Sodom, Gomorrah, and the Origin of Due Process of Law - JD Supra
Constitutional scholars agree that the guarantee of due process of law originated with the Magna Carta:
“Due process” originated in 1215 with the English Magna Carta, an important provision of which was that no freeman would be deprived of certain rights except “by the judgment of his peers and by the law of the land.” This guarantee was later codified by Parliament in a series of statutes, one of which replaced “law of the land” with “due process of law.” Sir Edward Coke and other influential writers on English law declared the two phrases synonymous and this view was widely accepted by American courts and commentators during the late eighteenth and early nineteenth centuries.[1]
In fact, this principle originated thousands of years earlier in a criminal trial. The case: The Lord v. Sodom and Gomorrah. The prosecutor and judge was the Almighty. Defense counsel, Abraham. It is reported at Genesis, Chapters 18 and 19.
According to the Bible, God visits Abraham to tell Abraham that his wife Sarah will bear him a son. When God is about to leave, God tells Abraham that God has heard the cry of Sodom and Gomorrah and that “their sin is exceedingly grievous.”[2] In what may be the first application of the burden of proof, God says that before rendering judgment, God will conduct an investigation to see if what God has heard is true.[3] God sends two angels to investigate.[4]
Fearing what that judgment may be, and having family in Sodom, Abraham says to God:
23 And Abraham drew near, and said: 'Wilt Thou indeed sweep away the righteous with the wicked?
24 Peradventure there are fifty righteous within the city; wilt Thou indeed sweep away and not forgive the place for the fifty righteous that are therein?
25 That be far from Thee to do after this manner, to slay the righteous with the wicked, that so the righteous should be as the wicked; that be far from Thee; shall not the judge of all the earth do justly?'
26 And Hashem said: 'If I find in Sodom fifty righteous within the city, then I will forgive all the place for their sake.'
27 And Abraham answered and said: 'Behold now, I have taken upon me to speak unto the L-rd, who am but dust and ashes.
28 Peradventure there shall lack five of the fifty righteous; wilt Thou destroy all the city for lack of five?' And He said: 'I will not destroy it, if I find there forty and five.'
29 And he spoke unto Him yet again, and said: 'Peradventure there shall be forty found there.' And He said: 'I will not do it for the forty's sake.'
30 And he said: 'Oh, let not the L-rd be angry, and I will speak. Peradventure there shall thirty be found there.' And He said: 'I will not do it, if I find thirty there.'
31 And he said: 'Behold now, I have taken upon me to speak unto the L-rd. Peradventure there shall be twenty found there.' And He said: 'I will not destroy it for the twenty's sake.'
32 And he said: 'Oh, let not the L-rd be angry, and I will speak yet but this once. Peradventure ten shall be found there.' And He said: 'I will not destroy it for the ten's sake.'
No matter what you believe, you have to marvel at Abraham’s advocacy. Thousands of years before Aristotle's authored his "modes for persuasion" ethos, logos, pathos,[5] Abraham applied them brilliantly. Unlike John Adams and Abraham Lincoln and Clarence Darrow and Edward Bennet Williams, Abraham did not have Cicero to learn from.[6] Larry Pozner and Roger J. Dodd were not around to demonstrate how to conduct a cross examination.[7]
Let’s take a closer look at what Abraham did. Abraham first appeals to God’s better angels, “shall not the judge of all the earth do justly?” (Ethos). He argues against collective punishment. He argues for proportionality. (Logos). He asks God not to be angry with him if he has asked for too much. And he convinces God not to destroy the cities if God can find ten righteous (probably men) (Pathos).
The angels go to see Abraham’s brother Lot in Sodom and are attacked, confirming what God had heard. Not finding ten righteous, Sodom and Gomorrah are destroyed. But first, Abraham’s family is allowed to flee. Sentence is imposed, but Abraham is still able to save some innocents.[8]
So many principles of our democracy flow from this one passage. If God is not above the law, no king or president can be above the law either. Our leaders serve and are subservient to the law. We are a nation of laws and not men.
Before a conviction for a crime, there must be proof, a person cannot be condemned based upon mere hearsay. Even God did not trust what God had heard. God sent his agents, angels, to investigate and confirm the truth.
It is better to preserve the lives of the innocent, even if the guilty are permitted to go free.
And last of all, always ask leading questions, even of the Hashem.
[1] Ryan Williams, “Substantive Due Process in Historical Context,” Cato Unbound: A Journal of Debate, February 10, 2012, https://www.cato-unbound.org/2012/02/10/ryan-williams/substantive-due-process-historical-context/#:~:text=%E2%80%9CDue%20process%E2%80%9D%20originated%20in%201215,of%20which%20replaced%20%E2%80%9Claw%20of
[5] Aristotle, The Art of Rhetoric (Penguin Classics) Paperback – March 3, 1992.
[6] Cicero: De Oratore I-III (Classic Commentaries) Paperback – July 25, 2002.
[7] Pozner and Dodd, cross-Examination: Science and Techniques, Third Edition Hardcover – May 1, 2020.
[8] For a different interpretation of Abraham’s plea with God, see Alan M. Deshowitz, The Genesis of Justice, Chapter 4, Abraham Defends the Guilty—And Loses (Warner Books 2000)
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