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Thus spoke Solomon
Gijs van Oenen
(Fragment from a draft article)
The most important element of a situation of crisis is that the matter of principles become ‘acute’ – it escalates and becomes a matter of life and death. Principles can therefore, in this context, best be understood as the vague sort of normativities that we produce in the inevitable but ultimate fruitless search for the exploration of the ‘origin’ of the political-constitutional order. Reference to principles is thus a way of thinking and living with ‘residual decisionism’ and juridical indeterminacy. Principles are thus a product of the exploration of origins, not in the sense that they could actually or literally be found at any origin, but in the sense of ‘conjectures’ that metonymically represent our idea of an origin. The constitutional crisis inevitably turns on the question about the nature and ‘genealogy’ (or, as H.L.A. Hart calls it, a ‘pedigree’) of legal or constitutional principles; a question that high courts must solve in order for their ‘crisis intervention’ to be successful.
As mentioned, however, the origin cannot truly be ‘explored’, and the question therefore cannot have a straightforward answer. Whether they realize it or not, judges must therefore resort to a form of trickery or deception, a ‘turn’ that cannot justified within the framework of (constitutional) law itself. I want to illustrate this by means of a wellknown model of constitutional judgment, that of Solomon in 1 Kings 3. […] Two women appear before king Solomon claiming to be the true, that is to say natural, mother of a baby. Usually, Solomon’s judgment is merely conceived as a clever trick to factually expose the true mother: she will put the interest of the child before her own interest. But a more enlightening reading of this episode seems possible, and called for. In such a reading, the case forms the most literal representation possible of the dilemma of origins. The irreducible ambiguity of the real/unreal mother simply is the form of any originary dilemma. Real and unreal mother may be distinguished (or ‘analyzed’), but not separated (cf in German unterscheiden/scheiden)
A situation of crisis, however, is exactly the type of situation in which an irresistible urge arises to deny the essential ambiguity of the origin, and to definitely ‘establish’ this origin. A controversy over motherhood, or presidency, will typically produce such an urge (in the case of the Solomonic judgment, the dilemma is deepened even further by the fact that both women are cast as prostitutes, making not only motherhood but even fatherhood uncertain). In both cases, the only ‘fair’ solution seems to force a ‘separation’. Cleaving, or splitting, the origin seems the only way to terminate its radical ambiguity.
Presidential electors may be divisible,
but the presidency itself of course is not. The impossibility of division
is symbolically represented in the Solomonic judgment by the decision to
‘split’ the baby down the middle. The fact that the contested issue is
a human baby dramatizes this point, but is not really necessary to make
the case. Cleaving its origin will kill the spirit of any matter.
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