THE JURISPRUDENTIA CLUB

Page 1 of 10



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

Page 2 of 10

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.
THE JURISPRUDENTIA CLUB

Page 3 of 10

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....'"
THE JURISPRUDENTIA CLUB

Page 4 of 10

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
THE JURISPRUDENTIA CLUB

Page 5 of 10

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
THE JURISPRUDENTIA CLUB

Page 6 of 10

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?
THE JURISPRUDENTIA CLUB

Page 7 of 10

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
THE JURISPRUDENTIA CLUB

Page 8 of 10

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)
THE JURISPRUDENTIA CLUB

Page 9 of 10

"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
THE JURISPRUDENTIA CLUB

Page 10 of 10

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.
XYX