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What sort of person would write down rules then proceed forthwith to break them? Fanatic literalists do their very best to keep their commandments exactly as written, but almost everyone else stretches their own rules as a matter of habit, some beyond the breaking point. Take, for instance, the New Year's resolutions seemingly made by almost everyone to be broken in a matter of days if not hours. Despite all good intentions, such violations are natural to those who legislate against themselves, especially when the habits of the selfish self are stronger than the will of the socialized self split off and divided back against it.



A person is a working synthesis of individual and society - the distinction between psychology and sociology is formally made for the sake of explanatory convenience. The individual factor of the person tends to be a rebel likely to rebel against its own rules in the absence of witnesses and other more punitive social forces. The individual god wants total freedom even unto self-destruction; but the society needs individuals; thus Jacob fought with god and became Israel.



Humans are social beings who need witnesses to better keep their resolutions. Therefore, for example, smokers who would quit smoking are sometimes told to tell everyone they have quit smoking. The internalized, private witness has then been reinforced with a public witness. Alas, since the habit is strong and the individual rebel would be wild, that alone may not suffice. The individual cheats; hopefully his guilty conscience and self-disgust will provoke him to make a greater cessation effort, for practice makes perfect. Then, again, maybe not, for perhaps his pain is alleviated by a few more smokes. We must leave him with his therapist, and to the court if the smoking of self-destructive substances happens to be prohibited by the law, "Thou shalt not smoke or else!" And self-destruction may very well be prohibited by law, for the human self is a social self, and its destruction works harm to all; there is no theoretical limit on how far the state may go to protect the welfare of society, for that is its function. On the other hand, in the absence of evil, there would be no goods to struggle for, no human society, no state, no heaven or hell. So be it.  



As for society, in formal contradistinction to the individual - What sort of society would, for example, legislate the death penalty for certain crimes, then deliberately make it virtually impossible to execute the law after those crimes were committed? We do not have to look far for such a society: consider the United States.



American settlers from Europe wanted their laws in written in stone. They protested against the arcane and vague common law principles of the judicial priesthood of the old world. Yet once the positive laws were written down, every effort to wiggle out of them was made - and every effort is being made to this very day to avoid the law. Oral arguments are duly recorded and filed with the written briefs. 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. As for the death penalty, its execution must be suspended in particular cases or in all cases for awhile, pending a review of its legality or the legality of the legal path leading to the death chamber.



Our law is the 'living' law of the 'Pharisees', who believe 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 do not believe in salvation, not even in an after life, but rather believe 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; yes, we do have our Sadducean torah, but the lawyers are standing by with the Pharisaic torah, and they may go so far as to claim their interpretation of the written law or their principles contradicting the statutes are superior. Given the political power of the Pharisees, the Sadducees recognize the living law, but they do not consider it as binding, hence the controversy continues ad infinitum.



Of course the foremost legal fulcrum for the United States is its Constitution. The writing itself is superfluous because it is based on sound principles which every free person should commit to heart. Still, we might like to have a copy in our pocket in case our memory fails us; after all, few people 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. Now when we read the Constitution and examine the opinions of the highest judicial authorities, we discover that our founding patriarchs 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.  



Human contradictions are nothing new. Theoretically, thesis and antithesis roll life forward, hopefully guided by the wishful thinking of creationists and evolutionists. We might make the ride easier by filling in and smoothing over the most obvious pot holes along the highway of our underlying crisis; I mean the 'hypocrisy' or hypo-crisis, in its ancient Greek sense, between how we present ourselves as public actors and who we are offstage. No doubt ethical theater should ideally be employed to educate the public to better conduct; the discourse in the chambers behind the scenes might better be kept private lest obvious discrepancies between what is said and done confuse the audience. People might wonder why criminals are being executed on stage, yet are going free offstage, for example, or vice versa. That does not make sense; however, if need be, the rabbis can explain it, at least to each other. And some explanations must remain apocryphal or 'hidden' in the true sense of the word: they must never be written down.



For example, when Moses said, "Write this down," did he not limit the law to the Written Torah? Not according to some lawyers: when Moses said to write "this" law down, he did mean only "this", but he also meant to keep the rest of the law, the oral law, a secret among the priests, at least until such time as people are able to read it and ready to understand it; then it can be written down. Even so the law hidden behind the writing, the living law, has authority over the language petrified on the page. The story of Moses may be a pious myth; however, if he existed he was probably illiterate; or, if he was educated as a Egyptian, he would have been familiar with the language of the New Kingdom, not with the biblical language of the Hebrews. Then no doubt he needed a scribe to write down the Torah for literate priests to recite to the illiterate public. But the oral law did have and must always have precedence; after all, Moses was not a priest or a scribe, he was a prophet having direct access to the Almighty; his word was law, as is the word of other recognized prophets, as we know very well from the Bible.  



If this all seems confusing to the reader, it should confuse, for the subject is still a matter of controversy to this very day; if it were not, how would culture be progressively cultivated? At least we may take some comfort in knowing that the apparent contradiction between the static Jewish written law and the dynamic oral law, sometimes called 'the Two Torahs', has nearly been resolved by something a modern critic called 'casuistic stretching.' We have therein the organic, living integrity of our dynamic order. Nonetheless, at first glance, the conjunction seems oxymoronic and patently absurd, but upon reflection it can be viewed as ethical and effective, therefore let us continue with our progress to enlightenment.



'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.



The critic Kenneth Burke called the process "casuistic stretching." He defined it at length in his 'Dictionary of Pivotal Terms', a chapter of his ATTITUDES TOWARDS HISTORY - consider this brief excerpt:



"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 previous 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 no 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 might add in this interpretative vein that the Reformation, as far as the Church was concerned, was an atheistic movement: the protesters were really 'atheists.' Leftists went so far as to identify 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 fetich, and the demoralizing worship of money. It certainly takes an economic determinist to know one, does it not? Nonetheless, scientific materialism is a spiritual form, and, like Luther, we progress by aid of linguistic stretching, from doing our natural duty on the privy 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 our Existence & 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 refering 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. Mishah plus Gemara is 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 precede 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 should be read or that it should be read at all. Prayers are not mandated, nor is the marriage contract or the ritual reading of Esther, the Pentateuch and the Prophets. 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 his fascinating book, THE STORY OF SCRIPTURE, From Oral Tradition to the Written Word (New York: Basic Books, 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," writes Silver, "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 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 supports the rabbis who would argue for an older origin of the Mishnah. in his provocative book, A HIDDEN REVOLUTION, Rivkin proposes that the scribes during the Maccabean Revolt 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 Saduccean 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. Let us turn to THE JEWS, Their History, Culture, and Religion, edited by Louis Finkelstein, (Philadelphia, The Jewish Publication Society, 1949 Vol. I, pp. 148-149) for an explanation of this process. 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 saith 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 Mishna. 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 (New York: NYU) states: "The impracticality of the 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 obscelescence 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 Tannain (Teachers of the Mishnah), 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, Avika 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 Avika 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 proferred 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, 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 irresponsiblity 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. Let us return to the jurisprudence of the question, picking up Rabbi Benjamin Blech's fine book, UNDERSTANDING JUDAISM, The Basics of Deed and Creed (London: Aronson, 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?" asks Rabbi Blech. "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'? How could they criticize Sages who ensure thwart the will of God is implemented. If the Toral 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."



Let us bring our brief tour of the mysteries of the law to a conclusion with a question and and answer. What is the moral of our controversial story? The moral is that a moral education will result in a moral society. Of course 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 will 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.