CAIN’S INNOCENCE

If the Hebrew Bible employs narrative to convey models of moral respon­sibility the early rabbis turn to midrash, a kind of playful and creative interpretation of biblical narrative to impart their own moral lessons While there are no rabbinic tracts which discuss philosophy or theology overtly rabbinic interpretations of narratives in the Hebrew Bible often reveal much about how the rabbis reconceived ideas of guilt and responsibility especially in those instances in which interpretations diverge significantly from the apparent sense of the original text.

In responding to the narrative of Cain and Abel rabbinic midrash creates a kind of‘‘reasonable doubt,” suggesting that Cain's guilt may be mitigated by a number of variable circumstances The rabbinic readings primarily address the peculiar punishment that God levies upon Cain:

¹³Cain said to the LORD ‘‘My punishment is greater than I can bear! ¹⁴Today you have driven me away from the soil and I shall be hidden from your face; I shall be a fugitive and a wanderer on the earth and anyone who meets me may kill me.” ¹⁵Then the LORD said to him ‘‘Not so! Whoever kills Cain will suffer a sevenfold vengeance.” And the LORD put a mark on Cain so that no one who came upon him would kill him (Genesis 4:13-15)

The ‘‘Mark of Cain'' is far from a badge of shame - it is a protective sign a warning to all who would lay a hand upon him that they will be punished ‘‘sevenfold '' Thus Cain's punishment consists specifically of a kind of protective exile rather than a complete exposure to the elements The difficulty with this sentence however is that it flies in the face of the biblical principle of equal and corresponding retribution Only several chapters far­ther in Genesis God commands Noah the lex talionis: he who murders shall be put to death (Genesis 9:6) Why does Cain merit special protection from death when he has brazenly shed innocent blood? Why does Cain escape from capital punishment?

An anthology of rabbinic commentaries Midrash Genesis Rabbah, addresses this problem by uncovering subtleties in the biblical text that may be read ‘‘against the grain” that may indicate a counter narrative in which Cain is no longer the exemplary guilty subject In other words the rabbinic readings justify Cain’s lenient punishment by suggesting that though he has indeed killed Abe) he does not bear the full weight of responsibility.

One midrash relates a parable in which Cain and Abel are cast as two wrestlers fighting for sport in front of a king:

R. Simeon b. Yohai said: It is difficult to say [the following], and the mouth cannot utter it plainly: Think of two athletes wrestling before the king; had the king wished he could have separated them But he did not so desire and one overcame the other and killed him [the victim] crying out [as he died], “Let my cause be pleaded before the king!” Thus the voice of your brother’s blood cries out against me. (Genesis Rabbah 22:9)

In this scenario the murder victim’s cry is seen as an indictment of the king - the parable’s figure for God The midrash's reading is based on the pho­netic similarity between the Hebrew preposition in the biblical text (elai) and another related Hebrew preposition (alai). The biblical text reads ‘‘the voice of your brother's blood cries to me'' - elai The midrash however notes another phonetic resonance in the text: ‘‘the voice of your brother's blood cried against me'' - alai Thus the midrash depicts God no longer as the removed arbiter of good and evil but as an integral player in the events that unfold God's warning to Cain which interrupts the narrative to make clear Cain's awareness of right from wrong also serves to highlight God's participation in the entire scenario If God could warn Cain could foretell a coming disaster could he not also have prevented it?

Indeed the gravity of the entire murder scene is greatly diminished in this parable Viewed from God’s perspective the jealousies of Cain and Abel are no more than a sporting match Just as God could have quickly put an end to the struggle he is also implicitly responsible for initiating it The scenario of the parable has two athletes wrestling ‘‘before the king’’ - presumably for the king’s entertainment Did God instigate the fight between Cain and Abel by accepting Abel's sacrifice and rejecting Cain's? And perhaps more dis­turbingly could he have done so for nothing more than sport? The Hebrew Bible's contention as John Barton articulates that ‘‘human beings are responsible agents not the playthings of God” is here inverted by the rab­binic midrash; as playthings of God the responsibility of human beings for their criminal and sinful actions is greatly mitigated In fact, Alan Dersho­witz discusses this rabbinic comment from a legal perspective and concludes even within the strict definitions of common law Cain’s guilt ought to be minimized He writes ‘‘it becomes understandable why God would mitigate Cain’s punishment Provocation has traditionally been recognized as a mit­igating consideration” (Dershowitz 2000, p.

Hence this parable shifts responsibility for Abel’s murder from Cain and towards God himself (the audaciousness of which is not lost on R Simeon b. Yohai, who prefaces his comment with the phrase ‘‘the mouth cannot utter it plainly’’) In attaching this parable to the biblical words ‘‘the voice of your brother’s blood cries out to me’’ the midrash effects more than a mere sound pun God does not invoke his omniscience when he confronts Cain; instead he calls attention to the damning physical evidence of Abel’s blood, spilled on the ground R Simeon b Yohai’s reading of this particular verse indicates that the condemning evidence need not point in only one direction: it indicates beyond a shadow of a doubt the brute fact of murder, but it does not - and cannot - assign responsibility.

Such an approach to guilt insists that responsibility for evil acts is contextual or relational a theory of responsibility and punishment which has gained prominence among recent legal and moral philosophers Alan Norrie for example criticizes traditional (Kantian) notions of ‘‘a blameworthy individual,... a choosing being whose actions are morally untrammeled by the influence of character or society’’ (2000, p. 94) Only by positing such an individual can a justice system freely punish ‘‘a formal legal subject whose actions are judged in isolation from the substantive moral context in which she acts’’ (Norrie 2000, p. 95) While this ‘‘choosing’’ ‘‘blameworthy’’ legal subject undoubtedly characterizes the biblical writer’s understanding of Cain Norrie’s alternative more closely describes the approach of R Simeon b Yohai He writes

Responsibility exists both in and beyond individual moral agents in the same moment. Responsibility is contemporaneously shared between the individual and the ‘significant others’ in her community or communities and indeed with those communities them­s_el_ves (2000, p. 201)4

God’s culpability for Cain’s murder results from his specific participation in the individual and particular lives of Cain and Abel his acceptance and rejection of their offerings casting himself as a ‘‘significant other’’ in their lives The archetypical nature of this story however insists that its lessons be generalizable The midrash does not speak directly of a deity but of a king a human being whose position in society is most privileged R.

A further midrash insists as well that Cain’s guilt for Abel’s murder is not as full and weighty as the biblical text attempts to render it Rather than commenting on the presentation of evidence as R Simeon b Yohai does this midrash by R. Judah addresses several problems inherent in Cain’s unusual punishment First, a simple difficulty relates to biblical continuity: according to Genesis Chapter 3, Cain and Abel were the only children of Adam and Eve the first man and woman Of whom then is Cain afraid as he wanders the uninhabited earth? What sense can be made of his com­plaint, ‘‘anyone who meets me may kill me?’’ (Genesis 4:14) Second God responds by promising sevenfold vengeance on anyone who dares kill Cain but to whom does he address this warning? In the biblically construed dialogue this assurance is made to Cain alone; if this is the case how could the promise of such recompense in any way act as a deterrent to violence? R. Judah provides a setting for the conversation between God and Cain in order to fill these narratological gaps:

R. Judah said: The cattle beasts and birds assembled to demand justice for Abel’s blood Said the Holy One blessed be He to them ‘I say to you whosoever slays Cain, vengeance shall be taken on him sevenfold.’’

In this midrash R Judah imagines not the wanton killing of a wandering homeless Cain by other humans but rather a demand for justice by the only other beings around - all the animals that roam the earth In this fable-type scenario the avenging of innocent blood the lex talionis is depicted as inherent in the natural order; nature steps in to demand justice when God seems to arbitrarily prevent Cain from receiving his deserved punishment But God then turns to the animals according to R.

The question that remains which was articulated above - what reason did God have for his bewildering leniency towards Cain? - is confronted by R Nehemiah who comments on R Judah’s midrash:

R. Nehemiah interpreted: Cain’s judgment shall not be as the judgment of other mur­derers Cain slew but had none from whom to learn; but henceforth all who slay shall be slain. (Genesis Rabbah 22:12)

R. Nehemiah explains that Cain as the first murderer in history deserves a special judgment because he ‘‘had no one from whom to learn”; in other words he could not have fully understood the consequences of his mur­derous act Again Dershowitz elucidates in legal language that ‘‘this def­ense is an early variant on what eventually became the McNaughton rule of legal insanity which exculpates a person who does not understand ‘the nature and quality’ of his act or know that it is ‘wrong’” (Dershowitz, 2000, p. 52).

But Dershowitz himself recognizes that this excuse does not adequately apply to Cain’s case:

There are several problems with this argument First the legacy left to Cain by his parents [Adam and Eve] included knowledge of right and wrong and anyone with such knowledge understands it is wrong to murder We refer to crimes such as murder as malum in se - wrong in themselves inherently wrong No criminal statute is required to tell a civilized person that it is wrong to kill.... Finally God did warn Abel, though not specifically about murder.... (2000, p. 53)

While Dershowitz uses this reasoning to dismiss R Nehemiah’s argument outright and insist upon the unfairness of Cain’s lenient punishment (he argues that Cain literally ‘‘gets away with murder’’), the midrash is perhaps better understood as making a more nuanced argument than the invocation of the insanity defense Even though God warns Cain in the biblical narrative that ‘‘sin lurks at the door ’’ R Nehemiah argues that a prerequisite for the assignment of unmitigated guilt is not just a formal understanding of right from wrong but a real knowledge an experiential or historical knowledge of what transgression is and what kind of punishment will ensue In R.

The midrash continues by asserting that after Cain a precedent has been set: ‘‘henceforth all who slay shall be slain. ’’ R. Nehemiah thus trans­forms this question of guilt which requires immediate personal knowledge - into a statement of law: the creation of a rule and a precedent Hence, while R Nehemiah claims that Cain cannot be held fully responsible for his crime he skirts the issue of subsequent criminals’ individual responsibility entirely by simply declaring that now that a precedent has been set we may consider murderers guilty and punish them appropriately Contrary to Dershowitz’s evocation of natural law that murder is malum in se R Nehemiah allows us to witness the creation of legislation the moment of deciding future criminal responsibility R Nehemiah absolves Cain and refuses to engage in the question of the moral guilt of future criminals, opting for legal guilt instead.

Another series of parables in the midrash blur the line between a legal definition of guilt and the assignment of full, moral responsibility They describe three different situations in which the guilt of a perpetrator is clearly communicated to an onlooker through incontrovertible physical evidence While the parables appear to highlight the absurdity of Cain’s protestations of innocence in the face of such clear proof of his murderous act they simultaneously confuse the assignment of guilt that ought to result from such unambiguous signs:

And the Lord said unto Cain: where is Abel, etc.

(1) This may be compared to a prefect who was walking in the middle of the road and found a man slain and another standing over him ‘Who killed him?’ he demanded. ‘I will ask you [that question] instead of your asking me’ rejoined the other ‘You have answered nothing’ he retorted.

(2) It is like the case of a man who entered a garden and gathered mulberries and ate them The owner of the garden pursued him demanding ‘What are you holding?’ ‘Nothing’ was the reply ‘But surely your hands are stained [with the juice]!’ Sim­ilarly [God said to Cain] the voice of your brother’s blood cries to me from the ground.

(3) Again it is as if a man entered a pasture ground seized a goat, and slung it behind him The owner of the pasture pursued him demanding ‘What have you in your hand?’ - ’Nothing.’ ‘But it is bleating at your back!’ he exclaimed Similarly [God said to Cain]: the voice of your brother’s blood cries to me from the ground. (Genesis Rabbah 22:9)

These parables compare Cain’s situation to those in which incriminating evidence is more than persuasive; in fact, the obviousness of the denier’s guilt increases in intensity with each subsequent parable In the first parable, the evidence of the murder is apparent, but the assignment of guilt is entirely circumstantial - a man has been seen alive and then he is seen dead with another man standing over him Nonetheless the events of the murder can easily - and acceptably - be assumed because the circumstantial evidence is so overwhelming: no one else is present to have committed the crime except the man who is standing over the body And yet the accused denies his act by answering the onlooker’s question with another question much as Cain responds to God’s inquiries Nevertheless it appears from the end of the parable as though the perpetrator is caught: ‘‘you have answered nothing’’ the witness retorts dismissing the man’s attempt at evasion

The second parable creates even more tension by invoking some direct evidence of the theft of mulberries - the hands of the perpetrator stained red with berry juice Even though the onlooker has not seen the actual theft, and even though the stolen items are not themselves found a direct link between the perpetrator and the crime is visible and manifest Even in spite of the presence of this evidence the perpetrator denies his act This is more brazen than in the parable above in which there remains no direct link between the perpetrator and the crime This parable suggests that Cain not only denies his murder of Abet but he does so even more audaciously in the presence of Abel’s blood spilled on the ground Therefore the parable ends with the quotation from the biblical passage ‘‘your brother’s blood cries to me from the ground’’

The final parable once again furthers the one that precedes it: in this case not just evidence of the item but the stolen item itself remains in the possession of the perpetrator A man has stolen a goat is confronted and tries to deny his deed despite the very presence of the stolen item Though it is hidden from sight, its bleating makes its presence known and the ques­tioner can clearly link the perpetrator to his crime In this parable the connection to the biblical passage is somewhat more abstract; the bleating is connected to the voice of Abel’s blood which ‘‘cries from the ground’’ According to this interpretation Cain may have killed Abel but he has not silenced him Cain’s protestations of innocence come not only in the face of circumstantial or physical evidence but also the plaintive testimony of his victim

All of these parables suggest the absurdity of Cain’s protestations of innocence in spite of the obviousness of his guilt - he should have recognized that God would certainly be perfectly aware of his unspoken deed What is unusual, however is that no appeal is made throughout this midrash to God’s unique divine qualities or indeed his omniscience The rabbinic com­mentary instead casts God as a mere character in a juridical drama; God is analogized in each parable to a witness who must rely on evidence to reconstruct events and assign guilt

In subjecting Cain’s murder to human scrutiny the rabbinic scenario contrary to the biblical version suggests that Cain’s guilt is never estab­lished with divine certainty In fact each parable presents not only a human encounter but a confrontation between two individuals of equal standing; the perpetrator is not confronted by a court of law or even multiple people in a public square Therefore though in each case the witness may be utterly convinced of the guilt of the person he confronts guilt is never proven or even acknowledged by the suspect The reader is led to wonder what may happen after these confrontations as only a sole witness can verify the course of events

In fact, another rabbinic story which closely resembles these parables evidently intends to depict the helplessness of a single witness to a crime in establishing the perpetrator’s guilt:

Simeon ben Shetah said: May I see the consolation if I did not see someone run after his fellow with a sword in his hand The man went before him into a ruin and the [pursuer] ran in after him and then I came in right after him and found [the victim] slain with a knife in the hand of the murderer dripping blood I said to him ‘You evil person! Who killed this one? May I see the consolation if I did not see him [run in here]. Either you killed him or I did! But what can I do to you? For your case is not handed over to me. For lo, Scripture has said “At the testimony of two witnesses... shall he who is on trial for his life be put to death’“ [Deut 17:6]’. (t. Sanhedrin 8:3)

In this rabbinic passage Simeon b Shetah describes an incident in which a man runs into a ruin - a place known to be isolated - and another man runs after him sword in hand Though the other character Simeon b Shetah does not witness the murder itself he is left with no doubt as to the identity of the murderer after seeing all the circumstantial and direct evidence of the crime But he reluctantly admits that the man’s guilt will never be proven in a court of law and it will never be certain to anyone but himself: Simeon b. Shetah’s rhetorical statement to the murderer ‘‘either you killed him or I did!’’ identifies the precise quandary any trier of fact would find herself in when hearing this case - the dilemma of one person’s word against anoth­er’s Hence the biblical requirement cited by Simeon b. Shetah that at least two witnesses are needed to establish the facts of a crime and assign guilt

All of the parables above hint at the same problematic ambiguity found in the Simeon b. Shetah story; it is made explicit in the first parable when the murderer responds to the prefect’s question of ‘‘Who killed him?’’ with ‘‘I will ask you [that question] instead of your asking me!’’ The perpetrator’s response indicates his awareness of the difficulty others’ would have in identifying the murderer: if any other person were to pass by both the murderer and the prefect would be seen ‘‘standing over the body ’’ and the guilty party would no longer be discernable The midrash’s relating of two other parables implies that this undecidability of guilt applies whenever there is only one witness to a crime regardless of how much evidence is present

If R. Nehemiah’s midrash subordinates the objectivity of guilt to the establishment of legal precedent, these parables similarly de-emphasize the importance of determining absolute guilt when the knowledge or cer­tainty of an individual’s responsibility can never be sufficiently known or proven The rabbis leave aside the biblical idea of divine insight into the transparent human heart and instead highlight the confusion about guilt that characterizes the human world - one often cannot even distinguish between the innocent bystander and the murderer Even if there are in fact instances in which guilt is incurred entirely by one individual (rare cases, indeed) what use is this theoretical ‘‘absolute moral guile” the rabbis ask if it can never be absolutely perceived or proven in the human world?

The rabbinic readings of Cain’s crime and punishment demonstrate the rabbinic challenge to the very notion of guilt as a determinate concept The biblical narrator emphasizes that Cain may either choose evil or choose to overcome it and therefore holds him solely responsible for his crime when he chooses evil Several rabbinic interpreters are not convinced however that responsibility need fall entirely upon the perpetrator R. Nehemiah remarks that Cain did not deserve the death penalty because he could not fully understand the enormity of his crime R Simeon b Yohai lessens Cain’s guilt by impugning God himself as an eye-witness who could have intervened before Abel was killed but instead chose to remain silent, allowing him to die The anonymous authors of a series of parables question whether a guilty party can ever be positively identified By calling into question the guilt of the Bible’s paradigmatic murderer the rabbis implicitly raise questions about whether anyone at any time can truly be considered guilty.

Although the rabbis were framers of a legal system which must clearly demarcate between guilt and innocence they nonetheless seem not to have required an absolute approach to the concept of guilt An accused may meet legal standards for a guilty conviction and receive proper punishment according to rabbinic texts.⁵ But at the same time the very framers of these legal standards may admit that a legal conviction does not correlate to absolute moral guilt that the neatness of a courtroom naming of the guilty party does not allow for the shading and sharing of guilt that any action or even inaction engenders Indeed not even God according to the midrash, can cleanly divide the innocent from the guilty The concept of guilt is thus used by the early rabbis to both define and challenge legal and moral categories allowing for moral ambiguity alongside definitive legal decisions

NOTES

1. For a full exploration of the “reflexivity” of sin and punishment in the Hebrew Bible see Koch (1983).

2. For some discussion on this topic see Hart (1970)

3. The Masoretic (Hebrew) text of the Bible omits the first occurrence of the phrase ‘‘let us go out into the field” but it is widely accepted by biblical scholars that the omission is merely a scribal error (Speiser, 1964, pp. 30-31).

4 Indeed Alasdair MacIntyre (1981 p 33) points out that the pre-modern con­ception of the self is one in which ‘‘it is through his or her membership in a variety of social groups that the individual identifies himself or herself and is identified by others.... They are part of my substance... This is opposed to a modern “emotivist” understand of the self in which ‘‘everyone can be a moral agent since it is in the self and not in social roles or practices that moral agency has to be located” (p. 32). Jonathan Sacks (1993 pp 154-147) specifically opposes this view of the self with the Jewish and even biblical understanding which sees the self as deriving its moral agency from the will of God; though he is certainly correct in his assertion that moral obligation derives from God in the biblical world view the moral agency is none­theless in the particular instance of Cairn seen to reside entirely with a self who is able in MacIntyre’s words ‘‘to stand back from any and every situation..and to pass judgment on it from a...point of view that is totally detached from all social particularity” (1981 pp 31-32).

5Many scholars have noted that rabbinic legislation for capital punishment entailed so many safeguards to protect the accused that no one could have ever conceivably been convicted; see for example the classic article by Blidstein (1965) Nonetheless the rabbinic legislation (whether theoretical or not) never abdicated the responsibility of developing a system of objective criteria by which an individual could be prosecuted and sentenced revealing that the rabbis refused to give up on the idea of individual responsibility altogether

REFERENCES

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Eichrodt, W. (1983) Faith in Providence and theodicy in the Old Testament In: J. L. Crenshaw (Ed.) Theodicy in the Old Testament (pp 17-41) Philadelphia: Fortress Press.

Hart, H. L. A (1970) Punishment and responsibility: Essays in the philosophy of law. Oxford: Clarendon

Koch K. (1983) Is there a doctrine of retribution in the Old Testament? In: J. L. Crenshaw (Ed) Theodicy in the Old Testament (pp 57-87) Philadelphia: Fortress Press

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