Part of the Jewish Encounter series
One of the world’s best-known attorneys gives us a no-holds-barred history of Jewish lawyers: from the biblical Abraham through modern-day advocates who have changed the world by challenging the status quo, defending the unpopular, contributing to the rule of law, and following the biblical command to pursue justice.
The Hebrew Bible’s two great examples of advocacy on behalf of problematic defendants—Abraham trying to convince God not to destroy the people of Sodom, and Moses trying to convince God not to destroy the golden-calf-worshipping Children of Israel—established the template for Jewish lawyers for the next 4,500 years. Whether because throughout history Jews have found themselves unjustly accused of crimes ranging from deicide to ritual child murder to treason, or because the biblical exhortation that “justice, justice, shall you pursue” has been implanted in the Jewish psyche, Jewish lawyers have been at the forefront in battles against tyranny, in advocating for those denied due process, in negotiating for just and equitable solutions to complex legal problems, and in efforts to ensure a fair trial for anyone accused of a crime.
Dershowitz profiles Jewish lawyers well-known and unheralded, admired and excoriated, victorious and defeated—and, of course, gives us some glimpses into the gung-ho practice of law, Dershowitz-style. Louis Brandeis, Theodor Herzl, Judah Benjamin, Max Hirschberg, René Cassin, Bruno Kreisky, Ruth Bader Ginsburg, and Irwin Cotler are just a few of the “idol smashers, advocates, collaborators, rescuers, and deal makers” who helped to change history. Dershowitz’s thoughts on the future of the Jewish lawyer are presented with the same insight, shrewdness, and candor that are the hallmarks of his more than four decades of writings on the law and how it is (and should be!) practiced.
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The Jewish Lawyer
Abraham, the world’s first Jew, was also the world’s first lawyer, arguing with God on behalf of the doomed sinners of Sodom. He was thus the first in a long line of Jewish lawyers. Joseph soon followed, serving as a counsel to the powerful, as many Jewish lawyers have done since. Then came Moses, who was not only a lawgiver but also an advocate on behalf of Jews who had rejected him, his laws, and his God. Daniel, who in the Apocrypha serves as a defense lawyer to Susanna, perfected a technique of cross-examination that is still effectively used today. And Deborah the judge dispensed justice under a palm tree. But Abraham was the first, and this book is about him and his progeny: the numerous Jewish lawyers who—for better or worse, but in my view mostly better—have changed the world by challenging the status quo, defending the unpopular, contributing to the rule of law, and following the biblical command to pursue justice.
The story of Abraham is the account of a complex man whose actions and inactions reflect the very different archetypes of the Jewish lawyer over time and place. No one knows, of course, whether the Abraham we know from the Bible ever really existed or whether he is a mythical or composite figure. Nor would it ever be possible to challenge the biblical account of Abraham historically, because—unlike the New Testament and Qur’anic accounts of Jesus and Muhammad—it takes place well before modern recorded history. In any event, it really doesn’t matter, unless one is a biblical literalist. Neither does it matter, for purposes of this book, whether the Bible was written by the singular hand of God or by multiple human authors. What matters is that the biblical Abraham has been and remains one of the most influential characters in history, whether or not he was an actual historical figure. His story stands as a cornerstone of three great religions and has influenced, and continues to influence, billions of people. Abraham matters—to Jews, to Christians, to Muslims, and to all who study the Bible or the Qur’an. And so this book will treat the biblical narrative as gospel (or, as lawyers might put it, the transcript of testimony).
The biblical account of the patriarch of the three great “Abrahamic” religions—Judaism, Christianity, and Islam—comprises several overlapping subplots, some of which are in the text itself, while others are based on midrashic and other authoritative commentaries. Each of these subplots reflects a different characteristic of lawyers in general and Jewish lawyers in particular.
The biblical Abraham, like so many Jewish lawyers throughout history, was an immigrant. He left his “parents’ home” and, along with his nephew Lot, made aliya to a promised Jewish homeland, thus also becoming the world’s first Zionist. Like other immigrants, he changed his name—from Abram to Abraham. He also changed his religion, shattering his father’s idols (according to a midrashic addendum to the text of the Bible) and making a covenant with a new God. By destroying these icons, Abraham became the first “iconoclast,” a term applied to many Jewish lawyers throughout history who have shattered idols—both religious and secular—ever since Abraham showed the way. Why have so many Jewish lawyers broken with tradition and challenged established doctrines? Perhaps understanding Abraham will give us a clue.
Before long, Abraham challenged the authority, indeed the morality, of his new God and accused Him—as so many Jewish lawyers have accused authority—of applying a double standard of justice and acting hypocritically: “How dare You, the Judge of all the world, not Yourself do justice!” In speaking to God in this manner, he demonstrated the quintessential characteristic that has come to be associated with the Jewish lawyer: chutzpah. Indeed, the word “chutzpah” is first used to describe Abraham’s challenge to God. In the Aramaic words of the Talmud, Abraham demonstrated “chutzpah k’lapey shmaya”—chutzpah even in his dealings with the heavenly.
In later years, Jews have put God on trial for breaking His covenant with the Jewish people and for allowing crusades, inquisitions, pogroms, and the Holocaust. Although God has not fared well in these moot court proceedings, those who put Him on trial generally continued to believe in Him, as Abraham did. Others, however, lost faith in a God who could stand idly by such evil. Why did some choose Abraham’s path while others chose its opposite? Understanding Abraham may offer an explanation.
Because he argued with God on behalf of the sinners of Sodom, one would surely have expected Abraham to argue with those who would order the deaths of innocent children. But Abraham twice remained silent in the face of immoral demands that he engage in acts that risked the lives of his two innocent sons. The first demand came from his wife, Sarah, to cast out his son Ishmael—born to his Egyptian handmaid Hagar—into the wilderness, where the child faced likely death. Although the demand was displeasing to Abraham, he followed it because God told him to do whatever Sarah asked (thus invoking the stereotype of the “henpecked” Jewish husband; there is an old joke about the Jewish kid who tells his mother that he was cast in the role of the Jewish husband in a school play, to which the disappointed mother replies, “I was hoping you would get a speaking part”). God also assured him that the progeny of both Isaac and Ishmael would become great nations, and God eventually intervened to save Ishmael and Hagar.
The second immoral demand came directly from God: that Abraham offer to sacrifice his (and Sarah’s) beloved and totally innocent son, Isaac. Abraham again remained silent in the face of God’s outrageous command—a command that well deserved the rebuke Abraham had previously directed at God if He were to sweep away the innocent along with the guilty.
Suddenly Abraham, the radical iconoclast and chutzpahnik lawyer, appears to transform himself from one willing to challenge his God into a compliant fundamentalist who elevates dogma over reason, faith over morality. He willingly follows orders that will result in the death of the innocent, thereby becoming a Jew who is willing to sacrifice other Jews—indeed, his own flesh and blood—in order to remain in the good graces of an authority figure whom he fears. Abraham succeeded in that regard, earning for his refusal to speak morality to authority the praise of God’s angel: “For now I know that you fear God, since you have not withheld your son, your favored one, from Me.” Tragically, this cowering before power has characterized far too many Jewish lawyers throughout history.
This dichotomy between standing up for the rights of others—in this case the sinners of Sodom—while refusing to help fellow Jews has also been characteristic of some Jewish lawyers who have rejected the wise teaching of Hillel to balance the support for others with advocacy for one’s own people. The question is why. Perhaps by exploring the answers suggested by commentators on the Abraham story, we can begin to understand the broader paradox with regard to Jewish lawyers and leaders.
As we will see in the chapters to come, Abraham’s actions reflect other characteristics, both good and bad, long associated with the Jewish lawyer: he is clever, somewhat conniving, a good negotiator, a sharp real estate lawyer, a man who knows how to manipulate the law and the facts and how to use irony to make a point. He is also a lawyer who knows when to stop arguing—when to settle a case in order to secure a partial victory. We will see how these characteristics have become stereotypes—some positive, some negative—employed with respect to Jewish lawyers and Jews in general. When it comes to Jews, even the most positive of traits have been turned into negatives. The question again is why. Exploring in depth the complexity of the world’s first Jewish lawyer may provide some clues.
If Christianity is a religion of grace and Islam is a religion of submission, then Judaism is a religion of law. To be an observant Jew, one must obey the rules—the 613 biblical mitzvoth plus the thousands of rabbinic rules designed to build “fences” around the core prohibitions.
Jewish law is highly technical, with about half of it constituting detailed prohibitions, while the other half concocts equally detailed ways around the prohibitions—something like the Internal Revenue Code. No wonder so many Jews become lawyers. Is it in their DNA? In their religious training? In their experience? Or in a combination of these?
It is certainly in their history of being the victims of persecution. The Jewish people—individual Jews and now the nation-state of the Jewish people—always seem to be on trial for something. One prominent commentator on the Bible titled his book The Last Trial, but the “trial” of Abraham was only the first of countless trials in which the Jewish people have been placed in the dock of justice or injustice.
The Jewish people have been accused of killing Jesus. The Jews of Spain and other countries were put on trial during the Inquisition. In the Middle Ages, there were the infamous disputations, which were a form of trial. Then there were the blood libels, which were centered in Europe but extended to other parts of the world. In France, there was the trial of Alfred Dreyfus, and in America, of Leo Frank, in which individual Jews were in the dock, but the Jewish people were also on trial. During the Holocaust, European Jewry was executed without even being put on trial, while many in the world tried and condemned the victims for going “like sheep” to their deaths. During the 1930s, 1940s, and 1950s, Stalin placed many Jewish intellectuals and leaders on trial, allegedly for being cosmopolitans and nationalists but really for being Jews. In the 1960s, Hannah Arendt used the trial of Adolf Eichmann as a vehicle for placing Jewish leaders in the dock for their actions and inactions during the Holocaust (without mentioning her own love affair and rehabilitation of a leading Nazi intellectual, Martin Heidegger). During the 1970s and 1980s, many Soviet Jews were placed on trial for being refuseniks and dissidents.
Most recently, the nation-state of the Jewish people seems always to be on trial, both in the court of public opinion and before international tribunals and the United Nations.
Why have Jews been singled out—chosen?—for persecution, for trials, and for the application of the double standard? Is it because they proclaim their chosenness? Is it because they have been so successful in the most visible of professions? Is it because they have endured so many trials? Is it because for so many centuries they were incapable of fighting back? Is it now because—finally—they have a powerful nation-state that is capable of defending itself and fighting back? Is it simply because we are Jews?
Whatever the reasons, the reality is that we Jews—more than others—need advocates such as Abraham to defend us against these and other false charges. Fortunately, we have always had our defenders, generally Jewish lawyers, sometimes not. Will we continue to? Or will Jewish lawyers, like other secular Jews, begin to disappear through assimilation?
Whether because of our religious training, our history, or other factors, many Jews—it turns out—make darn good lawyers. In every nation in which Jews have had a significant presence, they have been among the leaders of the bar (as well as of other vocations, ranging from medicine to comedy). That is certainly true today in the United States, Great Britain, France, Australia, South Africa, and other Western nations. But it was also true in North Africa during the first half of the twentieth century, in Weimar Germany, in czarist Russia, and in many parts of central Europe.
We’ve had a lot of practice, as a people, in defending ourselves, but also in defending others. Jews have been at the forefront not only of the commercial bar but also of the human rights, civil rights, and civil liberties movements. We have also been leaders in the continuing effort to promote the rule of law as a universal principle of justice. It all began with the world’s first lawyer, Abraham, whose life, as narrated in the Bible, the Qur’an, and the commentaries, I now recount.
Table of Contents
Introduction: The Jewish Lawyer
The Biblical Narrative: The Lawyer Abraham
1. God Meets Abram—and So Do We
2. God Tests Abraham and Abraham Passes—at Least the First Test
3. Abraham Refuses to Argue with God and with His Wife over the Lives of His Children—Failing God’s Next Test
4. Abraham Negotiates to Buy a Burial Cave for Sarah
In the Footsteps of Abraham: Jews on Trial, as Defendants and Defenders
5. The Trial of Jesus, the Conviction of the Jews, and the Blood Libel
6. Alfred Dreyfus, Leo Frank, Rudolf Slansky, Anatoly Sharansky, and the Nation-State of the Jewish People on Trial
7. The Jewish Lawyer as Abrahamic Idol Smasher, Advocate, Collaborator, Rescuer, and Deal Maker
Epilogue: The Future of Abraham’s Descendants