peradventure ten shall be found there.' And He said: 'I will not destroy it for the ten's sake.'

At the very beginning I highlighted what I believe is the origin of the principle that no one, not even God, is above the rule of law, “shall not the judge of all the earth do justly?”

Before this statement, one could argue that whatever God did was justice. But God did not save Noah and his family because they were the only innocent people on earth. Noah, his family, and the animals in the ark were needed to repopulate the earth. In the story of the flood there was no concern that the innocent would be swept away with the wicked.

But paragraphs 25 through 32 present a radically different idea of justice. Without the language, "Shall not the judge of all the earth do justly?" God's acquiescence to Abraham's pleas could simply be considered an act of grace or a favor to one of God’s favorites, but following Abraham’s framing of the question, these portions can only be understood as providing a concrete understanding of justice that even God agrees to follow.

One does not need to believe that any of this happened to appreciate the genius of those who composed this story. Talk about speaking truth to power. And what a truth. But one cannot deny the impact this passage has had on our system of justice which places the burden of proof on the prosecution and allows the wicked to go free when the state has failed to demonstrate their guilt beyond a reasonable doubt. Fundamentally, this encounter enshrines the rule of law as a core value of Western Civilization and broadens the meaning of justice to proscribe the arbitrary enforcement of the law.

Everyone, please have a safe holiday and a happy, and healthy, and prosperous New Year. And may Hashem grant peace in Ukraine and Gaza. Shalom.