“I didn’t know it was illegal.”
“Then why take the money in a brown paper bag in a dark back alley?”
“I had a hunch.”
One of the reasons given for Nadav and Avihu’s death is that they performed their service while intoxicated.
The question was raised at a morning minyan in my neighborhood this week: did G-d as it were execute Nadav and Aviv for an ex post facto violation? Wasn’t the command to not drink on the job given to Aharon after his sons’ deaths? And furthermore—wouldn’t the punishment of the Dor Hamabul also qualify as ex post facto, if the seven mitzvos were given to Noach after the flood?
There are two possible approaches in both cases: one, parrying the notion that the violations were ex post facto; the other, that what led to the imposition of capital punishment was ostensibly extra-judicial, but justified on different grounds.
With regard to the Dor Hamabul: TB Sanhedrin details how the Seven universal (Noahide) Mitzvos were actually encoded into the text of Parshas Bereishis in certain directives given to Adam, indicating that there was some knowledge of those mitzvos in some form even if less formally codified than, say, the sin of the Etz Hada’as. So in that scenario, ex post facto is less salient: the laws did already exist.
However, even if one grants for argument’s sake that the Seven Mitzvos were technically and chronologically Noahide, one can—as it were--“justify” the Heavenly punishment on the following grounds: the conduct of the Dor Hamabul had risen to the level of perpetual egregious criminality in areas that render one a rodef, as detailed in Bereishis 6:1-8 at the end of the parsha; Rashi’s explanation in 6:13 that “their fate was sealed only on account of their sin of robbery” hints that there was no longer an either de jure or de facto attempt to maintain social order; G-d then read his version of a “Riot Act” with a 120-year warning, with no discernible change in behavior. (You can’t really give hasra’ah for an ex post facto, but we’ll leave that for now.) The entire society was, as it were, terrorist.
With regard to Nadav and Avihu, a technical argument could possibly be made that the intoxication law was given at Sinai, and based upon how the laws were transmitted as per Rashi on Shemos 34:32, it would be more likely than not that even if Bnei Israel didn’t learn the law, the B’nei Aharon did, as they received the lessons first.
Even if, however, somehow that message was not yet transmitted or received, one might venture that the technical infraction which warranted the punishment wasn’t the intoxication, it was the resulting unauthorized innovation in the service, as per the text in this week’s parsha (10:2) and later on in Acharei Mos (16:1). The intoxication might have been one of the factors leading to them making the decision to innovate; the (re?) commandment of the mitzvah to Aharon as the ostensible reward for his demimah might have also served as a wakeup call of sorts to the rest of the Kehuna (“NOW do you get it?!?”).
It might also be possible—and this might serve as a connection, however tenuous, between the theoretical ex post facto infraction of the Dor Hamabul and the B’nei Aharon—as much as the mitzvah being given to Aharon was a reward for his demimah, it also might have been a painful reminder of the result of failures in education and transmission.
Aside from both the possibility that there was a command to remain sober that was ignored, and that an uncommanded initiative was certainly performed, the midrashim detail that Nadav and Avihu harbored some inappropriate motivations in terms of their privileged status as Kohanim which had led them to reach certain unfortunate conclusions about themselves (no one was suitable enough for them to marry) and even their mentors (they wondered when Moshe and Aharon would die so they could take over). Something was getting lost in the transmission even beyond staying sober in the “workplace”.
Similarly, all sorts of transmissions were clearly lost on the Dor Hamabul; whatever relationship Adam had with G-d, and whatever was transmitted, had been lost since Dor Enosh when pace Rambam the first moves toward idolatry were made, until the point where there was no longer a society worth preserving.
Going back to the original question, the speaker wondered what the message could be if one grants that ex post facto punishments were legitimiate in these cases. He opined that on occasion one has to intuit what might be right or wrong beyond having to have someone—even G-d—tell you so.
In theory, this could be dangerous on several levels, even going back to these narratives: Nadav and Avihu’s ultimate infraction was that they did intuit an uncommanded action, even though their on-the-spot motivation gets a kaf zechus treatment in some quarters/sources; the “final straw” of the Dor Hamabul was that all of them thought they had figured out a way around being held accountable for theft. One should remember that “your conscience” is still “your conscience”: the ego/id will often too easily hijack or co-opt one’s superego.
Yet one can refine his point: if one begins to intuit a dilemma, more often than not one will—or should—be able to pinpoint what is the impetus for the dilemma; more simply and crudely put, “What might I be doing wrong here?” usually should suffice, the fact that it more often than not does not notwithstanding. What might have happened instead is that prior knowledge of details of what was appropriate and not had been lost due to a combination of X factors that led to that knowledge being lost; one had either become intoxicated, whether chemically or spiritually or attitudinally, like Nadav and Avihu; or the transmission of important precepts can get lost or distorted, as the Dor Enosh’s misconceptions led to the Dor Hamabul’s thorough social corruption.
In any case, certainly nowadays, there is little no recourse to an ex post facto defense for transgression. Even in situations where there ostensibly seemed to be—like these two examples—one can almost always find the proximate infraction that elicits the punishment, even capital, often without too much research.
But maybe Bruce Springsteen presents the simplest formula:
“There's always somebody tempting somebody into doing something they know is wrong.”