A Reading in an Alternative Dispute Resolution (ADR) From 3000 Years Ago

How King David Instituted Justice and Solomon Pushed the Frontier of Judicial Wisdom

Abstract:

This article presents an analysis of an Alternative Dispute Resolution (ADR) of a conflict that took place 3000 years ago in Jerusalem during the reign of King David. The sheep of a sleeping shepherd strayed overnight into the land of a farmer (the plaintiff) and devoured its entire harvest. Taking an eye-for-an-eye approach and since the value of the herd turned out to be equivalent to the impaired harvest, King David ordered that the farmer takes possession of the herd in return. Displaying a finer understanding of the nuances of the incident and taking a broader socioeconomic perspective, Solomon proposed the integration of the productive assets of the disputing parties into a time-bound, purpose-specific enterprise with the ultimate aim of restoring and expanding the socioeconomic well-being of both parties and society at large.

This close to 3000 year old narrative is typical of modern-time disputes where the negligence of one party ends up causing the impairment of another party’s asset. In most cases, courts would justly order some sort of financial compensation, proportional to the harm sustained, to be paid by the negligent to the injured, even if that meant liquidating some or all of their assets. This could have been the case of our fellow shepherd in the following story…. but there just may be a finer treatment.

It all started when the flock of a sleeping shepherd strayed overnight into the land of a farmer (the plaintiff) and devoured the entire harvest. As it turned out, the shepherd did not have the money to pay for any of the damages he caused and the commercial value of the lost crop was commensurate to that of the herd. So the judge, King David, ordered that in compensation for the lost income sustained by the farmer, he would be given the flock of the shepherd in return. After all, they were both of equal value. Then, it so happened that on their way out of the “court room”, the two men ran into Solomon, David’s Son, so the grieving shepherd (the appellant) told him their story. Solomon “appealed” the ruling and suggested as just but a more lenient and ingenious settlement: the farmer would take ownership of the flock and hence benefit from the revenue of its product (milk and wool), and will also employ the shepherd (to maintain the sheep and perhaps assist him in farming) until the farm was restored to its original state, then the farmer would return the ownership of the herd back to the shepherd and from then on it’s business as usual.

While the solution presented by Kind David was in technical terms strictly just, which is in its own right the fundamental quest of all adjudications, the solution presented by Solomon went above and beyond the mere notion of justice. This short essay is an attempt to explore the reasoning behind both reasonings and to offer some insights to help improve our approach to resolving disputes caused by acts of negligence.

Unlike his father king, Solomon seemed to have taken a larger perspective than just one of instituting justice between two disputing parties; that is to preserve society’s productive assets and, to restore and further promote its socioeconomic welfare. Essentially, the “incident” resulted in the disruption of the established socioeconomic equilibrium of the community at large. The first party, the farmer, lost the product and hence the income of his labor causing him to resort to litigation. The perfectly just “dollar-for-dollar” approach taken by King David would have eventually resulted in the second party, the shepherd, losing his revenue-generating asset in retribution for his negligence, becoming unemployed and the inevitable bitterness associated with all acts of litigation. Furthermore, David’s treatment would have caused the misallocation of society’s resources – not being a shepherd by profession, the farmer would have almost certainly ended up selling the sheep for cash to sustain his life expenses until the next harvest which meant that society would have ended up losing part of its productive assets (the herd). (See the parties’ cash flow patterns, figure.1).

Solomon’s ruling however aimed at undoing the effects of the incident and reinstating, over a period of time, the state of affairs that prevailed prior to the fact. One can conceive that his ultimate quest was to eventually restore the socioeconomic order and, to leverage this incidental opportunity to further the wealth of society and reinforce its social cohesion. When considering the transition period that extended between the incident and returning to the status quo, we see that the shepherd and farmer were obliged to integrate their productive assets (land and livestock) in a time-bound, purpose-specific enterprise, exchange their know-how (the farmer now the actual owner of the herd had active interest in maintaining it and maximize its productivity, and the shepherd too had to learn about farming to accelerate the restoration of the farm and regaining his sheep) and synergize their labor (two people instead of just one farming the land which meant that possibly they were able to grow more land). So, by the end of the transition period, society ended up with a balance sheet that looked even stronger than, if not equal to, the one it had prior to the fact and enjoyed much stronger socioeconomic ties among its members. (See Society’s balance sheet, figure 2).

We can also observe that however the commercial value of the crop and herd was equal, Solomon distinguished between the notion of productive assets (the herd and the land) and their product (crop, and milk and wool) and chose not to compensate the impairment of an item on the income statement with one on the balance sheet.

We can conclude that.

1. Even the seemingly straightforward principle of “an eye for an eye” could entail several interpretations, all being valid. The value of the “herd” for the value of “crop” is as valid as the value of “the product of the herd” for the value of the “product of the land”; they distinguish in the finesse by which each perspective discerns the nuances of the fact and hence the mechanics of the treatment.
2. The ultimate purpose i.e. the philosophy of law-making and interpretation is to promote socioeconomic prosperity within society i.e. expand its wealth and strengthen its cohesion, while its bare minimum is to institute justice.
3. In cases involving impairment of physical resources due to negligence, except for loss of life, the creative rather than the merely interpretative aim of judging is to undo, to the best possible extent, the repercussions caused by the incident and reinstate the socioeconomic equilibrium that existed prior to the fact. In such cases, “lenient justice” may be more preferable than “strict justice” that could be somewhat “harsh”.
4. Different juridical views could all be right as long as they establish justice as their bare minimum. They distinguish insofar they promote the sustainability and maximization of socioeconomic prosperity.
5. Justice involves the mere interpretation of juridical text, but judicial wisdom involves a finer dissection of the facts and the “engineering” of a resolution that turns the “incident” into an “opportunity” to expand the socioeconomic prosperity of disputing parties and the community as a whole.

Further Reflections over the Underlying Theory and Application in Solomon’s Approach

One can think of a number of principles that could have informed and shaped Solomon’s thinking and subsequently his treatment of this dispute.

Principle (1): “No Harm done” principle – Where possible, healing both the material and moral injury is a relatively better approach than merely instituting justice by offering compensation that inflicts proportionate harm on the wrongdoer. Engineering a mechanism to undo the harm as to restore and sustain the socioeconomic order and rebuild goodwill, is a higher-order reconciliation strategy than strict compensation, for the latter will give motion to a whole new set of ramifications. Solomon was not happy with a zero sum solution that just shifted the loss from one side to the other.

Principle (2): Shared economic benefits will outweigh human differences (Substitute Reciprocal Harm with Shared Benefits) – the economic and social ties that develop among people over time as they engage in the pursuit of mutually inclusive economic benefits have the potential to eventually outweigh their differences and to promote forgiveness and reconciliation.

Principle (3): Diversification promotes sustainability – the integration of economic activities across a given sector could (a) expand its output and (b) enhance the sustainability of the participants and society at large, as the risk of failure in one business activity can be mitigated by other activities.

How These Principles Were Illustrated In Solomon’s ADR Framework?

The integration of the productive resources of disputing parties into a time-bound, purpose-specific, diversified enterprise where labor and resources across different business activities (farming and shepherding) had to be synergized to exploit mutual economic benefits, encapsulates the application of the three aforementioned principles: the healing / no-harm-done mechanism; the substitution of reciprocal harm with traded benefits; and, promoting economic sustainability through portfolio diversification.