Fact-Checking the Torah -- the dilemma

Now that Gd knows He’s not going to kill Adam and Chavvah, He has a dilemma.

If He ordered them not to do something, and they did it, and He can’t punish them because of due process, what about the tree He didn’t give any commandment about?

This goes to a great principle of legal systems which was implied but not expressed such that I could discuss it in the section about the legal system.

In 1813 CE a Bavarian jurist was reforming his state’s penal code and he included specifically the principle Nullum crimen, nulla poena sine praevia lege poenali, there is no crime and should be no punishment without a previously-adopted penal law.

This principle became the underpinning for legal systems in the west (and also in Japan at the end of the 19^th century) but some of them still violated it.  Most noticeably Tsarist Russia in the Mendel Beilis case of 1913, and post-Soviet Russia in the Pussy Riot case of 2012.

The Gan Eden episode illustrates this great principle in two ways.  One is the action in the story: Gd reached a dilemma over the Tree of Life about which He had not commanded Adam and Chavvah.

The second way is a principle of Jewish law, qal vachomer, which western law calls a fortiori.  Adam and Chavvah did something Gd didn’t want even after He told them not to, now all the more so they are likely to do what Gd doesn’t want since He didn’t tell them not to. 

He realizes that issuing a new commandment isn’t necessarily going to work this time any more than it did the first time.  What can He do to prevent it?

He exiles them.  He sends them out of Gan Eden, “lest he send out his hand and take also from the tree of life and eat and live forever.”

Which busts another urban legend.  Adam would have to eat from the Tree of Life to live forever.  He was not created to be immortal.  He would have died anyway even if he had never eaten from the Tree of Knowledge of Good and Evil.  That sin did not bring death into the world.

For Jews, this story provides another layer of comfort beyond the fact that Gd observed due process.  The Jewish legal system grew up on the basis that if nobody had ruled about a thing, a court could not take action about it.  Remember when I said that if a rule exists, there is an unexpressed opposite that also applies?  It’s usually called “the exception that proves the rule,” but that’s a mis-statement.  The actual phrase is “the exception that proves that an opposite rule exists.”  In Deuteronomy 17:8-13 it says to go to the experts of those times and do what they tell you, if something is too hard for you.  But the unexpressed opposite is that if they haven’t told you anything, you can’t act on what they haven’t told you, all the more so (qal vachomer) if you haven’t gone to them and asked them to address a given issue.  Except, of course, for the 613 commandments in Torah.  Those already exist.  You can’t eat blood.  You don’t have to ask the experts, that rule was given in Torah.

Next week I will bust a bunch more urban legends.  For that, you should read Genesis 4:1-15.

© Patricia Jo Heil, 2013-2018 All Rights  Reserved