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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?
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.
In response to a question seeking Radbaz’s opinion as to what was so genius about King Solomon’s judgement (Resp. §1059), Radbaz considers from a halachic standpoint that one could advocate the opinion that a judge/court is permitted to remove an item from its possessor on the basis of circumstantial evidence (which King Solomon deduced). Alternatively, Radbaz entertains the idea that when the second woman suggested “nor you nor I should have this baby...” she essentially released it from her custodial possession.
Ralbag (1 Kings 3:16)- this was a tactic to determine who was lying which in turn invalidates the liar's testimony. Otherwise the child would remain with whomever was established as having possession of it.
RO"Sh (Responsa Klall 107) - in cases where there judgement is not clear [according to the standard halachic parameters] the judge should not leave things 'undecided until Eliyahu comes' but rather use his understanding to render a judgement based on his intellect as Shlomo did.
