Due Process and Legal Authority in the Garden of Eden: Jurisprudence in Aggadic Midrash

Jewish Law Annual, Vol. 16, p. 185, 2006

9 Pages Posted: 21 Jul 2006

See all articles by Timothy D. Lytton

Timothy D. Lytton

Georgia State University College of Law


Occasionally, rabbinic commentary on the Bible employs legal imagery to interpret stories that, at least on the surface, do not deal with law or legal themes. For example, a handful of rabbinic comments imagine divine judgment within the context of formal legal proceedings when interpreting the Genesis stories of Adam and Eve, Cain and Abel, Sodom and Gomorrah, and the Binding of Isaac. These scattered comments offer insights into jurisprudential issues such as the importance of procedural fairness and the nature of legal authority.

This essay examines one such example of rabbinic jurisprudence in a midrash on the Garden of Eden story - in particular, on God's punishment of the serpent. The midrash points out that in the story God interrogates both Adam and Eve before punishing them and offers them each an opportunity to provide an excuse for their transgression. God does not, however, similarly interrogate the serpent or give him any chance to make an excuse, thereby denying the serpent due process. The midrash speculates that God denies the serpent an opportunity to speak out of a desire to suppress what the serpent would have said in his own defense. Some statements, it seems, are so subversive that suppressing them is more important than procedural fairness.

The suggestion that God perceives a need to suppress subversive statements exposes the fragility of divine authority in the garden, a fragility that is also characteristic of human political and legal authority in the early stages of a new regime or in the face of rebellion. As we shall see, the serpent does not threaten God's power to impose His will by force, but he does undermine God's ability to project that power through commands and rules, which require obedience in order to be effective. That is, the serpent's potential legal defense poses a threat to the authority of divine law.

By suggesting that God suppressed the serpent's defense, this midrash exposes a tension between due process and legal authority. On the one hand, due process requires that those accused of crimes be given an opportunity to respond to the charges against them. On the other hand, when they use that opportunity to challenge the legal system, this weakens the authority of the law and the officials who exercise power under it. Judges thus face a dilemma over whether to silence defendants who seek to use their trials as a means to attack the legal system: should they uphold due process or protect legal authority? The midrash offers no easy solutions. Instead, it seeks to elucidate the sources of this tension between due process and legal authority, to deepen our appreciation of its complexity, and to expose the inevitable shortcomings of rulings that judges must make in individual cases. The midrash aims to advance debate rather than settle it. It is this tendency to explore rather than to resolve tension, a characteristic of the genre of midrash known as aggadic midrash, that makes this particular midrash, and others like it, a rich source of jurisprudential insight.

Keywords: Bible, Midrash, Jewish Law, Jurisprudence

Suggested Citation

Lytton, Timothy D., Due Process and Legal Authority in the Garden of Eden: Jurisprudence in Aggadic Midrash. Jewish Law Annual, Vol. 16, p. 185, 2006, Available at SSRN: https://ssrn.com/abstract=918160

Timothy D. Lytton (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

HOME PAGE: http://law.gsu.edu/profile/timothy-d-lytton/

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