stretching the law

8/2/2019 Stretching the Law

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THE JURISPRUDENTIA CLUB

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Permission Granted by Darwin Leon, www.darwinleon.com

STRETCHING THE LAW

By David Arthur Walters

Laws are made to be stretched if not broken. Fundamentalists may keep their

commandments exactly as written, but almost everyone else stretches their own rules asfar as they can, even to the breaking point. This is hardly surprising inasmuch as we




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legislate against our natural inclinations. Being born individual is the original sin, for the

individual would satisfy its will to live forever without impedance if only it could, but itcannot. The individual rebels in vain against the very collective that it needs for self-

preservation. Forged by resistance to its will, the individual human becomes a social

person. The god within the individual wants total freedom even unto self-destruction; but

the far more powerful society needs individuals; thus Jacob fought with god and becameIsrael.

American settlers protested against the arcane common law principles of the judicial

priesthood. They wanted their laws in written simply in stone, but they cannot get rid of the common law for its essence is hidden in their hearts. Once positive laws are written

down, every effort to wiggle out them is made: A relevant statute is read. Written briefsare filed, and oral arguments are duly recorded. Judgments are made, to be upheld or

overturned. Precedents are established and recorded to be duly pondered upon; their

applicability to other cases is subjected to further argument.

The death penalty was legislated in the United States for capital crimes, and then lawyersdeliberately made it difficult to execute the offenders after they were convicted. Perhaps

after the death penalty is abolished in all the states because it is deemed uncivilized, thehistory books will deny it every existed after two thousand years have passed, except as a

threat, as some Jewish teachers have claimed of their history of capital punishment.

Christians may defame the Pharisees unto Doomsday, but we should confess that, without

the Pharisees, there would be no Christianity. Our law is the 'living law’ of the Phariseeswho believed in resurrection and eternal life: a criminal has every chance to be forgiven

and saved. Our law is not the 'dead letter' law of the Sadducees who did not believe in

salvation, not even in an afterlife, but rather thought that the individual is free to break

the law and to be punished exactly as prescribed, without possibility of pardon or parole.

Whatever is written down as law in our 'free' country is a fulcrum for perpetual

controversy. We have our Sadducean torah, but the lawyers are standing by with the

Pharisaic torah, and they may not only stretch the law but go so far as to claim theirinterpretation of the written law and their principles contradicting the statutes are superior

to the recorded law. Given the political power of the Pharisees, the Sadducees recognized

the living law, but they do not consider it as binding, hence the controversy continues adinfinitum.

The foremost legal fulcrum for the United States is its Constitution, mistakenly said by

some scholars to be the “ground” of the law. The writing itself is superfluous because it isbased on the sense of justice; the Greeks had Zeus declare that any adult without thatsense of justice should be put to death or banished. Once things are written down, people

tend to forget them. We should have a copy in our pocket just in case our memory fails

us. It would behoove everyone to memorize the Constitution, the logical elaboration of our sense of justice. Few people today can remember even five of the Ten

Commandments in right order; for instance many people do not know the commandment

proscribing murder is in the bottom half of the list.




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When we read the Constitution and examine the opinions of the highest judicial

authorities, we discover that our founding fathers did not get rid of the 'common' lawafter all; indeed, many of the poorer colonial Americans counted on the English Common

Law for civil rights not afforded to the Original Americans or to the slaves. Nor did our

founding fathers rid America of the high priesthood interpreting those freedoms for

society's own good. Jefferson's effort to use the impeachment process to smother theindependent Supreme Court in its crib failed, as did the later efforts of the Radical

Republicans to mock the English parliamentary system. We find both Pharisees andSadducees on that high court. We are sometimes given to wonder at its apparent

hypocrisy, and to think that our beloved English law is illogical or unjust after all, until

the rabbis appear to smooth over the differences between reality and ideality. Of coursesome explanations must remain apocryphal or 'hidden' in the true sense of the word: they

must never be written down.

When Moses said, "Write this law down," did he mean that law should be limited towhatever was written down? Not according to some rabbis. The law itself existed before

it was written down, and was preserved by oral tradition, gradually recorded in writing.The living law hidden behind the writing still has authority over the language petrified onthe page. The oral law must always have precedence. Moses was not a priest or a scribe,

he was a prophet having direct access to the Almighty; his word was law. Moses may

have been illiterate, although it is usually supposed that he was educated as an Egyptianhence familiar with the language of the New Kingdom and not with that of the Hebrew

tribes. In either case he needed a scribe to write down the Torah for literate priests to

recite to the illiterate public.

The apparent contradiction between the static Jewish written law and the dynamic orallaw, sometimes called 'the Two Torahs', is being resolved over the centuries by 'casuistic

stretching,' which promotes the organic, living integrity of our dynamic order. Theconjunction of freedom and order may seem oxymoronic or patently absurd at firstglance, but upon reflection it can be viewed as ethical and effective.

'Casuistry' is the application of general principles to particular cases; it is a process that

members of the legal profession, representatives of the litigious human, are involved in

every day. Needless to say, sometimes the process gets a bad reputation. We suspect thecasuists have distorted or stretched the law and the truth. The sophists might be as

dishonest as their clients and witnesses. More lies are told in court than anywhere else on

Earth even though such lies might be punished by fine and imprisonment.

Kenneth Burke defined ‘casuistic stretching’ at length in 'Dictionary of Pivotal Terms', achapter of his Attitudes Toward History (1984):

"By casuistic stretching, one produces new principles while theoretically remaining

faithful to old principles. Thus, we saw the church permitting the growth of investment,in a system of law that explicitly forbade investment. The legalists 'took up the slack' by

casuistic stretching', the 'secular prayer' of 'legal fictions....'"




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In a another chapter, 'Protestant Transition', Burke speaks of "the ways in which

individualistic enterprise, stimulated by colloquial translations of the Bible, wherebyevery man could become his own interpreter without training in the collective body of

interpretation accumulated by the church, served to intermingle material ambition with

high moral motives...

"Sincerity and guile were hopelessly interwoven as enlightenment and stupidity. The men

who enunciated the doctrine of the 'poor church' probably meant just what they said: that

the church should not be rich, like a Babylonian whore, but poor like Christ... the

sovereign used the doctrine to justify the appropriation of church lands for themselvesand their clique.... In the feudal pattern, the casuistic fictions had tended to confine

'investment for profit' to a comparatively small class of rulers and big churchmen. InCalvinism, this 'salvation device' was 'democratized' - as Calvin discarded the legalistic

subterfuges and placed positive sanction upon the taking of 'interest' in general. His

notion of Providence 'transcended' the conflicting clutter that amounted todemoralization, since the reality of a monetary practice was being sentimentally denied.

And his spiritual symbol was 'economically implemented' by the ambivalence wherebythe spiritual futurism of 'providence' could be equated with the worldly futurism of 'investment.' (Later on, instead of separating 'interest' from 'usury', Bentham came right

out with his formal 'Defense of Usury.') This move, so necessary for the development of

business enterprise, was further backed by a new philosophy of justification, with moremodern connotations of 'ambition.'"

We add in this interpretative vein that the Reformation, as far as the Church was

concerned, was an atheistic movement: the protesters were really 'atheists.' Some leftists

identified Protestants with the Jews, claiming the question of Jewish civil rights was mootbecause the Protestants were for all intents and purposes Jews themselves. The selling out

of Christ, the tucking away of god in heaven, the death of 'god' on Earth, dovetailed withthe fall of monarchs and the rise of nation-gods, the general commodity fetish, and thedemoralizing worship of money. It takes an economic determinist to know one.

Nonetheless, scientific materialism is a spiritual or mental form, and, like Luther, we

progress by aid of linguistic stretching, from doing our natural duty on the privy in thetower to the most sublime considerations thereupon.

Burke does not condemn casuistic stretching; to do so would bring the progress of history

to a halt. It is an underlying dialectical process at the very crux of existence and being, a

critical juncture for which we should 'enunciate a methodology' rather than try toeliminate it. That is, we should be conscious of 'casuistic stretching', and control it for the

good of everyone concerned.

Now the legal stretching of the Jewish law is represented by the Midrash and the

Mishnah, bodies of Jewish law derived from oral tradition. The Midrash ('Exposition' or'Investigation') is deductive: the scholars begin with scriptural law and deduce

applications to present cases therefrom; the stretching process often involves a

considerable amount of twisting. Besides that 'Halakha' (legal statement) content, theMidrash also includes edifying homilies and stories called the 'Haggada.' On the other




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hand, the Mishnah ('Teaching' or 'Repetition'), employs the inductive method: the

scholars consider the case and induce general principles, rarely referring to particularscripture, and render a finding in accord with their principles. The Mishnah, then, is

separate from the Midrash, but the Mishnah often quotes the Midrash.

The Mishnah as we know it was written down along with commentary, called theGemara, during the third century of the Common Era. Mishnah plus Gemara (rabbinical

teachings subsequent to the destruction of the Second Temple) constitutes the Talmud.

Other writings believed to be recordings of old oral law or mishnah have been found,

dating a century or so prior to the appearance of Jesus Christ. Of course oral traditionspreceded the invention of writing. Some rabbis trace the Mishnah back to Moses. Other

scholars attribute it to Ezra the scribe and his contemporaries, who returned from theBabylonian exile and built the Second Temple: this thesis involves the rise of a scholarly

elite at the time of the Maccabean Revolt, the Pharisees, in contradistinction to the

Sadducean priesthood purportedly descended from Sadoc, the chief priest of King David.Since the oral law was not written down then, there is a great deal of conjecture and

controversy appended thereto as to what relation it might have to the Mishnah in theTalmud—the Talmud literally saved the Jewish culture after the revolts and the ensuingRoman destruction.

Many laws appearing in the Mishnah are not referred to or authorized by the Pentateuch.

No provisions are made in the Pentateuch for the Jewish court known as the Bet Din. The

Pentateuch does not dictate when the Shema (daily prayers) should be read or that itshould be read at all. Prayers, the marriage contract, the ritual reading of Esther and the

Pentateuch and the Prophets, are not mandated. It knows nothing of a New Year, or of

interrogating witnesses prior to proclaiming the New Moon. There is no Pentateuchalwarrant for the Mishnaic procedures in respect to Yom Kippur. The core teaching of the

Mishnah is the dogma of the resurrection and the world to come, yet we do not find thatin the Pentateuch, and if we insist that resurrection and the hereafter is not in thePentateuch, the Pharisees can rightfully exclude us from the world to come in case it does

exist, therefore the Oral Torah is superior to the Written Torah. And we have only

mentioned a few discrepancies the rabbis will be glad to reconcile for us after consultingthe Talmud.

Daniel Jeremy Silver, in The Story of Scripture, From Oral Tradition to the Written Word

(1990), identifies the Talmud as “Israel's Second Scripture.... The Mishnah quickly

became the foundation stone of a reshaped Torah tradition." According to Silver, theMishnah structure was new, and set forth on the authority of the rabbis alone formulas

not in the Pentateuch.

"Everyone admits that the Mishnah represents something new under the Jewish sun, but

the rabbis would have argued that things have not been so much changed as reorganized,a matter more of style than of substance. Laws supplementing the written Torah had

existed since Sinai, and the Tannaiam (teachers of the Mishna) believed they had merely

drawn together what had always been present. Religious reformers almost always claim




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that they are not breaking new ground but going back to the original revelations and

providing a fuller understanding of it."

Silver quotes the Mishnah: "R. Zeria said in the name of R. Yohanan: 'If you come across

a Halakha (a statement of God's law by the rabbis) and if you do not know its scriptural

source, do not set it aside for many laws were dictated to Moses on Sinai (independentlyof Scripture) and all of them are embodied in the Mishnah" (j. Hag. 1:8; j. Peah 2-4)

On the other hand, Ellis Rivkin, in A Hidden Revolution, supports the rabbis who argue

for an older origin of the Mishnah. He posits that, during the Maccabean Revolt, the

scribes deliberately usurped power from the Aaronite line of high priests (Aaron, Eleazar,Phinehas, Zadok) using every means at hand, including segments of the Written Torah

cited out of context, to support the elevation of Oral Law over Written Law, and thePharisaic scholarly elite over the Sadducean priests.

Due to the lack of convincing evidence, we are left to speculate on whether we have old

or new wine in our new skin. We turn to The Jews, Their History, Culture, and Religion,edited by Louis Finkelstein, (1949) for a further explanation of the process of casuistic

stretching, wherein Gilbert Murray's study of Greek religion is quoted:

"When change does come and is consciously felt we may notice a significant fact about

it. It does not announce itself as what it was, a new thing in the world. It professes to be arevival, or rather an emphatic realization, of something very old.... This claim of a new

thing to be old is, in varying degrees, a common characteristic of great movements. The

Reformation professed to be a return to the Bible.... The tendency is due in part to thealmost insuperable difficulty of really inventing a new word to denote a new thing. It is

so much easier to take an existing word, especially a famous word with fine associations,

and twist it into a new sense."

Not only did the Mishnaic scholars twist the meanings of old words into new meanings,they cited segments of the Pentateuch out of context, invented new laws, devised a

special Mishnaic Hebrew dialect that included Persian and Greeks words, and coined

technical terms unheard of in the Written Torah. And they did not say, "Thus sayeth theLord."

The liberal application of the Mishnaic law to penal cases seems to give the lie to the

strict Pentateuch. Circumstantial evidence is not allowed by the Mishnah. There must be

two witnesses to the crime, and those witnesses cannot be relatives: Moses and Aaron

would be disqualified as witnesses. The witnesses must give a warning to the personabout to commit a crime, and that warning is invalid if given more than a few seconds

prior to the crime: the time it takes to say, "Peace be upon you, my teacher, my master."For the warning to be valid the potential criminal must acknowledge the warning and

indicate he or she is intentionally ignoring it. And that is not all.

How absurd! Casuistic stretching must be called upon if we are to make any sense of it at

all. How is this absurdity explained today?




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Aaron Kirschenbaum, in Jewish Law and Legal Theory (1994) states: "The impracticality

of the classical Jewish law and its helplessness in coping with social problems involvingcrime and punishment are proverbial." He quotes the view of the fourteenth-century

rabbi, Nissim of Gerondi (the Ran), that "the non-rational commandments" of the Torah

"have nothing to do with maintaining the political stability of society—they have their

justification solely in bringing down the Divine Effulgence... The civil laws of the Torahare directed more to that elevated purpose than to the maintenance of our society, for this

latter purpose could be achieved by the king whom we shall appoint over us."

Kirschenbaum clarifies the medieval position: "Thus, the king's administration of criminal justice is practical in nature, created to cope with the everyday ordering of

society; it is parallel to the criminal codes of other nations. But the classical code is aboveconsiderations of societal utility. 'Inherently just', it is nothing less than a body of ritual

whose mystical effect is to bring down the Divine Effulgence upon the Chosen People.

Indeed the criminal code of Scripture is no less a ritual than the sacrificial offerings of theHoly Temple and, like them, is no-pragmatic in purpose and non-utilitarian in nature...."

Furthermore, "The rabbis of the Talmud and their medieval successors regarded the

criminal law of the Torah as primarily a mighty instrument of character training, religiousindoctrination and spiritual edification, and only secondarily (and sometimes not at all) as

of practical import." Moreover, as far as the teachers were concerned, "Teaching was

uppermost in the mind of the divine legislator, the penalties of minor significance....

Punishment was thus rarely meted out, but the serious nature of the infraction was dulyimpressed on the people."

He goes on to say that, when the situation got out of hand and punishment was warranted,

the king's law was exercised. Besides, the rabbinical courts had sufficient emergency

provisions in the Talmud to deal with exigencies. Finally, there was always God'spunishment to count on.

Some authorities believe the absurd conditions set forth in the Mishnah alongside

descriptions of the manner of executions, say, the pouring of molten lead down thecriminal's throat while being careful not to hurt his neck while pulling it backward, are

merely the pipe dreams of rabbis who had no penal authority. That is, since the Romans

took away the Sanhedrin's jurisdiction over capital crimes, the so-called obsolescence of capital punishment was merely utopian wish fulfillment, perhaps projected in memory of

large numbers of Jews being slaughtered by the Romans. Furthermore, testimony exists

in the New Testament that the Sanhedrin, when it was in session, was executing people

right and left. Even in the Mishnah we have a dissenting opinion from a rabbi who saidhe saw a criminal one day and stood on his grave the next.

However, Professor Kirschenbaum believes the supposed obsolescence of capital

punishment was not merely a later, 'utopian' fiction, but a longstanding reality. In favor of his hypothesis, he recalls a member of the Tannaiam, Rabbi Akiva ben Joseph (50-132),

who inspired the rebel, Bar Kokhba, to revolt. Akiva was an illiterate shepherd who was

encouraged by his beautiful wife Rachel to study the Torah at the late age of 40. In short




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order, Akiva became the most prominent Tanna and Jewish leader of his day. He

advocated democratic procedures among the scholars, urging them to rely on majoritydecision rather than personal authority, and was responsible for the canonization of some

of the books of the Hebrew Bible. When he was tortured by his executioners for

fomenting rebellion, he recited the 'Shema' calmly without sign of pain. When asked by a

Roman if he was a magician, he replied, "I am not a magician, but I rejoice at theopportunity now given to me to love my God with my life." Then he uttered "One" (god)

and died.

It was Rabbi Akiva, who, together with his colleague Rabbi Tarfon, made the famousdeclaration that, by ingenious tactics in the examination of witnesses, he would abolish

capital punishment. Kirschenbaum, in his article, 'The Role of Punishment in JewishCriminal Law,' asks how those pious rabbis could say such a thing, since they of all

people knew of the biblical injunction, "and he shall surely die.” "What are we to make of

all this?" asks Kirschenbaum. "The explanation usually proffered for the 'romanticism'that characterizes the rabbinic (i.e. tannaitic) penology is the historical setting in which

the Rabbis found themselves. The Jewish community had been deprived of its jurisdiction over criminal matters approximately one hundred years before Akiva and hiscolleague made their famous declaration. Hence, since 'the dirty work' of criminal

punishment was in the hands of the Roman authorities, or so the argument goes, these

rabbis could allow themselves the luxury of irresponsibility in matters of law and order.

"This explanation, however, ignores the great piety of the Rabbis and their extremeconservatism when it came to preserving traditional teachings. It also ignores the feverish

activity with which R. Akiva sought to achieve the restoration of Jewish independence.

Surely, had he succeeded he could ill-afford the luxury of irresponsibility in matters of law and order."

Perhaps the archeologists will uncover more evidence in favor of the Jew's virtual

abolition of the death penalty. We return to the jurisprudence of the question in Rabbi

Benjamin Blech's Understanding Judaism, The Basics of Deed and Creed (1991). Hequotes the written law:

'And he who curses his father or his mother shall surely be put to death.' (Exodus 21:15)

"Isn't it obvious that Judaism is a strong proponent of the death penalty? What needs to

be addressed is the almost incredible contradiction to this view, which is foundthroughout the Talmud.... There is a Mishnah that teaches us: 'A Sanhedrin that issues a

death sentence once in seven years is considered a murderous court. Rabbi Elazar BenAzaryah said it is a murderous court if it pronounced a death sentence once in seventyyears.' (Makot 7a) How could the Sages call a Sanhedrin that carries out the will of God a

'murderous court'? If the Torah says 'yes,' how could the Mishnah say 'no'?"

Good question. Rabbi Blech instructs us to consider the opening verse of Exodus in order

to understand the apparent contradiction and to have insight into the purpose of Jewishlaw: "And these are the ordinances which you will set before them." (Exodus 21:1)




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"Legal systems," advised Rabbi Blech, "are set up to tell us what to do after crimes have

been committed.... Every Jew must know the law because 'These are the ordinanceswhich you shall set before them'—before, not after. Jewish law is meant to be studied by

everyone because the essence of Jewish law is preventative rather than punitive."

Our rabbi admits that the Torah often states 'mot yumat', and that is usually translated,'He shall die', but he says the proper translation is 'He should die,' because "that is what

he deserves. But God does not really want him to be executed." Rather, the purpose of the

severe injunctions of the Written Law is educative:

"Judaism found a remarkable alternative to capital punishment. Indeed, gather the peopleinto the town square.... Let the people hear the words of God Himself. He who does such

and such shall surely be put to death. Imagine a child who from the earliest days hasheard in the name of the Almighty that cursing or smiting parents is a capital offense.

Whoever does these things should die. Hard to imagine that such a child would treat

lightly the commission of these offenses." Moreover, the goal of knowing these laws "is

not that they know legal consequences, but rather than legal consequences - absorbedalmost with mother's milk and continuously part of our spiritual nourishment - will, we

hope, ensure that our people are immunized against perpetrating any of those acts wehave so carefully studied." As for the death penalty, yes, it is in the Torah, "but it is only

there to make us aware of how much we ought to make us aware of how much God

detests every crime - and therefore how much we ought to make certain to avoid them."

The Talmud allows emergency measures to be taken against criminals; however, RabbiBlech believes that a world vaccinated with the teachings of the Torah would not require

emergency measures since it would not sink into the "depraved depths of our days."

Now what is the moral of our controversial story about the development of the law? Amoral education will result in a moral society.

The mores of cultures are said to be relative; almost any sort of behavior can be mandated

or prohibited according to the various folkways people embark on. But most of us believe

human beings despite their differences have a common nature best preserved if certainrules of behavior are observed. For example, almost all cultures believe children should

respect their parents. Children had better believe it, they had better learn to love or else.

And since children will get out of hand, especially when their parents, because of love or

neglect, are too liberal, a commandment might be posted in every home enjoining allchildren to respect their parents or else. Or else be dragged out of the house and stoned to

death. When the child learns to read, this commandment would be in his first grammarbook. Nevertheless, children will revolt; they will fight the angel of the Lord just as Jacobdid.

Yes, the naive individual would have god-like freedom from all restraints. And it is that

will to lawlessness that empowers the society at large to love itself, to protect that

rebellious god from total destruction by his kind, thus he is sheltered by the universalhuman god. Otherwise there would be no god in the form of man. The world does not




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need humankind, and can do very well without us, but our gods need us. We do our best

to express the law written in our existence, but our words, whether spoken or written,shall never be that perfect Being.

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