King Solomon's Judgment(I Kings 3:16)

Then two women came to the king, and stood before him. The one woman said, “Oh, my lord, this woman and I dwell in the same house; and I gave birth to a child while she was in the house. Then on the third day after I was delivered, this woman also gave birth; and we were alone; there was no one else with us in the house, only we two were in the house. And this woman’s son died in the night, because she lay on it. And she arose at midnight, and took my son from beside me, while I slept, and laid it in her bosom, and laid her dead son in my bosom.

“When I rose in the morning to nurse my child, behold, it was dead; but when I looked at it closely in the morning, behold, it was not the child that I had borne.” But the other woman said, “No, the living child is mine, and the dead child is yours.” The first said, “No, the dead child is yours, and the living child is mine.” Thus they spoke before the king.

Then the king said, “The one says, ‘This is my son that is alive, and your son is dead’; and the other says, ‘No, but your son is dead and my son is the living one.’” And the king said, “Bring me a sword.” So a sword was brought before the king. And the king said, “Divide the living child in two, and give half to the one, and half to the other.”

Then the woman whose son was alive said to the king, because her heart yearned for her son, “Oh, my lord, give her the living child, and by no means slay it.” But the other said, “It shall be neither mine nor yours; divide it.” Then the king answered and said, “Give the living child to the first woman, and by no means slay it; she is its mother.”

And all Israel heard of the judgment, which the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to render justice.

What was the relevance of the evidence on which Solomon relied? Is it possible that this “wisest” of all judgments was based on irrelevant evidence? Would a modern appellate court uphold a judgment based on such evidence if the appellate court were not convinced that the trial judge was divinely inspired?

In thinking about this problem, consider the following: Relevance is a relational concept. You cannot tell whether something is relevant without knowing what it is you are trying to decide. Thus, the most important question about any item of evidence is “What is this evidence offered to prove?” Or, to use Rule 401’s terms, what is the “fact … of consequence”?

It looks as if Solomon were deciding who was the real mother. But the evidence, namely the differing responses of the two women to the prospect of the child’s being killed, seems quite ambiguous when judged in terms of its probative value on the question of which woman is the real mother. One can easily imagine further facts about the two women and the child that would affect our view of the significance of their responses. Suppose there was evidence that one of the women was a brutal child-hater who already had more children than she wanted, while the other was a person who opposed all forms of killing and who had been trying for years to bear a child. Would this evidence be relevant? How would it cut? A brutal child-hater who already had more children than she wanted might prefer to have the king kill the baby rather than see it go to her hated, lying neighbor. Perhaps the neighbor was indeed a saintly person who had wanted a child for years and, when she found her baby dead, had pulled a switch—but then repented when she saw that the king was about to kill the baby. Is it possible that Solomon concluded that he could not decide who the natural mother was and therefore based his decision on a quite different ground, namely, who would be the better mother?

But if Solomon were deciding not who was the real mother, but who would be the better mother, we have little question about the relevance of the women’s responses, and Solomon’s judgment exudes wisdom. The relevance of the evidence thus depends on what issue actually is being decided.

Suppose that Solomon knew just what he was doing: He wanted to act in the best interests of the child, and he was convinced that he would best serve the interests of the child by awarding custody of the child to the kind and generous woman—the “better” mother as opposed to the natural mother. Moreover, suppose further that he knew that a “best interests of the child” standard would be a radical departure from Hebraic tradition, likely to be highly controversial, perhaps even unpopular enough to lead his subjects to question his wisdom. Was it wise for Solomon to portray his judgment as one about who was the natural mother? By doing so, Solomon avoided many hard problems with the “best interests of the child” standard. What, for example, would stop a third woman from saying that she would be an even better mother to the child, or the natural mother from saying, “since when is it the law of Israel that you can take babies away from their real mothers?”

Do we think less of Solomon if we imagine that he saw all of this and consciously engaged in deception? Should the lawgiver always communicate his laws and judgments forthrightly, or are there circumstances in which we, knowing the full picture, would condone and perhaps even approve a bit of distortion in how we adjudicate a controversy in order to affect how our adjudication of the controversy is perceived by the populace? Is this the wisdom of real politics or a path to self-deception and corruption? In any event, what do these issues reveal about the logic of relevance in courts? If logic is not the only component of relevance in law courts, what other values does the concept of relevance serve?

Another view of the Solomon story sees it as a demonstration of ruthless, brutal male power exercised over powerless women who are stereotyped into the good woman, cowed and deferring to male authority, and the bad woman, strong enough to resist superior male power even when it seems hopeless and irrational. See A. Althouse, Beyond King Solomon’s Harlots: Women in Evidence, 65 So. Cal. L. Rev. 1265 (1992). Althouse’s alternative explanation of the biblical story (versions of which exist in many other cultures) is that it is a fiction designed to legitimize Solomon’s attempt to make a transition from military conqueror to legitimate sovereign by demonstrating the wisdom of his judgment, but that, in fact, it does just the opposite if closely examined. Althouse argues that it is at least a reasonable interpretation that the first woman yielded to the king when he flaunted his physical power and authority. The Other, whom history brands the bad, selfish woman, resists power, continues to assert her claim, and stands on principle, even in the face of a great loss. We can read the Other woman’s statement as an outcry against injustice and brutality, a breakdown of reason. Indeed, the Other’s comment comes only after the [“good”] One’s concession of the child and thus does not appear to be a product of reason. If the Other were truly cold and calculating, she could have simply kept her silence and received the child. …

[B]ald power transmutes into the appearance of reason! The king lifts a murderous sword, and we manage to perceive it as a coup of reason, attributing to him not ruthless brutality, but amazing and modern wisdom. …

The notion that the Other saw through him and called his bluff, only to be penalized for upstart counterwisdom, or that she understood the cruelty of power, and despaired, remains submerged. We accept as supreme wisdom, as “the wisdom of God,” a process by which a powerful man tricks two powerless women and sorts them into two piles: the good and the bad, the motherly and the unmotherly, the truthful and the lying. “Reason” here (and the very beginning of law) takes the form of a simplistic rule stating that proper mothers are selfless and sacrificing, a rule applied through the emotional torture of making the alleged mother believe in the imminent death of her baby and waiting to see what she happens to blurt out.

Does Professor Althouse’s interpretation of Solomon’s judgment suggest yet a deeper function for the rules of relevance and materiality, functions that go to the very sources of power and authority in society? Moreover, does the use of such archetypical myths, even as subjects of critical discussion, itself perpetuate the stereotypes and power structures that dominant members of society want to preserve, as Althouse suggests? Id. See also A. Althouse, The Lying Woman, the Devious Prostitute, and Other Stories from the Evidence Casebook, 88 Nw. U.L. Rev. 914 (1994).

King Solomon found the women’s reactions to his proposal not only “relevant” to the decision he was required to make, in that they tended to make the facts on which the decision was based more likely than those facts would have been in the absence of their reactions, but also “sufficient” to support the decision rendered. In the trial of cases in court these two concepts are often separated. “Relevance,” namely the tendency to make a fact of consequence to the decision sought more or less likely, is usually assessed at the time evidence is proffered. The court’s job at that time is to determine whether the evidence will be “admitted” to be considered by the fact finder along with all the other evidence offered and to be offered during the trial. The issue of sufficiency comes up in a jury trial on a motion for a directed verdict at the close of the evidence. At that time, the court must decide whether the evidence “admitted” is “sufficient” as a matter of law to support all potential outcomes sought. If the judge determines that the evidence in support of a particular outcome is not “sufficient,” it is the duty of the judge to direct a verdict against that outcome. The standard of sufficiency of evidence to support various outcomes, that is, how much evidence is required to support a potential jury verdict or factfinding by the judge, varies according to jurisdiction and cause of action and is not addressed in the Federal Rules of Evidence. The low standard of sufficiency of evidence often required to support a verdict of a jury and the lack of effective oversight over the jury’s reasoning processes can mean that with key bits of evidence admissibility can become almost synonymous with sufficiency.