Our Gemara on Amud Beis discusses certain legal situations where both claimants have an equally valid argument, and one has no default assumption of ownership over the other:

There was an incident where two people dispute the ownership of property. This one says: It belonged to my ancestors and I inherited it from them, and that one says: It belonged to my ancestors and I inherited it from them. There was neither evidence nor presumptive ownership for either litigant. Rav Naḥman said: Whoever is stronger prevails. Kol De’alim Gavar.

There is some dispute amongst the commentaries and poskim over what is the official stance of the court. Are the judges fully recusing themselves, and thus literally, no justice is served. It is simply up to the two litigants to fight it out. Or, is it a ruling that the judges allow some kind of process whereby the two individuals fight it out amongst themselves and it becomes a demonstration and evidence of ownership. In other words, the person who has the greater Will and moral resolve somehow will prevail, be providentially, or just do the psychology of somebody who feels he is the rightful owner.

There are two halachic implications of this legal – psychological – spiritual concept, depending on how it is understood. If it is merely a withdrawal and recusal of the judges, that would mean a month from now if the litigant who lost could somehow strong-arm and retake possession, he would have the same rights as the prior person. Second, even the first litigant who prevailed in this battle of wills is not a true owner, but rather an occupier, and cannot use this possession as part of an exchange that activates a Torah obligation, such as giving it as an object of value to effectuate Kiddushin. However, if the judges allow this ordeal to take place and consider it as de facto evidence of ownership, it becomes validated and is considered a court mandated possession. It would not be reversible even if the second litigant later prevailed and took it out of the first person‘s hands. (See Rashbam on this daf, Tosafos Rid Bava Metzia 2a, Rosh Bava Basra Chezkas Habatim 22 and Rav Elchonon Wasserman Kovetz Shiurim, Kesuvos 55 and Kovetz Hearos 71:2.)

How is this justice? On a simple level, we can understand that the greatest justice arises when the judges and the court are humble enough to understand that they have no ability to get to the bottom of the issue. It might be disturbing and unfortunate that they cannot be agents of justice, but it also is a powerful statement to say that our abilities end here and therefore we must recuse ourselves. But even further, if we follow the Rosh, this may also be seen as a judicial action, based on a certain evidentiary process. A basic understanding of the Rosh’s position is that the struggle somehow proves he is the rightful owner because the thief or liar is ambivalent but the true owner is resolute.

There are deeper psychological metaphysical aspects to this as well. Likkutei Halachos (Choshen Mishpat, Hilchos Chezkas Metaltelin 1) explains that a person’s possessions have a certain draw and spiritual attachment as an expression of who they are. To the thinking of Likuttei Halachos, the possessions of a person who walks with God are divinely ordained. In the world of a person whose soul and self are attuned, he will feel drawn to, (or I suppose, repelled by), objects and experiences. For such a person, even the most mundane object or experience is multi-valent. Nothing happens without introspection, mindfulness and attachment to God’s will, (as beautifully articulated in Moreh Nevuchim’s (III:51) famous Palace Metaphor.

Throughout history, cultures employed various forms of Trial by Ordeal in the hopes that either the person subjected to the test will be saved because of their stronger conviction of their innocence, or their guilt will lead to self sabotage, or their innocence or guilt would be divinely orchestrated at that moment of intense danger or truth. The phrase “Trial by Fire” comes from an ancient practice, where literally they would determine a person's guilt, or innocence based on whether they could survive walking through a fire, or how quickly their burns would heal. Similarly, an accused person may be tied and weighed down, and thrown in the water, with the presumption that the innocent person somehow will miraculously survive. (https://en.wikipedia.org/wiki/Trial_by_ordeal ) 

The Torah also uses ordeals at least regarding the Sotah ritual, though the ordeal is strikingly different in expectations. Instead of, “A test to see you are innocent, so let’s see if you don’t drown or burn,” the Sotah ritual is a test to see if one is guilty. There is a big difference here, especially if one humbly holds that a society which employs the ritual must be overall deserving of divine intervention. The Gemara (Sotah 47a) says that the Sotah waters stopped working when adultery began to proliferate. The point is, in our religion the ordeal relies on a miracle to prove guilt, which is more respectful because nobody dies if there isn’t enough merit for this. Secular ordeals throw the defendant in the fire or water, and expect the miracle to save the person. That could be unfortunate for many innocent people who do not merit divine intervention to save them. (It is considered impertinent to “force” God’s hand by making demands or tests of faith (see Ta’anis 23a and Rosh Hashanah 4a.)

In regard to the ordeal of Kol De’alim Gavar, it would seem we are demanding a miracle, in the expectation of divine intervention in granting him possession via his victory. Why is that not impertinent? The answer is that even though it is a test, relying on divinely granted inspiration to stay in possession, since technically each person is equally in possession of the object, there are no dire consequences if there is no merit. Meaning to say, in the secular ordeal, God is, so to speak “set up”. We throw the person in water or fire and say, “If he is innocent God will save him.” However, in this case of Kol De’alim Gavar, though we are saying, “If it is truly his, God will help him, inspire him, or his spiritual sense of his objects will guide him to win the struggle and take possession”, it is still not relying on a on an outright miracle to maintain possession. Furthermore,if he does not merit any supernatural inspiration or guidance, he won’t drown, burn or necessarily lose the object. This is because he currently has equal possession. 

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

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