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Burden of Proof

Alan Dershowitz on 'The Genesis of Justice'

Aired March 17, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Violence, deception, murder, and incest; crimes from an ancient era and of modern day. According to author Alan Dershowitz, modern law traces its foundations to biblical injustice.

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in Atlanta.

Today, crime, punishment, redemption and revenge -- these are among the many lessons of the book of Genesis. But is the Good Book also one of the first law books? In his new book, Harvard law professor Alan Dershowitz chronicles ten stories of, quote, "biblical injustice," which he says led to modern law.

Alan Dershowitz joins us today from Boston.

And in Washington, we're joined by a professor of government and religion, Father Robert Drinan. And also in Washington, Derek Davis, who's the director of the J.M. Dawson Institute of Church-State Studies at Baylor University.

Alan, first to you. Is the book of Genesis the genesis of law?

ALAN DERSHOWITZ, AUTHOR, "THE GENESIS OF JUSTICE": It certainly is. It's the most interesting book of the Bible, from my point of view, because it's a book about the world before law, before lawyers, before the Ten Commandments. You see these imperfect characters, beginning with Adam and Eve tempted by the serpent, moving toward Noah and Abraham searching for justice. Without rules, we see Jacob rewarded for his deception. He cheats his brother out of his birthright, but he don't kill him.

(INTERRUPTED BY COVERAGE OF BREAKING NEWS)

JEANNE MESERVE, CNN ANCHOR: We're going to take you now to the office of Housing and Urban Development. HUD Secretary Andrew Cuomo's about to speak about a settlement with gun Manufacturer Smith & Wesson.

(JOINED IN PROGRESS)

UNIDENTIFIED MALE: Hello.

ED SHULTZ, PRESIDENT & CEO, SMITH & WESSON: Yes, I can hear you.

ANDREW CUOMO, HUD SECRETARY: Hi, Ed. How are you?

SHULTZ: I'm OK. If you'll give us a second, we'll switch to a better phone.

CUOMO: OK.

UNIDENTIFIED MALE: All right.

SHULTZ: Hang on.

MESERVE: Addressing some technical problems there in the auditorium at the housing -- at the Department of Housing and Urban Development before they begin this event. The CEO of Smith & Wesson, Ed Shultz, is also present at this event, as is Lawrence Summers, the treasury secretary, Stuart Eizenstat, the deputy treasury secretary, the president of Handgun Control, Inc., several big city mayors.

CUOMO: While we're waiting for Mr. Shultz, the cities who are going to be participating by phone include Atlanta, Georgia; Miami- Dade County; Bridgeport; Detroit; St. Louis; Gary, Indiana; Camden, New Jersey; Berkeley, California; Los Angeles; Engelwood; San Francisco and Sacramento.

UNIDENTIFIED MALE: Mr. Ramalo (ph) with Mayor Panelles (ph), we're back on.

CUOMO: They're going to call back. OK. This is HUD and high technology.

QUESTION: Can you read those cities a little slower?

CUOMO: OK. Atlanta, Georgia -- and Mayor Bill Campbell is here with us today -- Miami-Dade County, Mayor Alex Panelles, who is en route, literally; Bridgeport, Connecticut; Detroit, Michigan; St. Louis; Gary, Indiana, Mayor King, who's been very helpful to us; Camden, New Jersey; Berkeley, California; Los Angeles, California, city attorney Jim Hahn (ph), who is en route, I believe; Englewood, California; San Francisco and Sacramento.

QUESTION: What's the agreement, Mr. Secretary?

CUOMO: Mr. Shultz is on the telephone.

SHULTZ: Yes.

CUOMO: OK. Ed, you can hear us now?

SHULTZ: I can hear you now very well.

CUOMO: OK.

First, let me thank you all very much for being with us again today, and the distinguished colleagues who are here on stage, and Mr. Ed Shultz, president of Smith & Wesson.

I've been at this department -- you're with us, Ed?

SHULTZ: Yes.

CUOMO: OK.

I've been at this department for seven years and I can say without doubt that, in my seven years in this department, this is the most important announcement that we have made. We have all said that something must be done about unnecessary gun violence in this country. We've heard the statistics many times -- 30,000 gun deaths every year, 100,000 injured by firearms every year, a rate of firearm deaths for children in this country 12 times higher than the other 25 leading industrial nations combined, almost weekly tragedies bringing these statistics to life or death from Michigan to Ohio to Tennessee in just the last few weeks alone.

But despite all this lost, it felt that no real progress could be made, and the recent rhetoric made it seem that any hope of progress was gone. Indeed, after years of Washington gridlock over common- sense gun safety legislation, two years ago, cities, counties and states turned to the courts for relief with 30 eventually filing suit or threatening to file lawsuits against the gun industry.

Then, as many as you recall last December 8, the president announced that HUD would join local governments in litigation against the industry if we weren't able to forge a sensible compromise, because something had to be done. We always viewed litigation as a last resort, always maintained our belief that negotiation was in all of our best interests.

So we approached the process firm in the belief that reasonable gun manufacturers could sit down with reasonable government officials and reach reasonable solutions. Responsible parties would know that something needed to be done, certainly, to stop the senseless violence and the abuses, but would also know that litigation, which would also threaten the responsible gun manufacturers, was not the answer.

Well, today we announce that we were right, and progress is possible. We have reached a settlement with Smith & Wesson, the nation's largest gun manufacturer. This settlement will bring about fundamental changes in the areas we focused on right from the start: areas of design, distribution and advertising. It mandates, first of all, an impressive array of safety features, including locking devices, child safety features and authorized user technology that will prevent, once and for all, accidental gun deaths and keep children safe.

It creates a system of authorized dealerships like we have in so many other industries that will prevent suspect firearm sales like straw purchasing and sales made without background check that make it easier for criminals to get guns. It bans advertising that appeals particularly to criminals, and it is, as we insisted from the start, an agreement with teeth with a real enforcement mechanism and real oversight. This major accomplishment required two essential ingredients: people showing extraordinary leadership, first of all, and extraordinary cooperation.

First, President Clinton showed extraordinary leadership in this issue from the start, raising this issue and keeping it in the center of our public discourse. The president pushed hard every day for common-sense gun legislation and had the courage to stand up and say that HUD would support a lawsuit against the gun industry, a bold step, indeed, on a different course. Today we see the fruits of the president's vision.

Mr. Ed Shultz, president and CEO of Smith & Wesson, who showed outstanding leadership and also showed good business judgment knowing that these continued lawsuits would be ultimately the death of the gun industry.

The cities, counties and states who started this process months ago: We have with us today Mayor Campbell -- Mayor Panelles is en route -- the attorney generals of the states of Connecticut and New York, Mr. Richard Blumenthal of New York and Mr. Elliott Spitzer of -- Mr. Richard Blumenthal of Connecticut and Attorney General Elliott Spitzer of New York, who set an aggressive course from day one and who said that negotiation was preferable to litigation if we could make the right agreement. And the attorney generals' leadership is evident here today.

Our partners in the White House, Mr. Bruce Reed; the Treasury Department, Secretary Summers, who grabbed hold of this issue right from the very beginning; Deputy Secretary Stu Eizenstat who provided guidance; general counsel Neal Wollan (ph) at the Department of Treasury, who was a get-to-yes attorney and a tireless advocate; our friends at the Department of Justice, Deputy Attorney General Eric Holder; groups like the NAACP and handgun control who made this fight their highest goal; and on a point of personal privilege, my deputy general counsel Max Stier (ph) who literally worked day and night to make this a reality.

On December 14, this group stood in this very room and pledged unprecedented solidarity. We said, one for all and all for one, and it happened. What we do here today is only the first step, but it is a big step indeed. The principles outlined in this agreement provide a framework for a new enlightened gun policy for this nation, and our agreement and compromise rather than our division and hostility establishes a new, positive, productive relationship. After many false starts and after much gridlock, we are finally on the road to a safer, more peaceful America.

I want to thank all of those who worked so hard to make today possible because today really is a collective achievement with all of the people who are on the stage, all of the cities who are on the phone, all contributing to make today possible.

And Mr. Ed Shultz, who is on the telephone, who has shown great civic leadership, in my opinion wise business judgment, but also showing that compromise and agreement is preferable to endless litigation.

Mr. Shultz, we'll turn it over to you at this point. Mr. Shultz was going to join us in person, he is in Hartford, and there is a weather condition, inclement weather in Hartford so he's...

It is good inclement weather, but it is inclement weather, and he is going to be joining us by telephone. Mr. Shultz.

SHULTZ: Good afternoon.

CUOMO: Good afternoon.

SHULTZ: As each of you know, Smith & Wesson has, for much of its life as a company, worked to find ways to continually reduce the misuse of firearms, and particularly in the last three years, we've worked with various entities that have approached us from time to time to seriously look at ways to make our products and products similar to ours safer for the country.

We have reached an agreement today, which we believe will be do two things: first, it will provide for the future viability of the business entity of Smith & Wesson by putting our efforts and our fund toward technology and to make our guns better and safer in the future. The ability for us to continue to produce products that can be sold to ordinary citizens in our country without threatening their Second Amendment rights.

MESERVE: You've been listening to a press conference from the Department of Housing and Urban Development, announcing a major settlement with gun manufacturer Smith & Wesson, the largest gun manufacturer in the country.

HUD Secretary Andrew Cuomo calls this "the first step, but a big first step toward an enlightened gun policy." It would effect the design, distribution and advertising of firearms. It would include locking devices, authorized user technology, and child safety features, which hopefully would cut down on accidental gun deaths. It also establishes an authorized dealership system, and it bans advertising that would appeal specifically to criminals.

It also, we are told, has an enforcement mechanism which includes teeth. Participating in this press conference today, in addition to U.S. government officials, was the CEO of Smith & Wesson, also some mayors of big cities around the country who had brought lawsuit or threatened to bring suit against gun manufacturers for gun violence incidents in their cities.

We will have more on this story as the day progressed. Right now, we are going to take you back to "BURDEN OF PROOF."

VAN SUSTEREN: Thanks, Jeanne. Let's go to Alan Dershowitz, up at Harvard.

Alan, what is your reaction to the latest news on the gun settlement before we get back to your book. ALAN DERSHOWITZ, CRIMINAL DEFENSE ATTORNEY: Well, I think it is a great, great piece of news. This sounds like the beginning of what happened to the cigarette industry, we see one major company breaking with what appears to be the stand of the National Rifle Associate.

On a personal note, it is ironic that it was Andrew Cuomo who broke into the program because his father, former Governor Cuomo is one of the people who gave me a blurb for my book. So I will always be appreciative and not resent intrusion.

But it is a very, very important message, and I think it could mark the beginning of a trend toward gun manufacturers starting to react the way cigarette manufacturers are reacting.

VAN SUSTEREN: And of course, I decline to comment either way, in light of the fact that my husband has been involved in representing some cities against gun manufacturers.

But we are going to take a break and be right back with more on Alan Dershowitz's new book. It is called "The Genesis of Justice." Stay with us.

(COMMERCIAL BREAK)

VAN SUSTEREN: Welcome back to BURDEN OF PROOF.

Alan Dershowitz, Harvard law professor, has a new book, "The Genesis of Justice."

Father Drinan, what is your reaction to his book, is the Book of Genesis the genesis of law?

REV. ROBERT DRINAN, PROFESSOR OF GOVT. AND RELIGION: I commend Alan for his presentation, everything that he writes is always very important.

I do think that he probably takes the Old Testament or Genesis a bit too literally, some of the evangelicals do that, but in the long Catholic tradition, of which I am a part, we have to interpret the bible with some literary sense. He is quite right in saying that this is the roots of our law. However, he does mention Magna Carta, and I think that all of us should recognize that outside of the Judeo- Christian tradition, there is many, many things that have contributed to our law going to back to, not merely Maimonides, but to the original Hammurabi, and also from Asian experience.

DERSHOWITZ: But Father Drinan, I think the big difference with Hammurabi is Hummurabi's was a code, it was a listing of laws, whereas the great contribution of the Old Testament and then the New Testament is that they integrate laws with narrative.

It is the first attempt to justify laws. You find in the Old Testament throughout: Do this because, treat your neighbors well because you were strangers in the land of Egypt.

Take, for example, the decision made by the governor of Illinois a couple of weeks ago to spare the people on death row at least on a moratorium because there were 13 innocent people among them.

I don't interpret the Abraham story literally when he argues with God, but I ask the question: Why didn't God respond to Abraham when he said, if I can find 50, 40, 30, 10 just people in the city of Sodom, spare the whole city.

God should have responded logically, if you find 50, I will spare 50; if you find 10, I will spare the 10. But he, instead, said he would spare the whole city. And I think the message of that is, when the system of justice produces the conviction of innocent, as many as 10 or 20 people, the system itself is flawed, and that's a wonderful lesson the governor of Illinois learned, and I think we can learn from a non-literal reading of the Book of Genesis.

VAN SUSTEREN: Derek, let me ask, Derek Davis a question.

Derek, in the book that Alan has written, he poses this question: Can God's justice be judged by human beings, according to standards of human justice; can they?

DEREK DAVIS, CHURCH-STATE STUDIES PROFESSOR: Well, I think we have to be somewhat careful. Most people who look to the bible as being the foundation for their faith would say that the primary message about the bible is not about justice, principles of justice I think are more secondary or derivative. Many people would tend to say that there is a more important message that flows throughout the entire bible, and that is an attempt by God to develop his own relationship with mankind to bring human beings to himself.

So, while there is lots of principles of justice there, certainly we need to be careful always in terms of taking strictly readings from the Bible and trying to apply that in modern day life.

DERSHOWTIZ: Well, I agree with that, too. I think there's more to the Bible than justice. But I don't think you can understand modern justice without looking at its scriptural sources. And that's why I've been teaching a course at Harvard Law School, now for several years, on the scriptural sources of justice.

The covenant between God and Abraham is so essential to the understanding of democracy. Prior to that covenant, nobody had ever argued with God before; nobody had ever had a personal relationship with God.

You know, the interesting thing about the Old Testament is that it shows injustice; all the characters are flawed and unjust. The New Testament, on the other hand, you can give to your child and say: Follow the teachings of Jesus, this perfect, wonderful man, and you will be a just person.

If you are a member of Islam, you can give your child the book, the Koran, and ask him to follow Mohammad.

Nobody would give their child the Book of Genesis and say: Follow Abraham, who sacrifices -- tries to sacrifice his son; follow Jacob, who deceives his brother; follow Jacob's sons, who slaughter a group of people; follow Joseph, who deceives his brother.

You need interpretation. I agree with Father Drinan that you must interpret. The Catholic tradition is to interpret through the church. The Jewish tradition is to interpret through Midrash or Halakhah.

And in my book, I try to bring all these traditions together and show the way in which these stories of injustice lead to a great recognition of justice and, ultimately, to the 10 Commandments.

I think you can trace every one of the 10 Commandments to one of the stories in the Book of Genesis, not literally read. I don't take the Bob Jones University approach that the Tower of Babble story compels you to separate the races. If you took that to its logical conclusion, you wouldn't even have language studies in schools.

I think you have to read it more broadly, more metaphorically, and more as a challenge.

VAN SUSTEREN: Father Drinan, do you think that it is a good pedagogical tool to use the Bible in a law school to look at the law? or do we trivialize the Bible by doing that?

DRINAN: Well, I don't think so, in that I think all of us use it, maybe not as conscientiously as Alan has. But clearly, we go back to the 10 Commandments. All of those things are given; that you can't have rape or incest; all of those things are forbidden.

You could argue that American criminal law comes directly or indirectly from the 10 Commandments. But I think that there will be some resistances to Alan's book, because all of us are so tired of the Christian Coalition and the Moral Majority. It's in the Bible; ergo, we should apply it here.

But I think that he has given a much more sophisticated presentation, and really has reminded us, once again, that the Bible does have the word of God. And that even those who are non-believers, who don't really think that God has spoken to us, this is a lesson for them that God, in fact, has intervened in giving us some very profound and wise mandates.

VAN SUSTEREN: But Alan, you say in your book -- you refer to God, you say God -- you say: "He -- meaning God -- begins his career as a law giver in this capricious manner." You are calling God capricious when it comes to justice.

DERSHOWITZ: Well, I'm not the only one who does that. The Midrash and interpretations constantly criticize God and put God on trial.

After all, in the first book, he tells Adam and Eve: "If you eat from the tree of knowledge, on that day, you will die." And yet, like a parent, he can't carry through his punishment.

When Cain kills Abel, God puts him in the witness protection program. The first rule against murder is: If you touch -- if you hurt Cain, you will be punished sevenfold. He protects a murderer by prohibiting a murder.

These are, I think, great stories from which the justice -- the stories of justice flow.

You know, you talk about fundamentalism. Reverend Jerry Falwell, I think, was trying to praise this book. He called it "heresy at its best." I don't think it's a heresy because I think the tradition has always been to look at God and look at God's works somewhat critically.

God is a great teacher; you know, he acknowledges his mistakes. He, for example, repents the creation of human beings and then he says to Noah: I won't bring floods. And then he falls back and says I will destroy the whole city of Sodom, and Abraham argues with him and uses strong words and says: How dare you, the judge of all the universe, will not himself do justice?

So it is not I who am being critical of God, it is the wonder of the Bible itself that it encourages challenging everything, even God's justice.

VAN SUSTEREN: You know, Derek, when you talk about justice, you talk about God's justice. There has been said many times that the ultimate injustice is that bad things happen to good people, that happens in the Bible. How do you relate to that in terms of the year 2000 when we look at justice and sort of compare it back to what was written in the Bible?

DAVIS: Well, obviously. if you read the bible, we see that bad things do happen to good people. Cain murdered his good brother Abel, for example. And we look at that, and we say: Here is a solid person, a good person, a pure person, where is the justice in this?

Bad things, in fact, do happen to good people. We look around the world, we see massive annihilation of persons, mass genocide around the world, roughly 150 million people were the victims of genocide throughout the 20th century.

So obviously, this is a world in which bad things do happen to very good people, but that is not necessarily cause to blame God for all of this. Part of the Western legal tradition is not just the bible but also a natural law tradition in which we acknowledge that God has set into place a form of natural law. We have to live according to that natural law.

VAN SUSTEREN: Father Drinan, what do you make of the injustice that Alan lays out in which he quotes from the Bible?

DRINAN: Well, I think that we must remember once again that God has told us that my ways are not your ways. And that when people say why do these terrible things happen we don't know. That's the ultimate mystery that God is our father, we know that, and he loves us, but nonetheless, in his infinite wisdom, there are certain things that we think are dreadful that happens; and in Catholic tradition, we would have to say that he loves us and this is for our good. DERSHOWITZ: But it is interesting, I tried to developed three stages in my book about how God deals with the problem of theodicy, how God deals with problem of bad things happening to good people. First, he says, if you do something, I will punish you right away. It doesn't work because everybody sees he doesn't punish right way. Then, he says, if you do bad things I will punish you in the future, and bad things will happen to your children, in the 10 Commandments it actually says for three or four generations. And then we see that doesn't happen, and so the afterworld is developed much later in the Judeo-Christian tradition.

VAN SUSTEREN: And unfortunately, Alan, that's all the time we have for your new book. Thanks to our guests and thanks for watching.

The parents of JonBenet Ramsey have authored a book on their daughter's murder. The title: "The Death of Innocence." That's our focus Monday on another edition of "BURDEN OF PROOF." And we'll see you then.

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