Ulpianus

Was King Solomon an Arbitrator or a Judge?

• The decision focused in the past and not in the future. Actually, no future was possible under the arrangement of King Solomon.
• The King looked at the parties’ positions and not at their needs. Each woman apparently wanted (needed) to keep the child to grow with them. The second woman’s cry ("He shall be neither mine nor yours; divide him!"[4]) was made after King Solomon suggested the partition; her original intention was to keep the child alive with her. Had Solomon focused on the parties’ need, he should never suggest the killing of the child. And he obviously did not focus on the child’s needs.
• Unable to solve the problem from its roots, King Solomon limited to apply justice, therefore creating iniquity.
• The solution presented a lose/lose scheme. Both women would lose under his arrangement.
• As if dividing common property, the King’s solution asked for the partition of the baby, frustrating the goals of dispute resolution. A creative parenting plan would be more effective, keeping the child alive and letting both women to share the joy of motherhood.

For all this reasons, King Solomon’s approach to resolve the dispute was more alike to those taken by judges in conventional dispute resolution procedures.

The fair ending of the story did not depend on his proposed solution, but in the desperate call of the real mother to keep the child alive.

Footnotes:
[1] I Kings 3: 16-28. The complete text is reproduced:
16Then two women who were harlots came to the king and stood before him.
17The one woman said, "Oh, my lord, this woman and I live in the same house; and I gave birth to a child while she was in the house.
18"It happened on the third day after I gave birth, that this woman also gave birth to a child, and we were together. There was no stranger with us in the house, only the two of us in the house.
19"This woman's son died in the night, because she lay on it.
20"So she arose in the middle of the night and took my son from beside me while your maidservant slept, and laid him in her bosom, and laid her dead son in my bosom.
21"When I rose in the morning to nurse my son, behold, he was dead; but when I looked at him carefully in the morning, behold, he was not my son, whom I had borne."
22Then the other woman said, "No! For the living one is my son, and the dead one is your son." But the first woman said, "No! For the dead one is your son, and the living one is my son." Thus they spoke before the king.
23Then the king said, "The one says, 'This is my son who is living, and your son is the dead one'; and the other says, 'No! For your son is the dead one, and my son is the living one.'"
24The king said, "Get me a sword." So they brought a sword before the king.
25The king said, "Divide the living child in two, and give half to the one and half to the other."
26Then the woman whose child was the living one spoke to the king, forshe was deeply stirred over her son and said, "Oh, my lord, give her the living child, and by no means kill him." But the other said, "He shall be neither mine nor yours; divide him!"
27Then the king said, "Give the first woman the living child, and by no means kill him. She is his mother."
28When all Israel heard of the judgment which the king had handed down, they feared the king, for they saw that the wisdom of God was in him to administer justice.
[2] Conventional Dispute Resolution mechanisms
[3] Alternative Dispute Resolution mechanisms
[4] I Kings 3: 26

posted by Mastropiero @ 9:55 PM