ON STRETCHING THE LAW
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 as far as they can, even to the breaking point. This is hardly surprising inasmuch as we 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 it cannot. 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 became Israel.
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 briefs are 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 lawyers deliberately 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, the history 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 Pharisees who 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 their interpretation 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 ad infinitum.
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 is based on the sense of justice; the Greeks had Zeus declare that any adult without that sense 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.
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’ law after 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 the independent 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 and Sadducees 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 course some 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 to whatever 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 on the 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 Egyptian hence 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 oral law, sometimes called ‘the Two Torahs’, is being resolved over the centuries by ‘casuistic stretching,’ which promotes the organic, living integrity of our dynamic order. The conjunction of freedom and order may seem oxymoronic or patently absurd at first glance, 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 the casuists 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’, a chapter of 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….'”
In a another chapter, ‘Protestant Transition’, Burke speaks of “the ways in which individualistic enterprise, stimulated by colloquial translations of the Bible, whereby every 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 themselves and 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. In Calvinism, 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 to demoralization, since the reality of a monetary practice was being sentimentally denied. And his spiritual symbol was ‘economically implemented’ by the ambivalence whereby the 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 more modern 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 moot because 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 with the fall of monarchs and the rise of nation-gods, the general commodity fetish, and the demoralizing 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 the tower 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 to eliminate 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, the Midrash also includes edifying homilies and stories called the ‘Haggada.’ On the other hand, the Mishnah (‘Teaching’ or ‘Repetition’), employs the inductive method: the scholars consider the case and induce general principles, rarely referring to particular scripture, 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 the Gemara, 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 traditions preceded 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 the Babylonian 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 the Talmud—the Talmud literally saved the Jewish culture after the revolts and the ensuing Roman 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 it should 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 Pentateuchal warrant 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 that in the Pentateuch, and if we insist that resurrection and the hereafter is not in the Pentateuch, 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 consulting the 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, the Mishnah 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 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 (independently of 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 the Pharisaic 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 a revival, 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 the almost 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 the Lord.”
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 person about 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?
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 involving crime 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 Torah are 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 above considerations 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 the Holy 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, religious indoctrination 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 duly impressed 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’s punishment 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 the criminal’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 said he 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 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 majority decision 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 the opportunity 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 famous declaration that, by ingenious tactics in the examination of witnesses, he would abolish capital punishment. Kirschenbaum, in his article, ‘The Role of Punishment in Jewish Criminal 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 his colleague 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 extreme conservatism 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). He quotes 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 found throughout 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 Ben Azaryah said it is a murderous court if it pronounced a death sentence once in seventy years.’ (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 Jewish law: “And these are the ordinances which you will set before them.” (Exodus 21:1)
“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 ordinances which 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 people into 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 has heard 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 – absorbed almost 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 we have 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, Rabbi Blech 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? A moral 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 certain rules 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 all children 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 grammar book. Nevertheless, children will revolt; they will fight the angel of the Lord just as Jacob did.
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 universal human god. Otherwise there would be no god in the form of man. The world does not 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.