Q&A: Lex Specialis
Lex Specialis
Question
Babylonian Talmud, Makkot 12a. If a father accidentally killed one of his sons, does his other son become the blood-avenger against him? The Talmud considered, in its initial assumption, that according to Rabbi Yosei the Galilean, who holds that blood-avenging is a commandment and not merely optional, the son does become his blood-avenger, and that this overrides the commandment of honoring one’s father. But in the conclusion, the commandment of honoring one’s father is not overridden by the commandment of blood-avenging, and the son does not become his blood-avenger (because there is a general derivation that a son does not become an agent to strike or curse his father, except in the case of an enticer, regarding whom it is written: “you shall not pity him, and you shall not cover for him”).
I thought to explain the initial assumption (that the commandment of blood-avenging overrides the commandment of honoring one’s father) and the conclusion (that the commandment of blood-avenging does not override the commandment of honoring one’s father) in a certain way, and with your permission I’d like to ask whether you could kindly tell me your opinion—since it seems to me that this bears on understanding the rule of lex specialis, which lies in your toolkit and is liable to be used at any moment, and on the question whether, when commandments between man and God and commandments between man and his fellow both stand before a person with equal weight, he must choose the interpersonal commandment, since elsewhere you inclined to say that he must choose the interpersonal one because it has two aspects; and also whether the rule that a father cannot command honoring of father against another commandment because “you are all obligated in My honor” applies only when he explicitly gives the command, or also when his honor simply happens, on its own, to conflict with another commandment—such that honoring one’s father never stands against any other commandment. A somewhat similar idea came up in that same discussion about commandments between man and God and commandments between man and his fellow.
The side that says the commandment of blood-avenging overrides the commandment of honoring one’s father—that is, either he is obligated to avenge or he has permission to choose which commandment to fulfill—could be explained on the basis of the aforementioned lex specialis: all blood-avengers are obligated in the honor of the father who killed accidentally, and therefore if the commandment of blood-avenging were pushed aside, then in this case it would be canceled *in principle* entirely (“in principle” meaning not that it is canceled because of some incidental event that happened to come before him, but that from start to finish the commandment upon him is not given over to fulfillment), whereas the commandment of honoring one’s father he could have fulfilled beforehand and during the rest of the time until the occasion arose where he would have to kill his father.
And according to the conclusion, that the commandment of blood-avenging does not override the commandment of honoring one’s father—that is, he is forbidden to avenge, and perhaps this is only because passive omission is preferable—it could be said that lex specialis deals only with cases where the entire commandment would, in principle, be canceled. For example, if they refrained from killing Sabbath desecrators in order not to violate “You shall not murder,” then the obligation to kill them would be entirely nullified, and therefore it is clear that the Holy One intended that Sabbath desecrators indeed be killed and that the prohibition of murder be set aside, for otherwise why write that they should be killed? But here the commandment of blood-avenging, in general, is still fulfilled in other accidental killings where the blood-avenger is not the son of the accidental killer, and so this lex specialis does not apply here.
[But if so, one must understand why the son is forbidden to avenge. Why don’t we say that he has two commandments before him and may do whichever he wants, or cast lots—just as if he has before him two lost objects, one belonging to Shimon and one belonging to Reuven, and can return only one, he returns whichever he wants (or casts lots). And it seems unreasonable to say that he is forbidden to kill his father merely because passive omission is preferable.
I thought perhaps that this is why the Talmud brings the rule that a son does not become an agent of the religious court to strike his father. At first glance this is puzzling: what does that have to do with this? A son does not become such an agent because the court can appoint another agent, so why should the son jump to the front to strike his father and violate honoring one’s father? Since both can be fulfilled—honoring one’s father and striking the father—there is no reason at all to violate honoring one’s father. But with blood-avenging it says that a son does not become the blood-avenger against his father—that is, under no circumstances does he become the avenger, and even if he is the only avenger, he is forbidden to kill his father. That would mean the commandment of blood-avenging is completely canceled, so what does this have to do with an agent of the religious court? Rather, according to what was said above, perhaps it can be explained somewhat as follows: the son has before him two equally weighted commandments, the commandment of blood-avenging and the commandment of honoring one’s father, and in such a case he would ordinarily choose whichever commandment he wants; but we learn from the court’s agent that one must refrain from violating the commandment of honoring one’s father, and therefore the son must specifically choose to fulfill honoring one’s father and not to fulfill blood-avenging. Still, this remains somewhat fuzzy, and the analogy is not really convincing.]
Answer
Your basic premise regarding lex specialis needs clarification. You assume there is a necessary hierarchy based on the scope of the commandment or prohibition. I’m not at all sure of that. After all, there is an interpretive rationale behind lex specialis, and simply speaking it applies only where the commandment would be entirely nullified. For example, if we do not kill Sabbath desecrators because of “You shall not murder,” then the commandment to kill Sabbath desecrators becomes superfluous in the Torah. So what is the meaning of the verse? Why was it written? But if it is nullified only for me, then there is no question why it was written. Therefore, in such a situation, I doubt whether the broader rule really does take precedence over the narrower one.
Beyond this discussion, from the plain sense of the sugya I don’t think the change between the initial assumption and the conclusion should be attributed to lex specialis. In the initial assumption they thought that if this is a commandment, then we would say regarding it, “you are all obligated in My honor”; but in the conclusion, even if it is a commandment, one is forbidden to become a blood-avenger, because this is not a matter of the father’s honor arising from his own command (as you wrote). This reasoning does not depend on lex specialis.
The comparison to an agent of the religious court says that my reasoning above is correct. That is, lex specialis has no significance if the nullification of the commandment is only with respect to a specific person. Therefore the fact that the court can appoint another agent makes no difference compared to the blood-avenger.
Discussion on Answer
With lex specialis regarding intuitions, the logic is very similar. Only where one of them would be canceled entirely is there room for this consideration. That is indeed the situation in the conflict between choice and causality. If we choose causality, free choice disappears entirely, but not vice versa.
What I wrote is that from the fact that the Talmud compares an agent of the religious court to a blood-avenger, it proves that lex specialis does not apply in either case. Even so, one could still challenge the comparison itself. I think the explanation is that the Talmud proves from there that even according to the one who says blood-avenging is optional, the son still does not become the blood-avenger. If it is optional, then there is no basis to distinguish between that and an agent of the religious court in terms of there being alternatives. Now in the case of blood-avenging too there is an alternative—not to avenge blood, since it is optional.
By the way, one could discuss whether this is speaking about intentional murder or accidental killing, since even in intentional murder the blood-avenger has a role. I remember a discussion in Kli Chemdah that deals with this at length when discussing the obligation of honoring one’s father when the father is wicked. If it is speaking about intentional murder, then the father murdered his son and is wicked, and nevertheless the son does not become the blood-avenger, which proves that there is an obligation of honor toward a wicked father during his lifetime. He distinguishes that from after his death.
Of course, from the laws of the court’s agent this is proven directly, since there it is clear that we are speaking of a wicked person who sinned intentionally.
Free choice disappears entirely, but the power of intuition in general does not disappear entirely. Is what corresponds to the commandment to kill Sabbath desecrators—which cannot be nullified—the specific intuition regarding choice, and therefore we apply lex specialis? Or is what corresponds to the commandment to kill Sabbath desecrators the power of intuition as a whole? It doesn’t seem self-evident to me to compare a specific intuition to a specific commandment rather than comparing intuition as a whole to a specific commandment. In any case, I’m not arguing the point.
Seemingly, even if we are speaking about intentional murder, one could still say the father repented, and then one would indeed be obligated in his honor.
But I have an intuition that there is free choice. Why cancel it if there’s no need to?! The principle is to give up as few intuitions as possible. You’d be right if there were a specific causal intuition about a person’s value-based decisions. Then it might indeed be balanced.
Just as in the conclusion we cancel the commandment of blood-avenging that is incumbent on me, even though we could avoid doing that—and the commandment of honoring one’s father would still be fulfilled the rest of the time—why cancel it if there’s no need to? Why isn’t the right principle that we give up as few commandments as possible, at least those incumbent on me? I agree that your approach is more plausible, but it seems to you completely self-evident, and that’s what I still haven’t understood.
I explained that the Talmud says this on the assumption that blood-avenging is not a commandment but optional. That is the very issue under discussion. On the side that it is a commandment, they really do say that it overrides, and that is because of a different reasoning: “you are all obligated in My honor”—unless one distinguishes between honor that results from the father’s expression of will and natural honor.
But I’m speaking according to the Talmud’s conclusion, that even if blood-avenging is a commandment it still does not override honoring one’s father, as is proven from the baraita that only in the case of an enticer may a son strike his father. Maybe “enticer” is a general derivation from the fact that it had to be stated there, teaching the opposite—that in *all* other cases, including blood-avenging, the son indeed must pity him. In any case, that’s not how I understood it. Regardless of how we explain the reasoning in the initial assumption and in the conclusion of the Talmud, the practical law is that blood-avenging, even according to the one who says it is a commandment, does not override honoring one’s father—that is, lex specialis doesn’t apply here. “Can you really think so? Whether according to the one who says it is a commandment or according to the one who says it is optional, is it permitted? But didn’t it say…”
I don’t understand the difficulty. The Talmud concludes that if it is a commandment, then obviously he does not become the blood-avenger, but now it comes to prove that even if it is optional the son still does not become the blood-avenger, and the proof is from an agent of the religious court, where aside from an enticer one does not become the court’s agent against his father. In other words, the Talmud compares an agent of the religious court in all matters except an enticer to the blood-avenger on the side that it is optional, and proves from there that one does not become the blood-avenger even if it is optional.
Why is an agent of the religious court similar to the optional case? Exactly because of your reasoning—that the court can choose another agent.
I don’t see where the Talmud says such a thing. The Talmud brings two baraitot, one saying he does become the blood-avenger and one saying he does not. It says: let us say that this one follows Rabbi Yosei the Galilean—blood-avenging is a commandment, and therefore even a son becomes the blood-avenger—and that one follows Rabbi Akiva—blood-avenging is optional, and therefore the son does not become one. Then it rejects that and says that even according to the one who says it is a commandment, a son does not become the blood-avenger (“Can you really think so? Whether according to the one who says it is a commandment or according to the one who says it is optional, is it permitted?”), and it explains that the baraita saying he does become the blood-avenger is speaking about a grandson, not a son. So practically, a son does not become the blood-avenger even according to the one who says it is a commandment—honoring one’s father, even when there is no instruction from the father, overrides the commandment of blood-avenging—and the Talmud compares this to not becoming an agent of the religious court, though perhaps that is a special derivation from the case of an enticer.
Sorry, I reversed the sides. The Talmud comes to prove that even according to the one who says it is a commandment, one is not permitted to be the blood-avenger, and proves this from an agent of the religious court. You ask that in the case of the court’s agent there is the option of choosing someone else, whereas with the blood-avenger the commandment rests on him.
Maybe the Talmud doesn’t see that as a distinction, since if it is a commandment then he could also be an agent of the religious court even if someone else could be chosen. At the end of the day he is performing a commandment, and even if it could be done by others, the commandment still overrides honoring one’s parents. In yeshiva-style language, this would be complete permission rather than mere override, though as is known I don’t distinguish between them.
By the way, from the conclusion, which distinguishes between his son and his son’s son, you can see there is another option: the grandson can be the blood-avenger. Or at least the case includes such a possibility, and therefore the comparison to an agent of the religious court is valid.
Could you sharpen for me again now why the commandment of blood-avenging in this specific person, out of all the people upon whom the commandment is defined, is not lex specialis so as to override honoring one’s father, and therefore does not override it? [Whereas the specific intuition that there is free choice, out of the whole set of intuitions we hold, is lex specialis relative to the intuition that everything is causal, and therefore does “override.”]
I explained: because no verse becomes superfluous even if we tell him not to avenge blood. Lex specialis applies only if the verse is left without content.
If I have an intuition that there is free choice and opposite it a general causal intuition—not a separate intuition about determinism—then it is better to leave both standing. If I had a specific intuition regarding causality in value judgments, I really am not sure I would say lex specialis.
But why do we believe intuition at all? It’s not that each intuition has independent force of its own, if I understand correctly, but that there are general arguments for the validity of intuition. So a specific intuition—free choice—out of the whole set of intuitions is seemingly similar to a specific imposition of the commandment on me out of the whole set of applications of the commandment. I’m only asking whether the claim—that with free choice there is lex specialis, whereas with the blood-avenger there isn’t—is simple and clear to you. If it is just a judgment call in this direction rather than that one, then fair enough, I accept what you say.
It seems very plausible to me.
I don’t think intuition is one single whole. There are no arguments in its favor, because every argument is built on it. It is a human faculty that produces many insights. Just as thinking is not one single whole—because if it were, you would have eliminated the whole doctrine of lex specialis.
Understood. Thanks.
I saw a nice formulation of something like the rule of “lex specialis” in a baraita in Babylonian Talmud, Sotah 14b: “Wherever you find two verses, one of which can be interpreted in a way that upholds itself and also upholds the words of the other, while the other can be interpreted in a way that upholds itself but cancels the words of the other, we set aside the one that upholds itself but cancels the other, and adopt the one that upholds itself and also upholds the other.”
There the issue is two parts within one verse that, in the plain sense, contradict each other. So one of them is interpreted somewhat more broadly in order to leave room for the other as well; for if you were to interpret that phrase narrowly, as you probably would have if not for the second phrase, then there would be no room for the second phrase.
The verse says: “And this is the law of the meal-offering: Aaron’s sons shall bring it near before the Lord, to the front of the altar.” “Before the Lord” is interpreted to mean that the meal-offering is brought on the west side of the altar; “to the front of the altar” is interpreted to mean on the south side of the altar. One tanna compromises and rules that it is brought to the southwest corner of the altar. But Rabbi Elazar in the baraita does not say that. Rather, he first rejects the possibility of choosing arbitrarily between two good options—Rashi explains: let him bring it to either one, whichever he wants, either to the west or to the south—and says that he should bring it on the south, and this still counts as “before the Lord” because the priest stands opposite the Sanctuary; whereas bringing it on the west certainly would not count as “to the front of the altar.” [You can see there are three different interpretive methods here, and they deserve investigation, as does their relation to other cases where two verses contradict one another.]
Thank you very much. Since your limitation of lex specialis to cases where it prevents a sweeping nullification of the rule is also the conclusion according to the explanation I suggested, it seems the point is agreed upon. [This got me thinking about your use of lex specialis regarding causality and free choice—that the realm of causality should be narrowed in favor of the intuition that there is choice. In other words, I wondered whether the specific commandment there is the power of intuition as a whole, or the specific intuition. And from there my thoughts jumped, as they tend to do. But I still need to organize my thinking on the matter, so I didn’t present it. Suddenly it seems to me that this too is a kind of “cold” discussion, without emotional dimensions, etc.]
I didn’t quite understand whether and how you explained the Talmud’s proof from an agent of the religious court, if we assume reasonably that one can always appoint one of the judges as an alternative agent, whereas by contrast there isn’t always another blood-avenger available who will pursue and catch him. Could you go over that again?