The Gemara on this Amud discusses the proper way to adjudicate a dispute where two parties claim ownership over an object. Sometimes the remedy is to mandate that it be divided. However, that is only when there are grounds to consider each claim as equally valid, and possibly that both are equal legitimate owners.  But if one party had full possession of the object, and the other had no proof other than his claim, we would not divide the object. We will give priority to the one who has physical custody of the object.

Based on this, Akeidas Yitschok (36:1) raises a question regarding Solomon’s famous ruling to cut the baby in half, as described in Melachim (I:3:16-28). An infant died in the night, and two women of ill-repute were quarreling about whose baby died. One woman claimed her baby was the living one, and the other woman upon seeing her dead child, switched them while she was asleep. Yet, the other woman claimed that the living baby was hers all along. From the end of the story, we see that Solomon planned it as a subterfuge to flush out the fraudulent mother. Indeed the true mother, out of love for her child, begged that she be allowed to release her claim, and the other woman would keep the child, so at least he could live.  Solomon then knew that this woman was the true mother, as she was ready to make the ultimate sacrifice of losing custody of her child, and undergo being humiliated by her loss in the court case in order to save his life.

Even though this was just a ruse, how could Solomon allow himself to appear so foolish as to suggest cutting the baby in half? It is elementary to any sense of justice that the person who has physical custody of the object should not have to relinquish it based on an unsupported claim.  There had to be some rationale! Akeidas Yitschok responds with a lengthy discussion about the imperfections of law, and that a great judge must also use some degree of intuition when something smells fishy.  Law is broad and general, therefore it will be imperfect at times, because no amount of legislation is enough to cover every contingency. It is the role of the Sanhedrin to occasionally abrogate the law, when there seems to be a need to preserve a higher goal or safety for society (see Bava Metzia 39b, Yevamos 90b, and further in Aekidas Yitschok 43.)

Thus Solomon sensed that the woman who claimed her baby was stolen had basis for her claim. After all, why would a woman randomly claim a baby of another woman and wish to go through all the trouble of raising a child that is not even hers?  On the other hand, it is imaginable that a woman who was aware that her child died, in the throes of anguish and jealousy, might steal her housemate's child and claim it as her own.  But then she would follow the MO of claiming the child to be hers, and not that it was stolen.  Thus, the claim by the other mother had a believable feel, as it was the less convenient or credible claim to make, and so perhaps she was telling the truth, even though she did not have physical custody.

This was Solomon’s tacit argument to split the baby in half, as he could show credence to both claims, and of course still be strategy of his ruse to flush out the liar.  

In life, sometimes we might have to resort to trickery in order to pursue ultimate justice. Yet other times, we must be willing to sacrifice our rights, and even the relationship itself, in order to spare a loved one. A modern example of Solomon’s dilemma is when a divorced parent feels he or she is being deliberately libeled as part of a campaign to alienate the child. When do you fight, even though the emotional and financial hardship to the child is great, and when do you concede?

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

Do you like what you see? Please subscribe and also forward any articles you enjoy to your friends, (enemies too, why not?)