In general, we do not find in the early rabbinic commentaries a tremendous stress on textual details in their explanations of the Prophets and the Writings (Na”ch). There is a striking difference in the way they approach the Pentateuch (Torah) and the rest of the Bible (Tanach). The logic behind this is simple, the Torah is the direct “Word of God from the mouth of Moses”, so, of course, every single word, an extra expression, a reversed expression, a word that comes before another, obviously, must have a meaning.

However, when commenting on the Na”ch, the early commentaries do not stress this approach. They do not worry about the fact that ideas in Psalms are repeated often. That is the literary style.  As long as the community believes that prophecy is from Heaven, then it is safe to believe that besides the Tanach’s being a prophecy, it also happens to be a literary work. However, the time came when among the Enlightened Jews the ideology developed that all that the Tanach really is, is a  literary work. Then the traditional rabbis felt a need to turn the Tanach itself into something very similar to the Torah. In other words, they no longer accepted this theory that we can explain textual difficulties in the Na”ch just by saying there is such a thing as the style of the prophet. If in Megillat Esther, sometimes the king is called Ahasuerus and other times he is called King Ahasuerus, we can no longer ignore this.

The master of this new style of interpretation is Rabbi Meir Leibush Wisser (1809 – 1879) commonly referred to as the Malbim. The Malbim actually did an incredible job in finding treasures hidden in those small, subtle differences and changes in style and changes in words and changes in order in the Tanach itself. And the Malbim on Esther is really a classic because there are many things that once you don’t accept that it is merely a story, make you recognize that there must be a story behind the story.

For instance, the Book of Esther begins,

“In the days of Ahasuerus, he is Ahasuerus who rules from India until Kush 127 countries. In those days, when the King Ahasuerus was sitting on his throne in Shushan the capital.” (1:1-2 )  

The first time Ahasuerus is mentioned he is not called king. The second time he is “ruling” and only in the third instance is he called king. The Malbim, just based on these subtle differences, builds a whole case, a story behind the story, that Ahasuerus was a usurper to the throne. First he was just a general, then, by marrying Vashti, the king’s daughter, he began “ruling” large areas and finally, he was able to sit with tranquility on his throne. But Ahasuerus was obsessed with the idea that people should not say that he became king just because he married the right woman. It bothered him so much that he had to show that he was starting a new dynasty. To show this he changed to capital to Shushan, as the verse emphasizes. This is why “Shushan the capital” is only mentioned after Ahasuerus is called king.

The Malbim also pays special attention to when Vashti is called Queen Vashti and when she is called Vashti, the Queen.  When she makes a party she is called Vashti, the queen. Ahasuerus has an inferiority complex built up around his gaining the throne illegitimately.  Vashti is therefore a constant reminder to him that he gained the throne by marriage. So he needs to show the world that she is subservient to him. By calling her Vashti, Ahasuerus is saying she is primarily just Vashti, and only through me is she a queen. I am the carrier of the monarchy, not she.  Also by stating she “also made a party” there is a hint that her party is just an “also” party, an inferior party..

The king then requests his eunuchs to invite Vashti the Queen to join him in his party. When Vashti refuses to join him the text tells us that “the Queen Vashti refuses the request that came by the hand of the eunuchs.” (verse 12). But we already know from previous verses that eunuchs delivered the message.  Why, asks the Malbim, does this need to be reiterated? The Malbim sees in this repetition the true reason for Vashti’s refusal; the message was delivered by eunuchs which is an insulting way to do it. Why didn’t the king send more noble messengers or even come in person? Vashti understood correctly, that Ahasuerus was trying to show that her position was inferior to his own. She refused to come because the way she was invited was insulting. Also, the Malbim points out that when she refuses she is called “the Queen Vashti”. By putting her title first she is asserting her regality.

So all of a sudden through these subtle differences, we have a whole story behind the scenes, that this is a struggle for prestige. Who is the most prestigious and authentic symbol of the monarchy? Is it Vashti or is it Ahasuerus?  And this will give us an insight into what goes on in the next portion, the Trial of Vashti.

“Then the king said to the wise men those aware of the times … the ones close to him  Carshena, Shethar, Admatha, Tarshish, Meres, Marsena, and Memuchan … what to do with the Queen, Vashti for not fulfilling the word of the king Ahasuerus by the hand of the eunuchs?”  (1:13-15)

Let’s focus on four problems. Presumably this is a clear cut case of rebellion. The Queen should be executed.  1. Why then does Ahasaurus need “those aware of the times”? Ordinary judges should be sufficient. 2 Why are they called “close to him”? 3. Why is she called the Queen Vashti, according to the Malbim’s own rules we should emphasize her low stature here if we want to execute her.  4. Why reiterate that the message was sent by eunuchs? That would seem to mitigate her crime.

To answer all these question the Malbim says that the king was of two minds, he loved his wife, but letting her get away with her refusal would make him seem weak.  Therefore, he wanted to hint to those closest to him that he really wanted her to be found innocent. Telling anyone else would publicise his true feelings and risk weakening his image. Calling her the Queen and mentioning that the message was sent by eunuchs is intended to show his closest advisers that he wants her to be found innocent.  And this is why he chose to use judges who took into consideration the needs of the times. Only they can make exceptions to the normal required punishment. Memuchan understood all this but explained that nevertheless Vashti needs to be executed.

What was the argument that Memuchan used to convince the King? The King’s position of power was weak and he was looking for a way to gain greater popular support.  Memuchan suggests using men’s rights as the way to get this support. Memuchan said, if women are going to get this kind of a backing, if Vashti is left unpunished, then all the males in the kingdom, will come out against you. But, if you kill Vashti, and when you give the reason you don’t stress that she didn’t listen to the King, you stress the fact that you are doing it as a husband, as an example to others about men’s rights, that a man is the boss in his house, you are going to get millions of people screaming out, “More power to Ahasuerus! Yes, we want to give you all the power!!!”  So in spite of the fact that he loves Vashti, that he is ready to do everything in the world so that Vashti should not be killed, but this is too much of an argument. Ahasuerus can now become the absolute monarch in all the 127 countries, something that did not exist before. If the price is the death of Vashti, so be it. This is a small price to pay for such a power.

Now if we take a look at the rise of Queen Esther we see an incredible retribution. Ahasuerus wanted his new queen to be of no threat to his prestige. He chose her solely based on her outward appearance. He did not investigate her pedigree and in fact preferred she had none. He wanted the opposite of Vashti. He wanted someone who would not threaten his self esteem. But in the end she rises to be the actual ruler of the empire.  This is the Divine hand exacting a measure for measure retribution.

So, by paying attention to apparently insignificant details, the Malbim is able to create a completely new behind the scenes story.  It teaches how a despot rose to power and how the Divine plan eventually thwarted him. The new depth that the Malbim is able to uncover in the Na”ch reconfirms its holy character.

TB Sanhedrin 5a brings that one expert can be a judge in monetary cases and that he is equivalent to a normal court of 3.  The Talmud then questions whether the expert also needs to be authorized by the rabbinical establishment for his decisions to be considered final. (The gemara assumes that de facto anyone can deliver a judgement, but if he was not allowed to, de jure, then if he errs, the decision can be cancelled.)  It is proven that his decisions are final even where he has not be granted authority, assuming he is an expert, from the case where a expert who erred was told to personally pay the defendant back his money.  Since the decision was not simply cancelled and the plaintiff not made to return the money, we learn that an expert’s decisions are in fact final, even where he has no official authority.  Were he to have authority, he would also not be required to personally pay the defendant.

Tosfot  (ד”ה מומחה) compare our sugia to a passage on page 23a which starts off by rebuffing Rabbi Meir, and telling him that a litigant cannot reject a judge that is an expert, implying that Rabbi Meir believes you can reject such an expert judge. The Gemara then corrects the statement to be merely telling Rabbi Meir that you cannot reject a judge who was given the status of expert without being an expert.  Rabbi Meir then only differs in holding that such a non-expert expert can be rejected, but all agree that a true expert cannot be rejected.   Tosfot point out that the sugia there (23a) does not mean to imply you must have experts on every court.  This seems obvious to me.  Then Tosfot say that in fact, even average people, once they are composing a court of 3, will, for the purposes of that court, be considered experts, even without being extremely learned. We might object to Tosfot, if every court is considered to be composed of experts, as Tosfot say, then how can the gemara on 23a state that expert judges cannot be rejected? They are all always experts!  Rather, when they are still being appointed to the court, they are not yet experts and so can be rejected, but not after they are sitting. Tosfot are bolstering the court and denying the possibility of invalidating judges once they have been composed into a sitting court, Aside from reconciling the sugia on 23a, we can say that tosfot have broaden the definition of expert so that all courts will have the same validity and cannot be invalidated after the fact.

Tosfot (ד”ה דן אפילו יחידי) demonstrate that the discussion of what or who makes a court is really a question of making a court that can force people to appear before it (and presumably, force them to comply with its decisions). For if the litigants all consent to be judged by a man, even an average man, then his decision is binding on them (assuming the judge pronounces a correct judgement). Tosfot therefore conclude that a single expert or a court of 3 average people can force litigants to court. Interestingly, the court of 3 average people is compare to a single expert, not the reverse, thereby implying that a single expert as judge is the primary law (an interesting inversion). Shmuel’s case of a court of 2 (non experts) that are called “presumptuous” can likewise force litigants.  And the case of זבל”א on 23a is where 2 judges exist and the third one is voluntarily chosen by (in one opinion) the litigants. If the litigant can choose judges, doesn’t that mean the litigant must be there voluntarily? Couldn’t he choose not to be there just the same? To this Tosfot answer that he can choose only who will judge him, but he cannot choose to no come to any court.

Pirke Avot advises not to judge alone because you might err.  So how could Rav Nachman and Rav Hiya say they judge alone?  Tosfot (כגון אנא) answer, they are only saying they are capable of judging, but don’t actually judge alone.  Alternatively, they do judge alone, but because they are constantly involved in judgments, they won’t err.  This gives us a new category, a well practiced expert.

Rashi holds that an expert דלא נקיט רשותא who errs must pay if the litigants asked him to judge them “according to the Torah law” if they didn’t accept upon themselves possible errors in judgment. Tosfot (ואי לא) argue from the gemara דן את הדין on 6a that this law would apply even to one who is not an expert (even according to rashi there). Tosfot say that the teaching here is that since this is a case of an expert judge, even where the litigants did not agree to the judge at all, if he errs, the judge must pay the defendant and his judgement cannot be reversed.  Were the judge also to have נקיט רשותא it would have saved him from having to pay. Rashi was only able to explain the necessity for the judge to repay by the litigants’ request for the judge to apply correct Torah law which the judge failed to do. If they had not accepted the judge at all, where an error has occurred, the judgment would be nullified. Tosfot instead have granted even a non-authorized expert the ability to force the litigants to court and therefore they do not need this to be a case of acceptance (based on Tosfot ד”ה דן אפילו יחידי ). What prevents Rashi from accepting tosfot’s explanation? Does Rashi hold that an expert can force, but only if he produces the correct judgment?  Otherwise an expert’s forcing does not count? It is a strange mix for rashi to agree to the forcing (assuming he does) yet invalidate the din when the judge erred. But we find a precedent for this kind of rule in the law that a man can execute his own judgment if he knows he is right (עביד איניש דינא לנפשיה) BT BK 27b

יש לאדם לעשות דין לעצמו אם יש בידו כח, הואיל וכדת וכהלכה הוא עושה – אינו חייב לטרוח ולבוא לבית דין, אף על פי שלא היה שם הפסד בנכסיו אילו נתאחר ובא לבית דין, לפיכך אם קבל עליו בעל דינו והביאו לבית דין ודרשו ומצאו שעשה כהלכה ודין אמת דן לעצמו – אין סותרין את דינו

(משנה תורה, הלכות סנהדרין, פרק ב’, י”ב)

Tosfot ask if Bavel rabbinic authorization is valid in Israel, but not the reverse, implying Bavel is more authoritative, doesn’t that contradict Pesachim 51a that Bavel is said to be subsidiary to Israel regarding customs?  See also 24a here. Tosfot answer that although the Rabbis of Israel are more learned and they are to be followed in some matters, regarding money matters, Bavel has more authority, because Bavel’s authority derives from the sons of David, not the daughters.  Other Rishonim say the authority is from the the secular powers that grant more power in Bavel.  The gemara in Pesachim is convoluted, for it allows Bavel to have a different custom from Israel because Bavel is subsidiary to Israel.  But if that is the case, then Bavel should change to be in accord with Israel.  Why doesn’t it. Apparently they are independent of each other.

Tosfot (נקיטנא) explain that there are two systems of authority: regular authorization from the leaders of Bavel or E. Israel and personal smicha from a rabbi who himself has received smicha. Tosfot then propose that possibly where there is a chief rabbi of a city, only he is allowed to give smicha.