The Walter Benjamin Brigade

How an original but maddeningly opaque German Jewish intellectual became a thriving academic industry.
The Walter Benjamin Brigade
 
Observation
Walter Laqueur
April 3 2014 12:05AM

The German Jewish intellectual Walter Benjamin, born in Berlin in 1892, dead by his own hand on the French-Spanish border in 1940, remains a man of mystery. Anything but prominent in his lifetime, he has emerged in recent decades to unvarnished acclaim as the greatest thinker of the 20th century in fields ranging from philosophy to sociology, aesthetics, literary theory and criticism, and a half-dozen more. This in itself is mysterious. Among the ranks of mid-century Central European intellectuals, the reputation of Benjamin’s contemporaries and colleagues (with the possible exception of the Frankfurt School philosopher Theodor Adorno) continues to shrink; his continues to rise and rise. The number of books and articles devoted to him is staggering; a huge new biography, Walter Benjamin: A Critical Lifeco-written by Howard Eiland and Michael W. Jennings and published by Harvard, is only the latest addition to a seemingly unending stream.

How to explain the Benjamin vogue? Eiland and Jennings cite such cultural signposts as the radical student movement of the 1960s and the attendant revival of Marxist thought. But 60s radicals were hardly great readers, and Benjamin’s writings are, to say the least, maddeningly opaque and often altogether inaccessible. As for his Marxism, such as it was: if that is the main point of attraction, by rights the real culture hero should be his contemporary Herbert Marcuse (1898-1979)—once famed as the “father of the New Left” but, these days, decidedly not a name to conjure with.

More likely, Benjamin owes his fame to the rise of cultural studies and its various academic subdisciplines: post-modernism, post-structuralism, women’s and gender studies, and the rest of the lot. In these precincts, Benjamin’s gnomic style may well count as a plus, an outward sign of inward profundity that, simultaneously, invites the most fanciful flights of interpretive ingenuity. Likewise contributing powerfully to his allure is the sorry story of his life. Quite apart from his tragic end—he swallowed poison while fleeing from Nazi-occupied France—he was always the frustrated outsider par excellence, the very type of the marginal man. Indeed, had he lived, one can hardly picture him as a happy soldier among the academic janissaries of contemporary cultural studies.

My own interest in Benjamin arose from my work in the early 1950s on the pre-World War I German youth movement, in which he had been a passionate but by no means leading member. In connection with this project I met some friends of his youth, including, in Germany, the pioneering educator Gustav Wyneken, who had served as one of his early gurus. In Italy, I encountered a number of his former associates in the radical youth journal Der Anfang. In Jerusalem there lived the librarian and poet Werner Kraft, an early friend but later a critic, and above all Gershom Scholem, who had been Benjamin’s closest friend both in Berlin and later on and who would become, with Adorno, the figure most responsible for launching his posthumous reputation.

The Scholems’ living room in Jerusalem was dominated by a drawing—Paul Klee’s Angelus Novus (1920)—which had been owned by Benjamin and played a central role in his thinking, and which Scholem had inherited after the war. (It is now in the collection of the Israel Museum.) At tea in the Scholem household, sooner or later, the conversation would turn to the Benjamin Question. Yes, he was highly educated, widely read, and engaged in diverse areas of inquiry. Yes, his ideas (as in his best-known essay, “The Work of Art in the Age of Mechanical Reproduction”) were often original, and there were flashes of genius. But in what precisely did his genius consist? Had he produced a new philosophy of history, proposed a fundamentally new approach to our understanding of 19th-century European culture, his main area of concern, or revolutionized our thinking about modernity? The answers I received weren’t persuasive then, and the answers provided in the vast secondary literature of the last decades have done no better.

To some, the problem is simply that most of Benjamin’s major work remained unfinished. I refer above all to his monumental Arcades Project, inspired in part by an abiding obsession with the urban poetry of Charles Baudelaire (1821-1867). The arcades in question were the glass-enclosed passages in central Paris when that city was, in Benjamin’s terms, the capital of the 19th century. A central emblematic figure for Benjamin was that of the flâneur, the stroller or urban explorer who habituated these environs. Having gathered a mountain of materials, Baudelaire’s poetic masterwork Les Fleurs du Mal being prominent among them, Benjamin wanted to show how urbanization had revolutionized not only culture, as evidenced in art and architecture, urban planning, and new ideas of beauty, but life in general. Traditional critical approaches, whether historiographical or philosophical, were, he pronounced, inadequate to grasp this new epoch of high capitalism and what it had wrought. A new, Marxist-tinged “materialist” theory was needed; he, Benjamin, would provide it.

Did he? Apologists point to the impediments that beset him at every stage of his career. Even his “habilitation”—the major piece of scholarship, in addition to the doctoral dissertation, that had to be submitted by anyone hoping for an academic career—had been rejected. Later, his plans to establish a new journal with the playwright Bertolt Brecht came to nothing. He never held a permanent job, regarding it as the duty of his family and his estranged wife to support him. After 1933, there were handouts from Adorno’s Frankfurt School, which had wisely transferred its funds to Switzerland and later to America, but this was no substitute for a steady source of income.

But let us assume that he’d succeeded in finishing his great project. Wherein lay its originality? The figure of the flâneur had been “discovered” earlier in the novels of Honoré de Balzac and others, and the main themes of Baudelaire’s poems had been studied even by German academics, some of whom had offered analyses not dissimilar to Benjamin’s. Were the Parisian arcades, with or without Baudelaire, the right starting point for a new understanding of modernity? Even the most detailed Benjamin biography, by the distinguished French professor Jean Michel Palmier, reaches no satisfying conclusion on this point. (Palmier’s mammoth book, almost 1,400 pages long, remains, like Benjamin’s work, unfinished—which is a comment in itself.)

 

It is much easier to write the life of a man of action than to write about a thinker, and Benjamin was nothing if not a man of inaction; in view of the difficulties this poses to a biographer, Eiland and Jennings deserve much praise. By necessity, their book is based mainly on Benjamin’s essays and correspondence. Admirably comprehensive as it is, however, there are also some strange omissions. Notably underrepresented is Asja Lācis, Benjamin’s great love; it was she who broke up his marriage, was instrumental in his conversion to a peculiar brand of Marxism, and engineered his personal introduction to Brecht. Latvian-born, a militant Communist, she lived in Moscow until suddenly disappearing in 1938. Although Benjamin must have known that she had been sent to a gulag (where she spent the next ten years), and although losing her must have had a major impact on his life and work, there’s barely* a word about this aspect of things in the Eiland-Jennings book—probably because it does not figure in his correspondence.

Since Benjamin’s death in 1940, two issues in particular have been endlessly debated: the nature of his Marxism and his attitude to Judaism. From the 30s onward, he thought of himself as a Marxist, and so he is regarded by others among his many admirers. But Scholem, who from the beginning considered Benjamin’s “materialist” orientation not only wrong but deluded—hard as he might try, Benjamin would never be able to transform himself into a materialist—dismissed this description of him as a misunderstanding. Similarly skeptical was Max Horkheimer, the leading figure in the Frankfurt School, who called Benjamin a mystic; as for Brecht, his denunciations of Benjamin’s mystical aberrations were especially harsh. More recently, the literary theorist Terry Eagleton has dubbed him a rabbi.

The confusion over Benjamin’s politics is easily explained. Of all the Weimar intellectuals and eventual emigrants, he was perhaps the least politically minded. Reading his essays and correspondence from the 30s, one cannot fail to be struck by the breadth of his interests and the depth of his knowledge—and the almost complete dearth of anything on politics. As the world was going up in flames, Benjamin was writing about the motifs of Baudelaire’s poetry. Of course he hated the Nazis and all they stood for, but I doubt he read much or anything by Marx except for the newspaper dispatches collected in The Class Struggles in France, for the light they shed on the Paris scene in the mid-19th century. As for his enduring devotion to Baudelaire, an arch-reactionary whose guru was Joseph de Maistre, a sworn enemy of the French Revolution, one has to look elsewhere than to politics for an explanation. The same goes for his admiration of Proust—hardly an idol of the Left—and his interest in Kafka.

Similar inconsistencies plague any attempt to understand Benjamin’s attitudes toward things Jewish; although this subject has given birth to a small industry, seldom has so much been written about so little. His family background lay in the highly assimilated Berlin Jewish upper-middle class. His deep friendship with the young Scholem did greatly help to stimulate an interest in Judaism—but how deep did it go, and how long did it last? He read Franz Rosenzweig’s The Star of Redemption (1921) not as a theological but as a philosophical text, and in later years it played no role in his thinking; it certainly did not bring him closer to God or to the synagogue.

Scholem, who had moved to Jerusalem in 1923, tried for years to persuade Benjamin to join him at the Hebrew University. He toyed for a while with the idea of a visit or even emigration, but eventually gave it up even though it held out the prospect of an academic career, friendships, and a salary. Esther Leslie, a professor of political aesthetics who admires Benjamin and frowns on Scholem’s attempts to lure him away from Paris, observes that he had no reason to find Zionism, or the desert, appealing. This is quite correct. European culture was infinitely more interesting to him; besides, there were no arcades in Jerusalem, and no keys to modernity in Mea She’arim.

 

Benjamin’s place was in Europe; unfortunately, Europe had no room for him. The strictures of the professor of political aesthetics aside, had he followed Scholem’s pleas to join him in the “desert”—that is, the verdant and congenial Jerusalem neighborhood of Rehavia—he would have lived another decade or two or perhaps even three. Instead of dying a miserable, self-administered death on the French-Spanish border, he could, had he so wished, have returned to his beloved Paris after the war. I can well imagine him in 1944, sitting in a Rehavia café, discussing philosophy with Natan Rotenstreich or photography with Tim Gidal or physics with Shmuel Sambursky, playing chess with the folklorist Emanuel Olsvanger, and debating with the three Hanses (Jonas on Gnostic religion; Polotsky on linguistics; Lewy on Greek philosophy). Most of these figures belonged to the Pilegesh (“Concubine”) circle of German Jewish intellectuals and scholars presided over by Scholem.

One way or another, Rehavia would have taken care of Benjamin: not the most padded existence, perhaps, and perhaps a little boring after Paris—but a fate worse than panicked suicide in a shabby hotel? The impressive memorial by the sculptor Dani Karavan in the Spanish border town of Port Bou is no compensation.

* Correction: An earlier version of this article stated that there is “not a word” in Walter Benjamin: A Critical Life about Lacis’ internment. It is mentioned on page 321.

__________________

Walter Laqueur is the author of, among other books, Weimar, A History of TerrorismFascism: Past, Present, Future, and The Dream that Failed: Reflections on the Soviet Union. His newest book, Optimism in Politics and Other Essays, was published by Transaction in January.

More about: German, Gershom Scholem, Intellectual, Marxism, Walter Benjamin

 

Patrick Modiano's (Jewish?) Sorrow

Is the 2014 Nobel Prize-winner’s work really driven by the legacy of the Holocaust in France? Or is it more personal?

Patrick Modiano's (Jewish?) Sorrow
Patrick Modiano, winner of the 2014 Nobel Prize for literature, in 2004. Photo by Ulf Andersen/Getty Images.
 
Observation
Dec. 17 2014 12:01AM
About the author

Michael Weingrad is professor of Jewish studies at Portland State University, and the editor and translator of Letters to America: Selected Poems of Reuven Ben-Yosef (forthcoming from Syracuse University Press). His essays and reviews have appeared in the Jewish Review of Books, Commentary, and elsewhere, and he also writes at the website Investigations and Fantasies.


In awarding the 2014 Nobel Prize for literature to Patrick Modiano, a French novelist whose father was Jewish, did the Swedish Academy intend some kind of comment on the ongoing eruption of violent anti-Semitism on the streets of Paris and other European cities this year? It’s tempting to think so. But if there was a political gesture here, it was an ambivalent one, and one that only reinforces a longstanding European prejudice: esteem for the safely dead Jews of the Holocaust—Modiano writes about the wartime occupation of France by the Nazis—coupled with disregard for if not hostility toward contemporary Jewish life, about which he doesn’t write at all.

Critics in France and elsewhere have groused that Modiano is not an author of Nobel stature. But with such recent winners as Tomas Tranströmer, Elfriede Jellinek, and Harold Pinter, how high has the bar been set? Certainly, the best of Modiano’s work is well worth reading, and any assessment of that work should reckon with his idiosyncratic relationship to the twin themes of Jewish identity and the legacy of the French past.

 

The novel that launched Modiano’s career at the age of twenty-three was La Place de l’Étoile (1968). Set during the German occupation of Paris, this dark, carnivalesque satire offers an intentionally grotesque compendium of anti-Semitic motifs in French literature from Drumont to Céline. All pertain to the novel’s antihero, one Raphael Schlemilovitch, whose outsized vices would make a mockery of Jew-hatred were anti-Semites capable of being embarrassed by their own absurdities. The book was inspired in part by the experience of Modiano’s father, who survived as a black marketeer during the war, staying one step ahead of French police raids and dealing at times with the Gestapo. (Modiano’s parents—his mother was Flemish—met in 1942, and Modiano was born three years later.)

After two more novels that also focus directly on the period of the Nazi occupation, though in a gradually less surreal and violent register, Modiano settled into the kind of writing he is known for today: laconic, melancholy, mysterious. English readers are fortunate in the recent appearance of Suspended Sentences, a solidly translated, one-volume collection of three novels from the late 1980s and early 90s. Regrettably, however, these are three of Modiano’s weaker efforts. His best book, and the one I’d recommend most highly, is Dora Bruder (1997; English translation 1999).

Aside from its others virtues, Dora Bruder is unusual in its directness. In other Modiano novels, the connection to specific events in the author’s life and the French past is abstracted and occluded, creating a pervasive yet indeterminate sense of sadness and mourning. Here, by contrast, the narrator, in trying to reconstruct the life of a fifteen-year-old Jewish girl who was listed as missing in a 1941 newspaper, learns that she was deported with her father to Auschwitz. In the course of his researches, conducted partly by combing through documents, partly by wandering the Paris streets on which she walked, the girl’s life becomes intertwined with that of the narrator/author and his father.

Modiano admits to writing essentially one book, in various iterations. All two dozen or so of his novels move among three periods of time: the present; memories of young adulthood in the 1960s, frequently in the company of drifters and petty criminals; and still earlier events, usually from the time of the war prior to Modiano’s birth in 1945. In the Paris through which the main character moves, each building, street address, and subway station seems to conjure an elusive memory of his own or another’s past. There is a post-apocalyptic feel to this Paris, depopulated yet haunted, its apartments sheltering squatters while the lawful owners are nowhere to be found.

Another fixture of the novels is the repeated use of lists—names, addresses, dates—and of the notebooks and dossiers that contain them: data that paradoxically fail to reconstruct anyone’s concrete experience. The obsession is with traces, past lives indicated only through their absence or loss. As the narrator of Du plus loin de l’oubli (1996, translated in 1998 as Out of the Dark) remarks: “If I liked, I could walk away from this table and it would all come undone; everything would disappear into emptiness. There would be nothing left but a tinplate suitcase and a few scraps of paper on which someone had scrawled names and places that no longer meant anything to anyone.”

 

What are we to make of all this? Is it really driven, as is frequently alleged, by the legacy of the Holocaust in France, the occupation, and the deportation of a quarter of France’s Jews to the death camps? In fact, the Jewish tragedy is not at the heart of Modiano’s work. While his father’s Jewishness figures explicitly, Modiano has never asked it to carry more significance than it can bear. Indeed, in his 2005 memoir Un Pedigree (2005), after noting his father’s Jewishness, Modiano comments: “I write ‘Jew’ without knowing what the word really meant to my father and because it was mentioned on the identity cards of the time.” According to the same book, Modiano himself was baptized in 1950 at the age of five, attended Catholic school, and was a choirboy.

Alluding to his disconnection from both of his parents, Modiano writes: “I have never felt myself a legitimate son and even less an heir.” No wonder. Neither parent seems to have taken more than an occasional interest in his existence. For months at a time, he and his younger brother were fobbed off on friends while their parents pursued their own affairs, his father in shady business dealings, his mother in an unsuccessful career as an actress. The brother, his only constant companion, died when he was eleven. Banishment followed to a series of mediocre boarding schools—glorified reformatories, in his description—from which he eventually ran away. By his late teens, his father was trying to get him drafted into the army. At twenty-one, he began work on his first novel and never saw either of his parents again.

In sum, the driving force behind Modiano’s melancholic novels is the acute sense of abandonment he felt as a child—that, and the desire for love. This is the darkness that sends him back to the war and the occupation, seeking some proximity to his evasive parents. In one episode, which he has recounted multiple times, the teenage boy is forced by his now-estranged mother to ask for money from his father, who responds by calling the police. The police take both father and son to the station so that the former can press charges against the latter.

In his retellings of this humiliation, Modiano also summons, perversely, the momentary sense of closeness, there in the police van, to his father and his father’s mysterious past. He cannot help reminding himself that this same father had seen the inside of a police van in 1942, when he was caught in a roundup as a Jew without papers. And it is just here, in the seemingly arbitrary interplay between a detail of personal autobiography and wartime French history, where the peculiar force of Modiano’s work resides. It is not that he uses either the Nazi occupation or the Shoah as a metaphor for his personal sorrow; rather, his unresolved personal sorrow becomes, subtly but compellingly, a metonymy, or partial stand-in, for France’s ambivalent relation to its sordid past.

To be sure, as the French critic Anka Muhlstein complained in the New York Review of Books (“Did Patrick Modiano Deserve It?”), Modiano is no Philip Roth. Nor is the trajectory of his writing at all adequate to the situation in Europe today. Still, one wonders: 70 years from now, will the Nobel committee see fit to bestow a prize on the writer who, with similar obliqueness, will have gestured at the disappearance of the European Jews of our own time?

More about: Holocaust, Literature, Nobel Prize, Patrick Modiano

 

Gil Marks and the Holy Stomach

An acclaimed food writer and culinary historian knew that to understand Jewish food was to understand Judaism itself.

Gil Marks and the Holy Stomach
A vendor puts out loaves of hallah in Jerusalem's Mahane Yehuda Market. AP Photo/Robert E. Klein.
 
Observation
Dec. 10 2014 12:01AM
About the author

Meir Soloveichik is the rabbi of Congregation Shearith Israel in New York and director of the Straus Center for Torah and Western Thought at Yeshiva University.


This past Sunday, Gil Marks, famed Jewish food writer, author of several acclaimed cookbooks and of the magisterial Encyclopedia of Jewish Food (2010), and an Orthodox rabbi, was laid to rest near his home in Alon Shvut, Israel. Marks has been widely and justly lauded for his sterling contributions to the field of culinary history. Yet he requires appreciation not only as a chef and a food writer but as an interpreter of Torah.

To read The Encyclopedia of Jewish Food is to encounter a smorgasbord of extraordinary insights, culinary and otherwise. Marks informs us, for example, that not until the 15th century did Ashkenazi Jews in Germany and Austria begin to apply the term hallah—which in the Bible designates only the bit of dough offered to the priest as a tithe—to their Sabbath loaves. It seems that, in those lands, Christians still perpetuated certain pre-Christian practices, one of which had been to prepare, around the time of the winter solstice, an attractively braided loaf to appease the pagan goddess Holle, an “ugly Teutonic crone with long matted hair.” In time, having replaced the pagan referent with a sacred one, Jews all over the globe, Ashkenazim and Sephardim alike, would be inaugurating their Sabbath meal with a blessing over two artfully braided loaves of “hallah.”

Marks has similarly fascinating stories to tell about other Sabbath foods. His Encyclopedia even features a cholent map, charting the historical spread and evolution of this Sabbath stew from the hamin cited in the Mishnah, to the adafina of Spain, to the slow-cooked, potato- and barley-based casserole of Ashkenaz that is relished by so many today. And his discussion of the holidays is no less enlightening. In this Hanukkah season, anyone who, like me, mourns the plummet of the potato latke from its former prominence will be amused and edified by Marks’s reconstruction of how that once-universal dish gave way, in Israel, to jelly doughnuts, known as sufganiyot. (Hint: it was all the result of a socialist plot.)

 

But Gil Marks’s achievement goes beyond his historical and cultural researches, his amazing expertise in the kitchen, and the many indispensable recipes he provided along the way. As he well recognized, Judaism itself is, in the phrase of the theologian Michael Wyschogrod, “a religion of the body,” and its vision of holiness is very much linked to the physical, and especially to food.

In Temple times, the central cultic ritual was the assembly of the entire people three times a year in Jerusalem, where, the Bible constantly exhorts, “Ye shall eat there before the Lord your God.” Rabbi Joseph Soloveitchik noted just how shocking this idea must have been to the ancient Greeks. To the Greek mind, he wrote, “an animal eats, while man thinks and recognizes the spiritual.” But Judaism, then and now, insists on the sacred value of dining before the divine:

Eating sacrifices, eating the paschal lamb, eating the second tithe, . . . eating matzah, eating the offerings of joy on the three festivals—all of these are biblical commandments . . . whereas prayer [by contrast] is counted among the commandments only according to Maimonides. The mitzvah of rejoicing on the festivals in the Temple is focused on eating sacrificial meat, and in our time on eating regular meat and drinking wine, and this is considered the rejoicing of man before his Creator.

In his essays and his books, Gil Marks reminded us that to misunderstand food is to misunderstand faith. Take Passover and its laws, which are all about bread. According to the book of Exodus, two substances were forbidden to the Israelites in remembrance of their liberation from Egypt: hametz, or leavened bread, and se’or, which is commonly translated as yeast. To Marks, the translation is a mistranslation, and a ludicrous one; after all, another central ritual at the seder is the drinking of wine, which itself is created by the action of yeast. Se’or, he states flatly, is “one of the most mistranslated words in the entire Bible.”

In fact, se’or refers to a basic element of baking known to all before the modern age: starter dough. First invented in Egypt, this carefully nurtured mixture of flour and water contained a natural culture of yeast and bacteria: an imperishable leavening agent. For most of the history of the West, starter dough was one of a household’s most treasured possessions; to this day, European chefs utilize starters that are several centuries old. To ask the Israelites to rid themselves of se’or—one of ancient Egypt’s breakthrough innovationsand to command that their descendants replicate the deed throughout the generations, was to ask an extraordinary yearly sacrifice in token of their faith.

But the Jewish approach to food—and to the material world in general—may be best captured in examples not of deprivation but of affirmation. I’m particularly enamored of an anecdote about Rabbi Baruch Ber Leibowitz (1870-1939), a devoted student of Rabbi Hayyim of Brisk and later the leader of a yeshiva in Slobodka, Lithuania. Once a townsman brought Rabbi Leibowitz a chicken’s stomach in which a needle had been found. Because a hole in the stomach—the kurkevan, in the parlance of the Talmud—renders a chicken unkosher, this is a problem discussed at length in Jewish law. Having spent his entire life in such study, the revered rabbi knew a great deal about a chicken’s stomach but—unlike any shtetl housewife of his day—had never actually seen one. According to the tale, he grabbed the bloody, pulpy mass, held it close, and joyously exclaimed, “So this is the holy stomach on which so much Torah has been written!” (“Ah, dos iz di heylige kurkevan!”)

Judaism, contra Plato, denies that this is a world of material shadow that the enlightened must escape. Similarly, to be a religious Jew is to reject the Christian assertion that “My kingdom is not of this earth.” On the contrary: Jews insist that in sanctifying the physical, they enable the presence of God to reside in this world. As Rabbi Soloveitchik put it: “The universal homo religiosus proclaims: the lower yearns for the higher. But halakhic man, with his unique mode of understanding, declares: the higher longs and pines for the lower.”

Gefilte fish, matzah, cholent, and so many other culinary concoctions—lowly substances, all—are, in their own way, foods of faith, and eating them, with the proper perspective, allows our tables to be dwelling-places of the divine. This is what Gil Marks showed, over and over again, and it is for this that he will be sorely missed—even as his impact on my eating, and on that of countless others, will endure for many courses to come.

More about: Food, Gil Marks, Jewish food, Seder

 

Israel's Imperious Judiciary

A madly intrusive justice system is one of the most potent threats the country faces. Can it be stopped?

Israel's Imperious Judiciary
The Supreme Court of Israel. Wikimedia.
 
Observation
Dec. 4 2014 12:01AM
About the author

Moshe Koppel is a member of the department of computer science at Bar-Ilan University and chairman of the Kohelet Policy Forum in Jerusalem.


It is no secret that the state of Israel suffers from both external and internal threats to its life as a flourishing democracy. Less well known is that one of the most potent such threats arises from the unlikeliest of quarters: Israel’s own hyperactive justice system.

Let me begin with an anecdote. Even in Israel’s famously contentious environment, it’s startling to see a government minister interrupt a supreme-court hearing to shout that the state attorney representing his own ministry has been sabotaging him—and that he wants to represent himself. But that is exactly what Ehud Olmert, then Israel’s minister of industry, did in the summer of 2003.

The story, in brief, was this: the Israel Lands Authority (ILA), then under the control of Olmert’s ministry, had reached a revenue-sharing deal with a consortium of kibbutzim to rezone and sell state-owned agricultural land under lease to the kibbutzim. A non-governmental organization (NGO) then petitioned the Supreme Court to invalidate the deal on the grounds that the deal “over-compensated” the (predominantly Ashkenazi and presumably privileged) kibbutzim and had thus failed to achieve “distributive justice.” Since “distributive justice” is the sort of policy issue in which most courts, in most countries, are loath to get involved, the ILA thought it had a strong case. So Olmert was stunned when Israel’s attorney general, whose position entails defending state agencies in court, not only refused to defend the ministry—his client—but sent a state attorney to undermine its case.

Olmert’s outrage was his alone; nobody else in Israel was even slightly surprised. Already a decade had passed since Israel’s high court opened its doors to any petitioner on any issue that caught its fancy, at the same time subordinating elected officials to legal bureaucrats ostensibly in place to advise and represent them. In doing so, the judiciary effectively emasculated the executive branch—as it would ultimately emasculate the legislative branch—while empowering a cadre of extremely powerful government lawyers unaccountable to the public.

Here’s how it happened.

 

The Limits of Judicial Review

 

One of the foundations of republican government is the principle of checks and balances, with different branches of government serving to constrain the power of the others. In such a system, a key element is an independent judiciary whose job is to compel adherence to the law and prevent other actors from exceeding their legal authority.

But while the courts are necessary to preserve the balance of power, they must themselves be kept in check. What makes them especially dangerous is that, unlike elected officials, they are typically not answerable to voters. Thus, when judges invalidate some state policy, they are in effect, if indirectly, overruling a choice made by the citizens themselves. For this reason, modern democracies impose constraints both on the kinds of disputes the courts may address and on the specific ways they may resolve those disputes.

For the first three decades of Israel’s history, its courts—as is the practice in all democratic legal systems—avoided judging the substance of administrative actions and intervened only when a government agency exceeded its legal authority. Indeed, Israel’s legislative body, the Knesset, initially regarded the courts as such benign institutions that in 1953 it (misguidedly) passed a law allowing judges themselves to play the dominant role in determining judicial appointments. Predictably, however, the effect of that system, unique among democracies, was that slowly but inexorably the Supreme Court became ideologically homogeneous, thereby rendering its long record of judicial prudence vulnerable to dramatic reversal.

The major catalyst in this reversal was Aharon Barak. Born in Lithuania and, with his parents, a survivor of the Holocaust, educated at the Hebrew University and briefly at Harvard, and from 1975 to 1978 the attorney general of Israel, Barak then joined the Supreme Court, becoming its chief justice in 1995. From his perch on the court he launched not one but two revolutions. In the first, beginning in 1981, the court weakened the previous limitations on its interventions in state policy. In the second, less well-known but more insidious, it empowered a judicial-bureaucratic complex to nip government policies in the bud—before they could even reach the courts.

 

Judicial Overreach

 

In his initial revolution, Barak broadened the grounds on which courts could intervene in state policy and then eliminated two crucial limitations—in legal jargon, “standing” and “justiciability”—on the sorts of cases they could hear.

Grounds: Until 1981, as noted above, the courts would not invalidate a government policy unless it could be regarded as an outright abuse of authority. That year, Barak ruled that even if a state agency’s criteria for determining its policy were relevant and lawful but, in the court’s opinion, the agency nevertheless failed to “give each of the relevant considerations appropriate weight,” the court could invalidate the policy as “unreasonable.” In plain English, it could invalidate any policy it didn’t like.

This opened the floodgates to judicial second-guessing of all sorts of state policies, no matter how beneficial or how picayune. In short order, the courts invalidated decisions regarding the placement of sidewalk tables at cafés, nursery-school subsidies for self-employed mothers, the location of a soccer stadium, the scope of farm subsidies, the worthiness of prize winners, and more.

Standing: Even after 1981, a petitioner wanting to bring a case before the court had to prove that he was directly harmed by the law or policy he was challenging. For instance, in 1981 the legal gadfly Yehuda Ressler brought a case disputing military exemptions for full-time yeshiva students; since he had no coherent claim to be a victim of these exceptions, his petition was rejected.

By 1986, however, when Ressler brought his petition a second time, the court, with Barak at its head, ruled that standing was no longer a requirement. (Ressler’s petition was again ultimately rejected, but for other reasons.) It was a watershed moment. In the following years, the court entertained petitions by various political actors, including opposition Knesset members, offended by one or another government policy. Such petitions included demands that secret clauses in coalition agreements among political parties be made public; that the attorney general pursue prosecutions he had chosen to drop; that a candidate for the office of attorney general be rejected as unsuitable; and that a decision by the justice minister not to extradite an Israeli convicted in a foreign court be reversed. In none of these cases was the petitioner directly harmed by the law or policy being challenged.

Justiciability: All of the petitions listed above not only lacked standing but also fell outside the constitutional role of the courts. That is, they lacked justiciability, which requires among other things that courts refrain from interfering in “political questions”: the domain of the elected branches. But in the 1986 Ressler decision, Barak, after dispensing with the requirements for standing, also declared that “every instance of a decision by a government agency”—even “going to war or making peace”’—was justiciable.

Subsequently, Barak would go on to cite his theoretical abolition of both standing and justiciability as established jurisprudence. Freed of all constraints, the court now addressed such security issues as challenges to military tactics, the placement of the separation barrier near the Green Line, and negotiated deals involving prisoner releases. Regarding this judicial intervention in security matters, Mishael Cheshin, Barak’s colleague on the Supreme Court, once observed that “Justice Barak is willing to see 30 or 50 people blown up for the sake of human rights.”

The court also weighed in on the worthiness of government officials. In 1993, two senior officials of the Shas party, Interior Minister Aryeh Deri and his deputy Rafael Pinhasi, were indicted on corruption charges. Prime Minister Yitzhak Rabin did not wish to fire the two ministers. Nor did the law require him to do so, since they had been indicted but not yet convicted. But when several NGOs brought suit against the prime minister for exercising this right, the court enjoined him to fire them both, precipitating a major political crisis. In 2013, emboldened by its success in deposing appointed ministers, the court would go a step farther by deposing three elected mayors, each of whom had been similarly indicted but not convicted. (The voters, unimpressed, re-elected all three shortly thereafter.)

The Deri and Pinhasi cases also triggered Barak’s second revolution, to which we now turn.

 

Empowering the Legal Bureaucracy

 

The Supreme Court’s stunning extension of its own authority has been duly noted by observers in Israel and abroad. Among American experts, both Robert Bork (“Barak’s Rule,” Azure, Winter 2007) and Richard Posner (“Enlightened Despot,” the New Republic, April 23, 2007) would write scathing reviews of Aharon Barak’s 2006 book, The Judge in a Democracy. Less publicized outside of Israel, but significantly more damaging in its day-to-day consequences, was the court’s empowerment of proxies to expand its own authority at the expense of the legislative and executive branches.

In the 1993 Pinhasi case, Dorit Beinisch, then the state attorney and later to become chief justice of the Supreme Court, dryly read out the letter written by Yitzhak Rabin, the prime minister of Israel and her client, expressing his position that he had no legal duty to fire the accused deputy minister. She then proceeded to argue against her client.

In his decision, Barak addressed an obvious objection—namely, that the government had been denied due process to defend its position in court. In what is perhaps the single most consequential passage in the history of Israeli jurisprudence, Barak argued that the attorney general, as the “authorized interpreter of the law with regard to the executive branch,” was under no obligation to defend the policies of the prime minister. In Barak’s words,

There are two basic principles in this matter. First, that the attorney general’s opinion on a legal matter reflects, as far as the government is concerned, the existing legal situation. Second, that representation of the state and government agencies is entrusted to the attorney general. . . . Thus, if—in the attorney general’s opinion—the government agency is not acting in accordance with law, it is the attorney general’s prerogative to inform the court that he will not defend the agency’s act.

In this ruling, the court established both that elected officials would be bound by the views of legal advisers ostensibly subordinate to them and that the government and its ministries were not free to choose their representation in court but would have to make do with bureaucrats assigned to them by the attorney general’s office. Each of these two principles, unparalleled in democratic nations, has had precisely the chilling effect on governance that one might expect, especially when combined with the court’s effective control over judicial appointments and the power it granted itself to block appointments of which it does not approve.

As for the attorney general, although appointed by the government, he or she must be selected from a very small set of candidates nominated by a committee; that committee is headed by a retired supreme-court justice who is appointed, in turn, by the sitting chief justice. This system, devised by the justices themselves, makes the attorney general a judicial plant in the executive branch. Since the opinions of attorneys general possess binding force, they have essentially been handed veto power over government policy. Moreover, this same binding authority has since been extended to the entire staff of the attorney general’s office and thence to legal advisers of individual ministries: that is, bureaucrats neither chosen by their supposed bosses nor elected by the people. These advisers, in the understated words of former Justice Minister Haim Ramon, “silence the government and greatly impair the ability of ministers to implement their policies. . . .  This is not legal advice, this is coercion.”

Take the case of a multibillion-dollar train line between Jerusalem and Tel Aviv, a project initiated by the ministry of transportation. A deputy attorney general, expressing his opposition to the fact that 350 meters of track crossed the Green Line, advised the ministry that it was in violation of the Geneva Convention and that he would allow it only if the plans were broadened to include a new fenced highway serving Palestinian transit from Hebron to Gaza. The government, resigned to the courts’ accepting this “advice” as binding, obediently revised its plans, incurring a delay of years at immense cost.

The attorney general’s office, following the court’s example, also does not refrain from weighing in on military matters. Throughout Operation Protective Edge in Gaza earlier this year, Israel continued supplying electricity to Gaza even as the electricity was being used by Hamas for the production of rockets. As Prime Minister Netanyahu explained the anomaly, “our legal advisers won’t let us stop the supply of electricity to Gaza.”

Once the high court conflated its vague and subjective notion of “unreasonableness”—i.e., something not to the court’s liking—with illegality, the legal bureaucracy followed suit. Today, it is sufficient for a legal adviser to declare some proposal “unreasonable” (or even “unsuitable,” or “inappropriate”) to kill it. Similarly, government officials themselves can be disqualified from office on bogus grounds by attorneys general and their subordinates—as routinely happens. In early 2011, for example, preliminary investigations by the attorney general’s office were enough to derail the appointments of the heads of the army, the police, and the prison system.

And that is not all. As a result of the second principle established by Barak in the 1993 Pinhasi decision, even the right to choose one’s representation before the courts is denied to the state and its agencies. That is how Ehud Olmert came to be reduced to shouting in court that he’d been sabotaged by his own lawyer on a petition that should not have been heard in the first place. (The petitioner, an NGO, had no standing, that is, no coherent claim to being a victim of the policy in question; and the issue, being political, was not justiciable.) The court showed little interest in Olmert’s objections. Ultimately, it ruled against him and the Lands Authority alike, exacerbating an acute land shortage from which Israel suffers to this day.

Indeed, now that that the prerogative of the government’s lawyers to argue against their clients’ positions in court has been established, they are no longer even compelled to exercise that prerogative. The threat itself will do. A lawyer in the attorney general’s office can warn that the office won’t defend a bill should it be challenged, and the legislature, lacking recourse to other lawyers, will preemptively back down.

For all the harm done by the court’s unilateral extension of its own authority—Barak’s first revolution—at least its judicial interventions are carried out in the light of day and with a semblance of due process. The machinations of the legal bureaucracy embedded in ministries and other agencies of government—Barak’s second revolution—take place behind closed doors, preventing cases from even reaching court; the chilling effect is consummate.

 

Why Reform is Difficult

 

Israel’s justice system is in desperate need of reforms that can end this tyranny of the legal bureaucracy. The particulars of the reform are not difficult to identify: allowing the government and its ministries to hire and fire legal advisers at their discretion; allowing government agencies to choose their representation in court; turning judicial appointments over to elected officials; restoring the requirement of standing; and dividing the powers of the attorney general among several individuals. Elected officials, across the political spectrum, have a clear interest in advancing these reforms. Why, then, have they not pursued them?

There are three different answers to this question, each sufficient in itself. The first is that politicians are afraid of the long arm of the judicial bureaucracy, which can punish them for challenging its authority. The second is that the Supreme Court and its bureaucratic allies know how to use the power they have arrogated to themselves in order to stymie attempts at reform. The third is that Israel’s political culture needs to be changed before its laws can be changed.

The judicial-bureaucratic complex has already made a habit of intimidating high-ranking politicians. It is perhaps no coincidence that investigations have been launched against four recent justice ministers and one whose candidacy for the position was killed in advance, as well as against every prime minister who has served in the past 20 years. A few of these individuals might actually have been guilty of the offenses they were accused of—two were convicted—but in the majority of cases an investigation or, for some, the threat of an investigation has been sufficient to keep the politicians on a tight leash. Simply by allowing a bogus case to remain open, the court (or the attorney general) can exert its influence on policymaking.

Even if some courageous politician musters the courage to advance a reform proposal, it will have no chance of passage. At the preliminary stage it will need to be vetted by the attorney general and edited by ministry lawyers; in the event it somehow makes it far enough to be challenged in court (as it surely will be), it will be “represented” by legal counsel under no obligation to defend it; it will then need to be upheld by a court not especially inclined to compromise its own power. Why should legislators bother in the first place?

In the end, the only real path toward reform lies through a change in Israel’s legal culture. The judicial-bureaucratic complex has invested decades in persuading the public that elected politicians are dangerous because they wish to advance the interests of their constituencies, while prosecutors, legal advisers, and judges are neutral, free of personal and institutional interests, and committed only to the cause of justice. (As Barak once put it, apparently without irony: The judge “does not seek power, nor does he crave to rule. He does not seek to impose his personal views on society. He wishes only to do justice.”)

Students in Israeli law schools learn that it is their sacred duty to rescue public policy from the clutches of democratically-elected officials who wish to “politicize” it. Consider, for example, a landmark 1994 decision (in the Bank Hamizrahi case) justifying judicial review of laws. First, Barak conjured the existence of what he called the “fundamental values of society”:

[W]hen judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. . . . Judicial review of constitutionality enables a society to be true to itself and to honor its basic conceptions.

Elsewhere, Barak helpfully explained that the society to whose fundamental values he referred was not the entire society but rather only the “enlightened public.” And what were those “fundamental values”? Whatever the court said they were. In other words: the Law is us.

Generations of Israeli law students have been taught Barak’s doctrine as gospel. Restoring the pre-Barak juridical culture of realism and restraint will thus be a long process. Students will need to be reintroduced to now-heretical ideas regarding representative government and limited bureaucracy, presumably by studying non-Israeli scholarship on the topic. These ideas will need to filter down to the general public as well, so that the courage to advance reforms becomes—for a politician, a party, or a movement—an advantage rather than a liability.

Who is up to the challenge? That is the question of the hour.

______

The author wishes to thank Dan Illouz and Yitzhak Banon for their contributions to this essay.

More about: Israel, Israeli politics, Supreme Court of Israel

Jacob, the Innocent Con Artist

Was Jacob born to greatness, did he achieve it, or did he have it thrust upon him by his mother?

Jacob, the Innocent Con Artist
Jacob Deceives Isaac by James Tissot, 1902. Wikiart.
 
Atar Hadari
Observation
Nov. 20 2014 12:01AM
About the author

Atar Hadari, born in Israel and raised in England, is a poet and translator whose Rembrandt’s Bible, a collection of biblical monologues, was recently published in the UK by Indigo Dreams. He writes regularly for Mosaic.


This week’s Torah portion of Toledot (Genesis 25:19 – 28:9) is about the costs and benefits of obedience, or of emulation if you will. Where Abraham’s story begins with God’s demand that he leave his father’s house and go wherever the Almighty wants him to go, this story is about three men, none of whom really wants to leave his father’s house, and one woman who sees to it that her sons do what God requires. The story is about staying, not going, and the price exacted by each.

But these are the annals of Isaac son of Abraham, Abraham fathered Isaac.
And Isaac was forty years old when he took Rebecca daughter of Betuel the Aramean of Pedan,
sister of Laban the Aramean, as his wife.
And Isaac entreated the Lord when he found his wife was barren
and the Lord assented to him and Rebecca his wife conceived.
And the children rattled about inside her and she said, Why am I like this?
And she went to inquire of the Lord and the Lord told her,
Two peoples are in your belly and two nations will part from your loins
and one nation will fortify the other
and the elder will make offerings to the younger.

A key question at this point is just what is meant by “the elder”? Many commentators have justified Rebecca’s subsequent actions as being intended to fulfil this prophecy by seeing to it that her firstborn son Esau will make offerings to his younger twin Jacob. Her actions do fulfil the prophecy, but in exactly the way she does not want. Yes, they allow Jacob to assume the role of firstborn, but they also drive him from his father Isaac’s house, only to return many years (and several Torah portions) later to make offerings to his “younger” brother Esau in recompense for having stolen the birthright and their father’s blessing. So what does this story mean?

But the boys grew and Esau became a man skilled in hunting, a man of the field,
and Jacob was an innocent man who lived in tents.
And Isaac loved Esau for the game in his mouth, but Rebecca loves Jacob.
And Jacob stewed a stew and Esau came from the field and he was tired
and Esau said to Jacob, Give me a mouthful of that red red stuff now
for I’m tired (that’s why they called him Red).
But Jacob said, Sell me your birthright today,
and Esau said, Here I am going to expire—what do I need the birthright for?
But Jacob said, Swear to me today
and he swore to him and sold his birthright to Jacob
and Jacob gave Esau bread and lentil stew
and he ate and he drank and he rose and he left.
And Esau scorned the birthright.

Two more details as the story sets its traps. The description of Jacob as an innocent man who dwells in tents is left like a loaded gun in the middle of the stage. First, in what sense is he innocent? I always assumed the Torah was being profoundly ironic here—just for starters, Jacob is hustling his brother for the birthright only two lines later—but I’ve been forced to conclude otherwise.  Jacob, I think, is innocent in the way the third son in the Passover Haggadah is innocent (both texts use the same Hebrew word). There’s a wise son who has faith, a wicked son who voices doubt, an innocent son, and lastly one so simple he can’t even ask questions. Jacob is like the innocent son in not really considering the consequences of his actions. He does not behave in such a way that a rabbinic court might consider him, for legal purposes, a grownup.

Who, then, should inherit Abraham’s blessing: the driven but dangerously “innocent” Jacob, or the rightful heir who is so unfit to inherit that he’ll trade his birthright to fill his stomach?  So far, our story seems to present us with an impossible choice.

The second key detail is the description of Jacob as a tent-dweller. Unlike Esau, an independent creature soon to defy parental authority by choosing his own wives, Jacob will go from his mother’s home to his uncle’s, and will take his wives where he’s been told to by his parents; it will be another 20 years before he finally strikes out on his own with his own family. Jacob is conflicted: between the drive to acquire greatness at any cost and the impulse to conform with what is expected of him. Is that the kind of person we want inheriting the family mission?

As if to parallel the dilemma, the narrative now interrupts itself to catch us up on the story of the boys’ father, Isaac:

But there was a famine in the land, apart from the first famine in Abraham’s day
and Isaac went to Avimelekh king of the Philistines, toward Grar
and the Lord showed Himself to him and said, Do not go down to Egypt,
fix in the land that I’ll tell you, migrate to this land and I’ll be with you and bless you.
For to you and your descendants I’ll give these lands
and I will fulfil the oath I swore to Abraham your father. . . .
And Isaac sowed in that land and realized in that year a hundredfold
and the Lord blessed him, and the man became greater . . .
and the Philistines envied him.
And all the wells his father’s servants dug in his father Abraham’s day
the Philistines had blocked and filled with dust. . . .
But Isaac went from there and pitched his camp at the Grar river and settled there
and Isaac settled and dug the water wells they’d dug in the days of his father Abraham
that the Philistines blocked after Abraham’s death
and he named them by the names his father called them. . . .
And he went up from there to Beer Sheva and the Lord showed Himself to him at night
and said, I am the God of Abraham your father.
Do not fear for I am with you and I will bless you and make many your descendants
For the sake of my servant Abraham.

 

This episode contrasts two modes of receiving and then transmitting the divine blessing. We have already seen Jacob hustling and chafing at the reins, but here we see his father following meticulously, assiduously, in his father’s footsteps. When faced with a famine, he does what Daddy did and goes down to Grar to Avimelekh, but the Lord appears and tells him explicitly that his mission is different from Abraham’s—he is a preserver, not a creator. He is not to go down to Egypt, but rather to hold onto and strengthen the claim of Abraham on these lands. Isaac re-digs wells and reclaims them with the same names his father had given them.

Isaac is the second generation, consolidating the wealth of the initial money-maker. Nearly all cultures have a version of the expression, “from rags to riches to rags in three generations.” If it is to be the story of this family, it won’t be Isaac’s fault. He’s holding on.

But there is a price to pay for being obedient. The blessing Isaac receives and has to transmit is not really “his”—everything the Lord does for Isaac, after all his filial service, is done for the sake of Abraham. Isaac is just a place holder before the advent of the next creative spark, the one who will think outside the box. Who will it be, and what will he pay for the privilege?

And it was when Esau was forty years old that he took to wife
Judith daughter of Be’eri the Hittite and Basmat daughter of Eilon the Hittite
and they were the bane of Isaac and Rebecca’s spirit.

Bane or no bane, Isaac still wants to bestow the blessing on Esau, not Jacob. He initiates the process by telling his favorite son to go hunt some game, “so that I’m alive to bless you before I die.” But, fatefully, Rebecca intervenes:

And Rebecca spoke to Jacob her son, saying, Look
I heard your father talking to your brother Esau,
but now my boy listen to me about what I’m telling you—
go now to the goat pen and get me two nice kids
and I’ll make them tasty things for your father
the way he likes, and you bring them to your father for him to eat
so he’ll bless you before he dies. But Jacob said to Rebecca his mother,
Since my brother Esau is a fuzzy man and I am a smooth man,
maybe my father will feel me and he’ll see me as a fraud
and I’ll bring a curse on myself, not a blessing.
But his mother told him, Your curse be on me my son,
just listen to me and go get them for me.
And he went and he took and he brought them for his mother
and his mother made tasty things as his father liked.
And Rebecca took the clothes of her big boy Esau,
the finery that was with her at home,
and dressed Jacob her little boy,
and the pelts of the kid goats she pulled over his hands
and over his exposed throat,
and she put the tasty things and the bread she made in the hand of Jacob her son.
And he came to his father and said, Dad,
and he said, I’m here. Who’re you, my son?
And Jacob told his father, I’m Esau your firstborn,
I have done as you told me,
get up now and sit you down to eat my game
so you’ll live to bless me.
But Isaac said to his son, What were you so quick to find, my son?
And he said, Just what the Lord your God chanced before me.
But Isaac said to Jacob, Come on over and let me feel, my son,
if you are he, my son Esau, or not.
And Jacob went over to his father Isaac and he felt him and said,
The voice is Jacob’s voice but the hands are Esau’s hands.
And he didn’t recognize him because his hands were fuzzy like his brother Esau’s,
and he blessed his son, but said: Is it you my son Esau?
and he said, It’s me,
and he told him, Serve me and I’ll eat my son’s game
so I’ll bless you while I’m still alive.
And he served him and he ate and he brought him wine and he drank
and he went over and kissed him and he smelled the smell of his clothes
and blessed him and said,
Look, my son smells like the smell of a field blessed by the Lord.

 

The drama of this scene is unequalled by anything outside of Shakespeare. Again and again, Isaac’s instincts tell him that this is not the son he wants to bless; again and again, Jacob holds his breath thinking he’s going to be discovered; again and again, he has to lie. Commentators note that after the scene where Esau sells his birthright to Jacob, the text never refers to him as the firstborn. It keeps hammering home that one of the two is older and one younger, one bigger and one smaller, but never that Esau is the firstborn: that is, the presumed heir. Which is one reason it’s such a shock in this scene to hear our hero lying to his father, who clearly loves Esau dearly.

And then, no sooner has Isaac finished blessing Jacob than Esau enters. Now the father is confused:
Who was it then who hunted game
and brought it me and I ate it all
before you came, and I blessed him, and blessed shall he remain?
As Esau heard his father’s words he cried a great and most bitter cry
and told his father, Bless me too, Daddy.
But he said, Your brother came by wiles
and took your blessing.
And Esau bore a grudge against Jacob over the blessing his father blessed him,
and Esau said in his heart, The days to mourn my father are nigh,
and I’ll kill Jacob my brother. And Rebecca was told the words of Esau her big boy
and sent to call Jacob her little boy
and told him, Look, Esau your brother
comforts himself with the thought of killing you,
but now my son listen to me and get up and flee for yourself
to my brother Laban, toward Haran, and you’ll settle with him a few days
until your brother’s fury wanes
until your brother’s rage falls away from you
and he forgets what you did to him
and I’ll send to take you from there.
Why should I lose both of you in one day?

But losing them both is exactly what she has caused to happen. Rebecca will die before Jacob eventually comes home, and her machinations alienate her from Esau. Having caused Jacob’s exile, she now puts in motion a formal dissociation of Esau from the inheriting line of the family:

And Rebecca said to Isaac, I’m at the end of my tether from these Hittite girls.
If Jacob takes himself a wife from these Hittite girls, from these girls in the land
Why should I want to live?
And Isaac called Jacob and blessed him
and commanded him and said, Don’t take a wife from the Canaanite girls,
get up and go to Padan Aram the home of Betuel your mother’s father
and take yourself a wife from there, from the daughters of Laban your mother’s brother.
And the God Shadai will bless you and make you fruitful and make you many
and you shall be a host of peoples and he’ll give you the blessing of Abraham. . . .
And Esau saw that Isaac blessed Jacob
and Esau saw that the Canaanite girls looked bad to Isaac his father
and Esau went to Ishmael and took Mahlat daughter of Ishmael son of Abraham
sister of Nevayot over his wives, to be his wife.

I find this passage almost as heart-breaking as Esau’s desperately sad cry to his father to bless him, too. This urge to please his parents by marrying again, and then going disastrously to the family of the bypassed Ishmael to do so, reminds me of the moment in Arthur Miller’s Death of a Salesman when the desperate younger brother Happy tells his  mother: “I’m gonna get married Mom. I wanted to tell you,” and she says, “Go to sleep, dear.” And he says, “I just wanted to tell you,” but she still isn’t listening.

The truly awful thing about this story is that Esau is clearly unworthy of the blessing of Abraham. As if the early incident with the stew were not enough, he has twice gone off without consulting his parents and married the wrong person, which is what Abraham spent the entire previous week’s reading (Genesis 23:1 – 25:18)  making sure Isaac wouldn’t do. So it clearly cannot be Esau who will continue the family story—but why does it have to be so painful? And why has Isaac had to spend his life following in Abraham’s footsteps only to be told that God has put up with him only for his dead father’s sake? And why, despite his own love for Esau, must Isaac go through the bedside charade over the blessing?  Whatever Isaac’s own preferences may be, he always bows to Rebecca’s aims, recognizing that when Jacob leaves home to do her bidding and marry the way he himself did at his father’s command, the blessing will go with him. Blessed he shall be.

And the blessing, finally, is a burden. What Abraham did out of a deep and developing relationship with the Almighty, Jacob does out of a mixture of innate ambition and familial imperative. Neither he nor Esau is ever addressed directly by God. Rebecca engineers it all. It is only once he is cast out of his father’s house that, in next week’s reading, God appears to him. And only when he returns to confront Esau as a well-to-do and independent pater familias will he encounter and wrestle with the mysterious entity in the night.

In the end, it is difficult to say whether Jacob, the “innocent” con artist, was born to greatness, achieved greatness, or had greatness thrust upon him by his mother.

But he has no choice now. He wanted it, and it’s all his. Rebecca’s parting words to him—“flee for yourself”—deliberately contain an echo of God’s initial word to Abraham—“go for yourself.” But it is one thing to go, and another to flee. For an awfully long time, the family mission that Jacob sets out on will look like a road to rags, not riches. One thing that fulfilling the divine will does not guarantee, in Jacob’s case, is a life of ease.

If anyone profits materially in this story, it is Esau, the one who has also lost the most emotionally. But nobody wants to leave home. And nobody in this story is loved by God as much as He loved His servant Abraham.

More about: Esau, Isaac, Jacob, The Monthly Portion, Toledot, Torah