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Stretching the Law

Stretching the Law

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Published by davidwalters
Essay on casuistic stretching, legal fictions, and such.
Essay on casuistic stretching, legal fictions, and such.

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Published by: davidwalters on Aug 12, 2014
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08/27/2014

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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 as far as they can, even to the breaking point. This is hardly surprising inasmuch as we
 
THE JURISPRUDENTIA CLUB
 
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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 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 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.
 
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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' 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 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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