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In 1 Kings 3:16-27 there is a story of two prostitutes who appear before King Shlomo, each having a newborn baby. One of the babies died and there was a dispute as to which one. There were no witnesses to consult and so Shlomo employs his wisdom, by suggesting to cut the baby in half and give each half to one of the women, to discern which woman is the true mother of the living child.

My question is: what would the halacha dictate in this case?

  • Is that חזקת אמהות? It sounds like עריות - who's one to be considered the living child's mom with all the עריות implications? – Al Berko Nov 15 '18 at 15:47
  • Another problem that while הפקר ב"ד הפקר in Mamonos, it does not hold in עריות, so KS can't just rule it he surely need real Halachah. But in the Halacha, as I remember one woman is not trusted to say "this is my son" esp. when contradicted by other. So my call is that the child is ASSUR for both, as maybe he's an Issur and women is trusted in Issurim. – Al Berko Nov 15 '18 at 16:08
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    How did you think they were 2 prostitutes? Did you see that somewhere? – David Kenner Nov 16 '18 at 5:38
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    Could you explain your question about the "Halachah"? Halachah regarding what exactly? – David Kenner Nov 16 '18 at 5:40
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    @DavidKenner Apart from the fact that they're called זונות? – b a Nov 21 '18 at 1:17
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According to two midrashim quoted in the Hebrew Wikipedia, the rabbis criticised Shlomo for judging this case without witnesses. (One opinion there assumes he actually intended to go through with cutting the child in half, which makes it much worse.)

Clearly, in the absence of any witnesses or evidence the halacha is that המוציא מחברו עליו הראיה - the one in possession maintains it; the Bet Din cannot interfere. However, if we assume that Shlomo's intention was indeed to provoke an identification from the true mother, then this is a permissible act of judicial creativity; Shlomo used his wisdom to solve a problem which is not solvable by the standard rules of halacha.

  • Hamotzi mechavero means: If someone wants to take something away from his friend, the burden of proof is on him. Bes Din would then interfere. – David Kenner Nov 21 '18 at 2:39
  • Correct. But until he brings a ראיה, the Bes Din does nothing. – Josh Friedlander Nov 21 '18 at 11:47
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    Does hamotzi m'chavayro apply to people? Why would we not apply the rule of chazaka? Or perhaps since the first woman claims everything happened in her sleep she is making a shema claim while the second woman is making a bari claim? – rikitikitembo Nov 21 '18 at 13:54
  • Those are good points. Maybe add them as a new answer? Also, I wonder if R' Osher Weiss discusses this somewhere, it seems right up his alley. – Josh Friedlander Nov 21 '18 at 15:32

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