Shemini—Ex Post Facto?

“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.

How?

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.”

They know.

Purim, Progsplained (cross-post from Times Of Israel)

[After posting this on TOI, it occurred to me that I was giving too much credit to the "P'shat wins" camp.  In truth, "p'shat" in the text of Megillas Esther gives very little indication that Vashti was harassed, beyond a refusal to obey a royal request/command; without medrash, there's no hint of a #metoo scenario at all.]

One of the central precepts of Purim is to render oneself so intoxicated “until one can no longer distinguish between ‘cursed be Haman’ and “blessed be Mordechai’.”

More recently this intoxication seems to start a bit before the holiday: there seems to be a tendency to whitewash certain femalefactors past—Vashti; and present—AOC.

One must ask: whence the urge to rehabilitate?  Why does Vashti especially conjure up the impetus to be dan lekaf zechus (judge favorably?)

Queen Vashti’s status as an ostensible feminist icon goes back to the First Wave of Feminism in the 19th century, attributable to Elizabeth Cady Stanton.  More recently she has been elevated to honorary #metoo martyr owing to her having stood up to unwanted male attention.

The narrative in TB Megillah surrounding the #metoo incident: Achasverosh makes some clearly offensive remarks about his Queen that would qualify as harassment at the very least in any setting; Vashti certainly has the right to say no, and her retort about the King’s inability to hold his liquor as compared to her royal forebears’ stable boy (and the implied subtext that she was likely mocking his ability to perform in the royal bedchamber, especially when in his cups) certainly qualifies as a worthy riposte.

So—taken in isolation, which is how the incident is presented in the text—the #metoo-ers might have a point.  (Or, as a Facebook sparring counterpart claimed, “P’shat wins”.)

Except that: Bibliteralism is never a Jewish value.

The Purim story categorically has to occur before the Megillah was written, ergo the text has to be subservient to the oral tradition.  To chain oneself to a closed basic reading of the text without the tradition does a tremendous disservice to the actual “P’shat”, both of the text itself and the actual narrative.  Ergo, the Talmudic and midrashic narratives are the ones that actually “win” over the text.

That tradition overwhelmingly presents Vashti as a scoundrel and enemy of women who didn’t have royal pedigree (here was another area where she was ahead of the curve: slut-shaming those below her “class”.)  Which might explain why there’s an element of Divine poetic justice in her ultimate comeuppance as a result of her suddenly diminished beauty, as payback for her maltreatment of her female charges.  Not to excuse Achashverosh for his overall maleficence (pun intended), but no one is trying to make an icon out of him.

Ultimately, Vashti is hardly a role model for either gender; her apparently justified impudence owes as much to political power dynamics as it does to ancient Levantine male privilege.  Her entire relationship with her husband is bidirectionally parasitic: Vashti is trying to recover the royal status lost when Balshazar was overthrown; Achasverosh is trying to accord himself legitimacy in order to compensate for being a usurper.

In one debate last year, Vashti was compared to a female Harvey Weinstein.  More appropriate might be a cross between Serena Joy as “feminist” and Roy Cohn as “victim”.

Additionally, not only does an ostensibly restrictive “p’shat” reading of the Megillah that holds up Vashti as a “feminist” violate the narrative, it also egregiously shortchanges the true heroine and namesake of the story: Esther.  While she may not check all the progressive and #metoo boxes in her response to being forced into the King’s harem and sexual service, her prudence and guile actually underscores her actual character and how proactive she really was.

While she has to be prodded into taking initiative, when she does she all but issues a p’sak (the 3-day fast), and she even wants to go far as calling out the King (“ish tzar ve’oyev”), but is apparently redirected by an angel–she never forgets who the real enemy is, even the one she has to sleep with.  She’s not exactly a “b’nos Tzelaphchad” feminist either, working within the system: she is pulls all this off while in a very public extramarital liaison (a forced one, to be sure) with a non-Jewish king–which, according to the Talmud, she uses to scare the Jews into doing morefervent teshuvah.  Talk about “outside the box”: if Vashti was “revolutionary”, Esther was smart.

Finally, as the Megillah was written by Mordechai AND Esther (need we mention it having been named for her?), any notions of “mansplaining” are more than canceled out both by that fact and by the nearly two-century old impulse to progsplain the Purim narrative.

Which is why Rabbi Avi Shafran’s recent insistence on taking AOC’s tweets as “p’shat”—especially since he clearly has no truck with progressivism—is so surprising.  Ad d’lo yada AND venahafoch hu?  It didn’t look like Purim Torah. 

Again, one must ask: whence the urge to rehabilitate?  Why does AOC especially conjure up the impetus to be dan lekaf zechus?  One doesn’t even need to use Jewish issues to paint AOC as a villain: there are tons of other reasons.

Rabbi Shafran links to a HaModia piece in order to criticize it for lumping AOC in with the Omar-Tlaib axis of evil, but he fails to address the key charges that are clearly laid out:

“A week ago, after speaking with noted anti-Semite British Labor leader Jeremy Corbyn, Ocasio-Cortez gushed, “It was an honor to share such a lovely and wide-reaching conversation with you.”…Throw the Women’s March into the mix and you have a veritable smorgasbord of progressive female representation of anti-Semitism.” 

Oy lerasha, oy lishcheno (woe to the evildoer, woe to the neighbor); maasim mevarerim zu es zu (actions prove one another): each principle by itself should override any notion of being dan AOC lekaf zchus.  Kal vachomer when both against one.

And, for the sake of bipartisanship enough, here’s a progressive who recognized the real import of of AOC’s tweet, who recognized what Rabbi Shafran refuses to:

“Liberal Jews aren’t concerned about criticism of Israel. We do a lot of that ourselves. We’re terrified of members of Congress using anti-Semitic tropes that have gotten our people murdered when they criticize the Jewish state.” 

Contra Rabbi Shafran’s insistence that “It would be a regrettable irony if some of us who care deeply about Israel, in fits of zeal, carelessly pushed her in that dark direction”, some very far to his left recognize that she is already there.  The open alliance with evil is obvious.

Also contra Rabbi Shafran, p’shat of the AOC tweets aren’t just what’s on the surface.  In addition to her overtures to Corbyn, and open alliance with Omar and Tlaib, her unequivocal support for the Gaza “demonstrators” at the border should be further proof of AOC’s Judeomisia.  Like AOC, Rep. Omar now has come out for the 2 state solution.  Was Omar lying then or is she lying now?  Why would AOC not be as prone to dissemble as Omar?  As no less a terrorist than Yasser Arafat said: “I would kill for my cause; you don’t think I would lie for it?”

Rabbi Shafran concludes thus: “every person – even a “progressive” – deserves to be judged impartially.”   The evidence impartially disproves his point.  Further: having just read Parshas Zachor, one can be reminded of two of the major mistakes that King Saul made in the war with Amalek, as delineated in the Haftara (I Samuel 13): being merachem al hach’zarim (merciful to the cruel) and al tihyeh tzadik harbeh (do not be righteous overmuch).  For those who are clearly our sworn enemies, being dan lekaf zechus is clearly “Jewishly wrong, not to mention counterproductive”, but also dangerous: “Rabbi Yoḥanan says: The excessive humility of Rabbi Zekharya ben Avkolas destroyed our Temple, burned our Sanctuary, and exiled us from our land.”