Abraham and Sodom: another take

March 25

The web comic Saturday Morning Breakfast Cereal is one of the best geeky web comics out there, together with xkcd. Check out SMBC’s alternate telling of the Abraham and Sodom story. Why do I mention it? Because it’s relevant to my magnum opus, n guilty men, 146 U. Pa. L. Rev. 173 (1997), which opens with the more canonical version of the story at Genesis 18:23-32. (Note: if you can’t access the paper through JSTOR or Westlaw, here’s a free version, but it’s a previous draft.) I then write in the introduction:

“[B]etter that ten guilty persons escape, than that one innocent suffer,” said English jurist William Blackstone. The ratio 10:1 has become known as the “Blackstone ratio.” Lawyers “are indoctrinated” with it “early in law school.” “Schoolboys are taught” it. In the fantasies of legal academics, jurors think about Blackstone routinely.

But why ten? Other eminent legal authorities through the ages have put their weight behind other numbers. “One” has appeared on Geraldo. “’It’s better for four guilty men to go free than one innocent man to be imprisoned,’” says basketball coach George Raveling. However, “[i]t’s better to turn five guilty men loose than it is to convict one innocent one,” according to Mississippi’s former state executioner, roadside fruit stand operator Thomas Berry Bruce, who ought to know. “[I]t is better to let nine guilty men free than to convict one innocent man,” counters Madison, Wisconsin, lawyer Bruce Rosen. Justice Benjamin Cardozo certainly believed in five for execution, and allegedly favored ten for imprisonment, which is a bit counterintuitive. Benjamin Franklin thought “[t]hat it is better a hundred guilty persons should escape than one innocent person should suffer.” Mario Puzo’s Don Clericuzio heard about letting a hundred guilty men go free and, “[s]truck almost dumb by the beauty of the concept . . . became an ardent patriot.” Denver radio talk show host Mike Rosen claims to have heard it argued “in the abstract, that it’s better that 1000 guilty men go free than one innocent man be imprisoned,”and says of the American judicial system, “Well, we got our wish.”

Or, perhaps, the recommended number of guilty men should be merely “a few,” “some,” “several,” “many” (particularly, more than eight), “a considerable amount,” or even “a goodly number.”

Not all commentators weigh the importance of acquitting the guilty against the value of the conviction of one innocent man. A Georgia circuit court held in 1877 that it was “better that some guilty ones should escape than that many innocent persons should be subjected to the expense and disgrace attendant upon being arrested upon a criminal charge.” Moreover, in Judge Henry J. Friendly’s opinion, “most Americans would agree it is better to allow a considerable number of guilty persons to go free than to convict any appreciable number of innocent men.” It is unclear whether a “considerable” number is greater or less than an “appreciable” one.

n guilty men, then. The travels and metamorphoses of n through all lands and eras are the stuff that epic miniseries are made of. n is the father of criminal law. This is its story.

I go on to comment on the Abraham and Sodom story and related issues in greater depth:

Abraham’s celebrated haggle in the book of Genesis, allegedly written by Moses but also attributed to God, provisionally sets a value of n at (P-10) / 10, where P is the population of Sodom. As it turns out, however, no innocents were killed in the destruction of Sodom: There were only four righteous people in the city, and they were all saved, although they lost their real estate. Previously, God had killed the entire human population of the Earth because of its wickedness (except for Noah and his family) in a mass capital punishment which, although carried out without the benefits of a jury or any other due process protections, apparently also produced neither false positives nor false negatives. It is said that one day there will be another massive (post-) capital punishment, which will also produce neither false positives nor false negatives. These methods, however, may only be acceptable criminal procedure for God Himself, Who may do whatever He likes.

The best part is footnote 43, attached to the text “To date, no major religious wars have been fought over the value of n.” The footnote reads (paragraph breaks added and copious citations omitted — note that this footnote is significantly revised from the draft linked above, but is available in the full version):

There have been, however, other historical instances of numerical religious violence. In fourth- and fifth-century Antioch, Alexandria, and Constantinople, mobs rioted over numbers related to the nature of God and Christ.

First, the number of persons of God (g) was a subject of contention. After the Council of Nicaea in 325, the Trinitarian Christian Roman Empire (g = 3) persecuted the Arians (g = 1).

In addition to the g-controversy, the number of persons of Christ (p) was in dispute. After the Council of Ephesus in 431, the Orthodox Byzantine Empire (p = 1, both divine and human) persecuted the Nestorians of Antioch (p = 2, one divine and one human).

Then, once p was agreed to be 1, people came to blows over the number of natures of Christ (ch). After the Council of Chalcedon in 451, the Orthodox church (ch = 2, one Person “in two Natures”) persecuted the Monophysites of Egypt (Copts), Syria (Jacobites), and Armenia (ch = 1 and wholly divine).

Parallel to the ch-persecution was the question of the number of wills (w) of Christ, which was finally resolved when Emperor Philippikos, who held with the Monothelites that w = 1 (in conflict with the official position, adopted at the Council of Constantinople in 681, that w = 2, both divine and human), was overthrown in 713.

Broader questions, such as the number of deities (d), were also fought over. Greek Orthodox Byzantines and Western Catholics (d = 1) fought dualists (d = 2) such as Paulicians from the seventh to the ninth centuries, Bogomils in the 12th and 13th centuries, and Cathari in the 13th century. Zoroastrians (d = 2) persecuted Jews (d = 1, big time), Christians (d = 1), Hindus (d = a whole lot), and others, including, unaccountably, Manichaeans, even though these also believed that d = 2 (evidently, the wrong two). Zoroastrians were then persecuted by Muslims (d = 1). What goes around comes around.

Also noteworthy are 17th-century Russian religious debates as to how many fingers one should cross oneself with (f) and how many times one should say “Hallelujah” in the liturgy (h) (new style f = 3, h = 3 v. Old Believer f = 2, h = 2). Archpriest Avvakum (Habakkuk), a prominent Old Believer, was burned at the stake in 1682, and persecution of Old Believers continued into modern times.

Thanks to SMBC, read the whole thing! (Remember that this version is a more-or-less complete draft, but is missing some parts, like the juicy footnote above, but if you can access 146 U. Pa. L. Rev. 173 (1997), that will be better.)

I’ll close on a more serious literary note and point you to Anna Akhmatova‘s poem “Lot’s Wife”, based on the aftermath of Abraham’s haggle, described in Genesis 19:26: “But his wife looked back from behind him, and she became a pillar of salt.” If you can read Russian, the original is here. If you can’t, here’s my translation:

Lot’s Wife

Behind the Lord’s angel, enormous and shining,
The righteous man followed along the black hill.
But a voice told his wife, as if anxiously pining –
It’s not yet too late, you can look again still

On Sodom, your home town, its towers and waters,
The yard where you spun, where you sang in the square,
The house where you bore your loved husband two daughters –
Your tall home whose windows stand empty and bare.

She glanced, and in agony deathly and arrant,
Her eyes couldn’t look as she turned herself round;
Her body, transformed, was now salt and transparent;
Her legs, once so quick, now took root in the ground.

This woman — will any among us regret her?
Is she not the least of our losses, Lot’s wife?
Yet my heart, I am certain, will never forget her
Who just for a glance had surrendered her life.

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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