Was Abraham the World's First Jewish Legal Eagle?

Abraham's chutzpah in challenging God's authority in the case of Sodom set the stage for a long list of 'idol-shattering,' justice-seeking Jewish lawyers, Alan Dershowitz argues.

Abraham and Isaac
© Jozef Sedmak | Dreamstime.com

“Abraham: The World’s First (But Certainly Not Last) Jewish Lawyer,” by Alan M. Dershowitz, Schocken, 188 pages, $26

In a recent New York Times interview, the science writer Matt Ridley described the Bible as a grimly tedious and “messy compilation of second-rate tribal legends and outrageous bigotry.” But as many perhaps more open-minded readers know, important moral truths can be extracted from stories, true or not, first-rate or not – and the Bible is filled with countless rich and complex stories. If Ridley (despite his hyper-literal atheism) were to read Prof. Alan Dershowitz’s latest book, “Abraham,” even he might give the Hebrew Scriptures another look.  

Unless one is a biblical literalist, it doesn’t actually matter whether Abraham really existed. For Dershowitz, an internationally renowned Jewish attorney, and no literalist, Abraham, as mythical figure or historical actor, was not only the world’s first Jew, he was also the world’s first Jewish lawyer – but, as the title says, “certainly not the last.”

The author of 30 books, Dershowitz makes his case by using and reusing (too often, I think) the example of Abraham’s argument with God on behalf of the apparently doomed sinners of Sodom and Gomorrah. The patriarch not only argued, but like a good lawyer, negotiated: If 50 innocent people will stop You from completely sweeping away the entire population, why not 45 or 40? Abraham, even while expressing self-abasement before so powerful a figure (a behavior not unknown to lawyers, who in many cases know they are walking a fine line in suggesting things to judges), shows great courage and bargaining skill in ratcheting the number down to 30 while holding back the final, smaller number of 10.

Abraham, who as a young man had created something of a precedent for later behavior when he shattered the idols sold by his father, not only challenged God’s authority, he questioned the Creator’s morality. According to Dershowitz, Abraham said, “How dare You, the Judge of all the world, not Yourself do justice?” That seems too strong a translation compared to the more standard, “Far be it from you to do such a thing Will not the Judge of all the earth do justice?”

Dershowitz apparently likes the more audacious word “dare,” so that he can suggest that Abraham, in speaking to God in this manner, demonstrated “chutzpah” – an essential characteristic often associated with Jewish lawyers (and incidentally the title of one of Dershowitz’s other books).

Dershowitz claims that Abraham’s chutzpah in trying to save Sodom and Gomorrah “established” moral principles. Perhaps. But Abraham’s challenge to God’s authority, powerful though it may have been, can be seen as an isolated incident, and not representative of Abraham’s behavior toward the innocent. After all, he seemed to have little or no problem with having his wife Sarah taken into Pharaoh’s harem, or later in giving Sarah explicit permission to abuse their slave-girl, Hagar.

Dershowitz, however, admits to only one, though needless to say, enormously chilling exception to Abraham’s “protecting the innocent”: the Akeda, or “binding” of his son Isaac in preparation for sacrifice.

In any case, Abraham’s dramatic example of challenging authority in the instance of Sodom, was carried forward, according to Dershowitz, by a long line of Jewish lawyers, starting with Joseph a “legal” adviser to Pharaoh (something of a stretch by Dershowitz) and continuing right through to Supreme Court Justice Ruth Bader Ginsburg.

Begin and Brandeis

Along the way, from ancient history to the present, Dershowitz gives us mini-portraits of lawyers, who like Abraham, were “idol shatterers”: Zionists Ze'ev Jabotinsky and Menachem Begin, for example, who helped shatter the “idol” of British colonialism. We are also introduced to a number of legal “advocates” who were not necessarily idol shatterers, but were, again like Abraham, lawyers who contended with authority. Here Dershowitz features Louis Brandeis, who argued about numbers and weighed costs and benefits, and who by gathering empirical evidence in support of progressive legislation, “revolutionized Supreme Court advocacy on behalf of the public interest.”

Here, too, is Rene Cassin, the Jewish lawyer who, after losing many of his relatives in the Holocaust, went on to win the Nobel Peace Prize in 1968 as the primary drafter of the Universal Declaration of Human Rights. In the small section devoted to Cassin, Dershowitz, with some justice, focuses much less on the Nobel Prize winner than on the subject of human rights. But he is even more interested in how the United Nations, and much of the rest of the world, fails to apply the principles of the Universal Declaration well, universally.

This is especially true, Dershowitz argues, when it comes to Israel. He lists a half-dozen or more countries whose desperate civilians the UN failed to help, while instead focusing its time and attention on Israel, condemning the Jewish state “more frequently and more harshly than all the other nations of the world combined.”

As in so many of Dershowitz’s books, the author makes “The Case for Israel” (another of his titles) – almost as obsessively as the UN does the opposite.

Dershowitz includes Jan Karski as an “honorary Jewish lawyer” because the Pole was prepared to risk his life to protect the Jews of his country during World War II. Using Karski may also have been a way for the author to get at Supreme Court Justice Felix Frankfurter, who is featured in a section of the book entitled “Collaborators, Facilitators, and Court Jews.”

Attorney and law professor Alan Dershowitz
Reuters

Dershowitz, who is the Felix Frankfurter Professor of Law at Harvard University, insists that Frankfurter’s reluctance to introduce Karski to President Franklin D. Roosevelt makes the justice a “court Jew,” or one who was unwilling “to argue forcefully with authority” to protect the innocent in the tradition of the early Abraham. And without substantiation, he puts Frankfurter among a group of Jewish American leaders who “appeared willing to sacrifice their European brothers and sisters in order to show their faith in the Roosevelt strategy of keeping our gates closed to refugees so as not to alienate his anti-Semitic supporters in Congress, in the State Department and among the general public.”

There is too much in this controversial and misleading paragraph to deal with here, but I think it is a careless exaggeration. Dershowitz compounds the exaggeration by including Frankfurter in the same section of “Abraham” which deals with Bruno Kreisky, the virulent, anti-Semitic Jewish lawyer who “admired Nazis and Palestinian terrorists” and became chancellor of Austria in 1970.

I suspect that Dershowitz rants about this kind of thing as a disclaimer: You don’t have to be Jewish (Karski) to be a moral lawyer, and not all Jewish lawyers are moral.

Dershowitz, as I’ve mentioned, concedes that even Abraham, in failing to argue with God when commanded to sacrifice his beloved son Isaac, acted immorally – as did God, not for the first nor last time. There are innumerable, often brilliant midrashim which attempt to let Abraham and God off the hook, but in Genesis itself it is crystal clear that our very first Jew, admittedly in an incident as isolated as Sodom, was willing to follow in blind faith the outrageous orders of a higher power.

Whatever else they are, the Sodom and the Akeda stories demonstrate inconsistencies in ways of relating to God that are simply irreconcilable.

To good effect, Dershowitz quotes the modern commentator Rabbi Dr. Donniel Hartman, who tells us that “the diversity of opinion present in the Jewish tradition on this issue” may reflect the deep “intent of the Bible” to have Abraham embody both the willingness, indeed the duty, to argue, as well as the compulsions of religious fundamentalism. That there are two Abrahams has profound practical implications for how religion will “respond to the moral challenges of modernity.”

The reader is moved in this section of Dershowitz’s book to ask whether religion will follow the Abraham who is obligated by his conscience to argue with authority, or Abraham the religious fundamentalist, who is willing to do horrific things because God commands it – suicide bombings by Muslims in the name of jihad, or murder by Jews of non-Jews in the name of God’s promise of a Greater Israel. The 25 pages in which such questions are raised make the book well worth reading.

A contentious people

At the center of this slim volume, however, is Dershowitz’s argument that after decades of discrimination, there developed a “disproportionate success” for Jewish attorneys in nearly every aspect of the law. He admits that he has no singular explanation for this phenomenon, but it helps to know, he says, that over the centuries Jews themselves, and now the State of Israel, have been on trial, or worse, too often and unjustly. There was also an important niche for Jewish attorneys left by the law firms that had refused to hire Jews in the past.

Yet another reason Dershowitz offers for the disproportionate number of Jewish lawyers is the old but useful stereotype that Jews were People of the Book and contentious to boot (think Talmud).

There is in “Abraham,” as in much of Dershowitz’s work, a great deal that is self-referential – many allusions to cases in which he has been involved, for example, and references to the books he has written. He also uses himself as a model of “lawyering Jewishly.” This is very different, he says, from lawyers who happen to be Jewish, but are not especially informed by their heritage in the way they try cases.

As an example of the type of professional whose work is not influenced by his Jewishness, Dershowitz uses Sandy Koufax, the great Brooklyn and (sigh, Los Angeles) Dodger pitcher who was Jewish and celebrated as such, especially after he refused to pitch on Yom Kippur – in a World Series game, no less. But Koufax’s Jewishness had nothing to do with the way he pitched. There was nothing Jewish about his unique use of a four-seam fastball or an overhand curve.

In short, Koufax did not play baseball Jewishly, but Dershowitz, by his own lights, does practice law that way. His work, he says, was saturated in concepts like “repair the world,” “have compassion for the downtrodden,” and “Justice [, Justice] shalt thou pursue.”

Dershowitz also rightly claims (though this need not have any connection to Abraham) that he, and a disproportionate number of other Jewish lawyers, have been involved in pro bono representation and cause-oriented litigation.

Although the author thinks that the influence of Jewish lawyers and the tradition of Jewish law have become an important part of the American legal system, he concludes with this unfortunate and jarring, chauvinistic sentence: “Just as an America with far fewer Jews will be a less creative and compassionate place, an American legal profession with far fewer Jewish lawyers will be a less creative and compassionate profession.”

“Abraham” contains valuable questions and ways of looking at moral and legal issues “Jewishly,” but for Dershowitz’s final point to be sustained, another much longer book is required – one which, given the author’s biased and apparently already determined conclusion, would hardly be worth the effort.

Gerald Sorin is distinguished professor of American and Jewish Studies at SUNY New Paltz. His most recent book is "Howard Fast: Life and Literature in the Left Lane."