The deception has taken place. Joseph has been sold into slavery. His brothers have dipped his coat in blood. They bring it back to their father, saying: “Look what we have found. Do you recognize it? Is this your son’s robe or not?” Jacob recognized it and replied, “It is my son’s robe. A wild beast has devoured him. Joseph has been torn to pieces.”
We then read: “Jacob rent his clothes, put on sackcloth, and mourned his son for a long time. His sons and daughters tried to comfort him, but he refused to be comforted. He said, ‘I will go down to the grave mourning for my son’ ” (37:34-35).
Why did Jacob refuse to be comforted? A midrash gives a remarkable answer. “One can be comforted for one who is dead, but not for one who is still living.”
Jacob refused to be comforted because he had not yet given up hope that Joseph was alive. That, tragically, is the fate of those who have lost members of their family (the parents of soldiers missing in action, for example), but have no proof that they are dead. They cannot go through the normal stages of mourning because they cannot abandon the possibility that the missing person is still capable of being rescued. Their continuing anguish is a form of loyalty; to give up, to mourn, to be reconciled to loss is a kind of betrayal. In such cases, grief lacks closure. To refuse to be comforted is to refuse to give up hope.
On what basis did Jacob continue to hope? The late David Daube made a suggestion that I find convincing. The words the sons say to Jacob – “Haker na – Do you recognize this?” – have a quasi-legal connotation. Daube relates this passage to another, with which it has close linguistic parallels:
“If a man gives a donkey, an ox, a sheep or any other animal to his neighbor for safekeeping … If it [the animal] was torn to pieces by a wild animal, he shall bring the remains as evidence and he will not be required to pay for the torn animal” (Shemot 22:10-13).
The issue at stake is the extent of responsibility borne by a guardian (shomer). If the animal is lost through negligence, the guardian is at fault and must make good the loss. If there is no negligence, merely force majeure, an unavoidable, unforeseeable accident, the guardian is exempt from blame. One such case is where the loss has been caused by a wild animal. The wording in the law – “tarof yitaref – torn to pieces” – exactly parallels Jacob’s judgment in the case of Joseph: “tarof toraf Yosef – Joseph has been torn to pieces.”
We know that some such law existed prior to the giving of the Torah. Jacob himself says to Laban, whose flocks and herds have been placed in his charge, “I did not bring you animals torn by wild beasts; I bore the loss myself” (Bereishit 31:39). This implies that guardians even then were exempt from responsibility for the damage caused by wild animals. We also know that an elder brother carried a similar responsibility for the fate of a younger brother placed in his charge (i.e. when the two were alone together). That is the significance of Cain’s denial when confronted by G-d as to the fate of Abel: “Am I my brother’s guardian (shomer)?”
We now understand a series of nuances in the encounter between Jacob and his sons when they return without Joseph. Normally they would be held responsible for their younger brother’s disappearance. To avoid this, as in the case of later biblical law, they “bring the remains as evidence.” If those remains show signs of an attack by a wild animal, they must – by virtue of the law then operative – be held innocent. Their request to Jacob, “haker na,” must be construed as a legal request, meaning, “Examine the evidence.” Jacob has no alternative but to do so, and in virtue of what he has seen, acquit them.
A judge, however, may be forced to acquit someone accused of the crime because the evidence is insufficient to justify a conviction, yet he may hold lingering private doubts. So Jacob was forced to find his sons innocent, without necessarily believing what they said. Jacob did not believe it, and his refusal to be comforted shows that he was unconvinced. He continued to hope that Joseph was still alive. That hope was eventually justified. Joseph was still alive, and eventually father and son were reunited.