Unprecedented Precedent

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My family, and many others like it, returns to the same question around the Seder table each year: Why did God harden Pharaoh’s heart and cause such calamitous plagues in Egypt? Somehow, it seems easier to focus upon the suffering of others than the suffering of our own People – perhaps a sign of just how far we have come since we were enslaved in the Land of Egypt and a way to reaffirm our own sense of freedom.

This week’s Torah Portion, Parshat Bo, contains with it the story of the final plagues and punishments that God metes out. It also underscores Pharaoh’s vacillation between acceding to Moses’ demands and fighting against them.

For the first time in many years, there is a verse that stands out to me as a new clue, which may provide additional context by way of the severest of the plagues: the death of the firstborn. Exodus 11:6 is often translated as “There shall be a loud cry in all the land of Egypt, such as never has been before.”

Yet, as commentators Abraham Ibn Ezra and then Jacob ben Asher point out, the translation is more aptly that “there shall be a loud cry in all the land of Egypt, such as has never been or will ever be again.” (For fellow sefaria.org aficionados, the translation appears to already take those commentaries into account.)

While many of the events of the Exodus set a precedent within rabbinic literature and law, this harshest of penalties – collective in nature, unusually brutal, and injurious to an entire civilization – is not intended to be justification for future acts of revolution or retribution.

There are a number of potential implications. First, it could be that the oppression of the Israelites was uniquely horrible. Second, it could be that the Israelites were expected to grow in their ability to advocate for themselves – thereby obviating the need for God to intercede in this kind of way. Third, it could be that Israelite society needed to foreclose the possibility of collective punishment and that the tenth plague both liberated the Israelites and demonstrated why such forms of punishment are unacceptable.

There is a fourth option, which I find even more compelling. To me, it feels almost as though God so identifies with the Israelites that he seeks in one single action to lower the entire Egyptian population to the status of the enslaved. We see this in the language of the “loud cry” of the Egyptians, paralleling the one that reached God from the Israelites earlier on. God may be interceding on behalf of the Israelites from a place of emotion – fundamentally rooted in a desire to protect our people and yet undesirable as a norm for society.

In many ways, this form of precedent is unprecedented: for God to conduct a course of action that must not be repeated but which was somehow essential at the time. It creates a conundrum or ostensible contradiction that has few parallels in contemporary court systems.[i] But the enduring significance of the tenth plague and its precedent-setting unprecedented non-precedent should not be overlooked. For it could well give us insight into a beautifully complicated and challenging portrayal of God.

[i] The only parallel that comes to mind is that of the American Supreme Court case of Bush v. Gore suggested, in which the majority ruled that its own determination was “limited to the present circumstances.” Many an article indicates that, for worse or better, Bush v. Gore did set precedent – even if it suggests that future courts can violate the Political Question Doctrine, which otherwise leaves political decisions to the electorate. In effect, saying that a case is not intended to set precedent itself sets precedent.
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