Thursday, 14 October 2010

A Donkey Carrying Books


Recently a friend asked me for some advice. Having read a few books on Kabbalah and mysticism and thinking that I have enough knowledge of spiritual matters to posit an opinion I shared my thoughts on which way to decide. However, in retrospect I realise that having knowledge and thinking one can make rulings in spiritual matters - is what the Rabbis describe as “a donkey carrying books”.

Here is an extract from a book that highlights this idea beautifully. Showing the abyss between theoretical knowledge and having a grasp of the concepts enough to come to a conclusion based on analysis that is both scientific and artistic. This is illustrated both in Jewish law and United States law.

“Lomdut: The Conceptual Approach to Jewish Learning”
edited by Yosef Blau, Robert S. Hirt Series Editor
Chapter 4
“Lomdut and Pesak: Theoretical Analysis and Halakhic Decision-Making”
J. David Bleich

This chapter deals with the issue that it is not enough to simply know the law as spelled out in relatively recent works in Jewish history – such as the Shulchan Aruch (http://en.wikipedia.org/wiki/Shulchan_Aruch) in the 16th century. But rather that judgement calls for evaluating citations, precedents, arguments, etc. As the chapter states near the start:

“...But halakhic (Jewish law) decision-making is indeed an art as well as a science. The kunst lies in the ability to make judgement calls in evaluating citations, precedents, arguments, etc. It is not sufficient for a halakhic decisor to have a full command of relevant sources. If so, in theory at least, the decisor par excellence would be a computer rather than a person. The decisor must have a keen understanding of the underlying principles and postulates of Halakhah as well as their applicable ramifications and must be capable of applying them with fidelity to matters placed before him. No amount of book learning can compensate for inadequacy in what may be termed the “artistic” component. The epithet “a donkey carrying books” is the derisive reference employed in rabbinic literature to describe such a person...”

The example given relating to Jewish law is about an argument between Rabbi Hayyim of Brisk (who advocate this way of learning) with a non-Lithuanian Rabbi (who argued that just knowing the law was sufficient). Rabbi Hayyim challenges the other rabbi with a hypothetical example and is confident that the other rabbi will come to an incorrect ruling.

“...The hypothetical involved two women, one Jewish, the other a gentile, each cooking meat outdoors in separate pots over adjacent fires. The question: The gentile woman shakes her pot causing a piece of non-kosher meat of indeterminate size to fly through the air and land in the pot belonging to the Jewish woman. Is the food in the Jewish woman's pot permissible or is it impermissible because of the admixture of non-kosher meat? The rabbi responded observing that the answer hinges upon whether or not the quantity of kosher food is sixty times as great as the quantity of non-kosher food that fell in to the pot. When the non-kosher food is of a variety different from the kosher food, the requirement for a quantity of sixty times as great for nullification to be effective is biblical; if both foods are the same variety, biblical law regards the non-kosher food to be nullified even if the kosher food is only slightly greater in quantity. In order to prevent confusion, rabbinic law established a uniform principle for nullification and requires that the quantity of kosher food always be at least sixty time as great as the quantity of non-kosher food. In the case under discussion , the kosher food was greater in quantity than the piece of non-kosher meat but is was doubtful whether or not the quantity of kosher food was sixty times as great as that of the non-kosher food. Accordingly the rabbi responded that since the kosher food and the non-kosher food were meat and have the same taste, the requirement of a quantity of kosher food sixty times the quantity of non-kosher food is rabbinic in nature. Hence, he concluded, the principle that matters of doubt with regard to rabbinic matters are adjudicated permissively applies.
To that R. Hayyim responded that the rabbi had forgotten to take in to account the fact that the gentile woman had no reason to soak and salt her meat and therefore the non-kosher food consisted not only of meat but of blood as well. Blood is distinct from meat and differs also in taste, The rabbi immediately reversed himself and conceded that since the doubt was with regard to nullification of a foodstuff in an entirely different type of food, the doubt is with regard to a matter of biblical law and must be adjudicated on the side of stringency.
R. Hayyim countered by informing the rabbi that he was again in error because he had overlooked the fact that the meat had already been cooked in the pot for some time and hence the blood within the meat had been cooked as well. Most early-day decisors rule that the blood that has been cooked is prohibited by virtue of rabbinic decree rather than biblical law. Hence, the matter still involved only a possible rabbinic violation. The rabbi was forced to concede error for the second time.
Thereupon, R. Hayyim told him that he was in error yet again. Blood of a properly slaughtered animal is prohibited as blood and is biblically prohibited only in an uncooked state; blood of carrion, in addition to being prohibited as blood, is prohibited as carrion as well. However, the cooked and uncooked carrion are equally proscribed by biblical law. Therefore contented R. Hayyim, the matter involves a possible biblical violation of the prohibition against carrion. The rabbi confessed that the point had not occurred to him. R. Hayyim then countered once again by pointing to Tosafot, Pesachim 22a s.v. Ve-harei dam, that establishes that blood is not included in biblical usage of the term “animal” and hence is not equated with meat for the purposes of the prohibition against carrion...”

If you're reading this far, I'm impressed. Next is an example from the U.S. Supreme court that shows how difficult subtle proper legal rulings are to make.

“...an Independent Council was appointed to investigate whether crimes had been committed by members of the Executive Branch during the course of prior investigations in to the 1993 dismissal of employees of the White House Travel Office. During the course of the investigations, Deputy White House Counsel Vincent Foster Jr. met with an attorney for the purpose of obtaining legal representation. The attorney took notes during the course of the meeting. Foster committed suicide some days later. Subsequently, a Federal Grand Jury, at the request of the Independent Council, issues subpoenas for those notes. The attorney sought to quash the subpoenas on the grounds that the notes are protected by attorney-client privilege.
The issue before the Supreme Court in Swindler & Berlin and James Hamilton v. United States was whether the attorney-client privilege survives the death of a client. Resolution of the question depends upon the nature of the attorney-client relationship: Is the privilege rooted in, and is an expression of, the right against self-incrimination? If so, it should not survive the death of the client since the deceased is now beyond the reach of the law. Or is the privilege designed to encourage full and frank communication between attorneys and their clients for much broader purposes that do not necessarily involve criminal liability, e.g. personal and family matters and problems arising in the course of operating a business? Knowledge that such communications might be revealed after the client's death would have a chilling effect upon a person desirous of such advice.
The Court of Appeals rules that posthumous revelation may be compelled in situations in which the relative importance of the communication to a particular criminal litigation is substantial. The Supreme Court found such a holding to be consistent with the notion that the attorney-client privilege is but another aspect of the privilege against self-incrimination but, upon determining that the attorney-client privilege is designed to promote an entirely different goal, reversed the Court of Appeals...”

So the next time that someone asks me for advice I shall kindly decline. This also reinforced to me how much knowledge a person needs in Halakhah in order to properly appreciate and understand Kabbalah.