In the Quran, the story that begins with the phrase “And mention David and Solomon” is narrated in verses 78-79 of Surah Al-Anbiya. The story concerns a vineyard that has been ravaged by a person’s sheep, and the plaintiff has come to Prophet David to seek compensation for the damage. Prophet David rules that the sheep should be taken from the defendant and given to the plaintiff as compensation for the damaged vineyard. At this moment, Prophet Solomon, who is estimated to be only 12 or 13 years old, states that this judgment reflects relative justice and explains: “The vineyard will recover, it will flourish, and it will produce grapes again. Until the vineyard is restored, let the sheep be taken from the defendant and given to the plaintiff, so that the plaintiff can benefit from the sheep until his field is restored and his loss is compensated; this is absolute justice.” In my view, this decision embodies a profound understanding and remarkable intelligence that encompasses a culture of consensus and reconciliation, reflecting the concept of gaining without causing loss, which we should aim for even in modern law today. I want to reiterate and emphasize that in this story, I see the culture of reconciliation that permeates the ruling, the great respect for property rights, and the reflections of modern concepts like collateralization and yield management, all while compensating the other party without causing them harm. This ancient ruling has greatly affected and made me think deeply as a young lawyer. The Quran states regarding this matter, “We had taught judgment to Solomon. Indeed, We had given each of them sovereignty and knowledge”. (1)
While explaining this story in different sources, I would like to mention the concepts of ‘‘Absolute Justice (Adalet-i Mahza)’’ and ‘‘Relative Justice (Adalet-i İzafiye)’’ in this article.
Relative justice (adalet-i izafiye) means imperfect, incomplete justice. Absolute justice (adalet-i mahza) means perfect, complete justice. The right of a single individual in the absolute justice cannot be violated even if there are general interests. While relative justice and absolute justice are being discussed, the subject turns around and definitely comes to the discussion of public interest. Because the rights of individuals are ignored or violated because it is often against the public interest. Such a thing is unthinkable in absolute justice (adalet-i mahza). The right of an individual is neither less nor more than the public nor the right of another individual; it cannot be sacrificed. This topic is rather deep and very hard to come to a conclusion.
When I was thinking about this story and these two concepts, the Mary and Jodie case, also known as Siamese twins or conjoined twins that lawyers know and often discuss about, came to my mind, and I wanted to put this case at the basis of this article. (2)
Mary and Jodie are Siamese twins born conjoined. If they are not separated with an operation, both of the babies will die in a few months. When they have the operation Mary will definitely die, and Jodie will be able to live a normal life. Even though the doctors decided to start the operation as soon as possible, the Catholic family refused the operation, saying that this is the will of God. Upon this, the doctors asked the court for a determination decision in order to perform the surgery. Although the local court determined that the surgery should be performed, the family appealed the decision. However, the Supreme Court of United Kingdom rejected the appeal request, found the decision of the local court correct. Thus this case, which was seen in the 2000s, opened the door to many discussions.
In summary, the fundamental questions discussed in this case are ‘‘In whose interest is this case?’’, ‘‘Are Mary and Jodie separate individuals?’’, ‘‘Is Mary’s right to live one day less important than Jodie’s right to live longer?’’. From the doctors’ perspective, when the surgery is performed, there should be no liability. Despite the family’s decision to reject the operation, the decision to perform the operation was made within the ‘‘best interests, legal interests’’ discussion.
In this case, the judges of the Supreme Court of United Kingdom, although proceeding by different paths, reached the same conclusion and decided that the surgery should be performed. The judges also stated that the twins should be separated for the sake of Mary’s physical integrity and dignity, as they are two separate individuals. This surgery is in Jodie’s best interest according to all 3 judges, but it is not in Mary’s best interest according to the other 2 judges expect one. Still, separation surgery should be performed to ensure Mary’s body integrity.
One of the judges stated that Mary slowly killed Jodie and that the surgery was self-defense, another stated that the surgery was not about Mary’s death but about her body integrity, and another stated that there was a state of necessary.
On the other hand, the judges did not find it right to make a value comparison between the two lives. According to the judges, this comparison is not mandatory for this case.
At this point, the words of one of the judges regarding this incident, ‘‘the lesser of two evils should be preferred’’ touches upon a subject that has been thought about and discussed for centuries within the framework of the concepts of relative justice (adalet-i izafiye) and absolute justice (adalet-i mahza).
This issue also found a place in the laws and principles written in the Mecelle-i Ahkam-ı Adliye (Mecelle) commission, which convened in the Ottoman Empire to update and unify the law as a result of the modernism debates. In the Mecelle, which is actually unfinished, article 29 says:
“The lesser of two evils is chosen.” (Mecelle article 29)
This rule, that is, if it is necessary to make a choice, the rule that the least bad among the bad ones should be chosen, while it has a place in the ancient rules, it can also be included in modern legal texts today. In fact, as a reflection of this rule, even some individual rights that cannot be violated can sometimes be violated. For example, the state’s expropriation of an individual’s property is an example of this. Or, the unlawful evidence described by the principle of ‘‘the fruit of the poisonous tree becomes poisonous”, which is one of the most basic criminal law principles, cannot be taken as a basis. An exception to the non-justice rule in the German doctrine has generally appeared as ‘‘unlawful evidence can be evaluated if the social benefit in revealing the crime is more important’’ to be used in terrorist crimes.
On the other hand, there are also many people who reject the principle of ‘‘the lesser of two evils’’ in principle, such as Arendt. The main basis here is that the evil is evil and should not be preferred.
Another example where this issue is discussed is the ‘‘Trolley Problem’’. Rather, there are those who prefer ‘‘the lesser of two evils’’ on this issue, which is discussed on the moral-ethics axis.
Nowadays, legal professionals must develop and explore ways to achieve better while implementing existing, legitimate law. Just as in the Mary-Jodie case in 2000, we should think about what we should do in the matters that may appear at any time, we should be able to ask the right questions, discuss the basic principles while reaching the conclusion accompanied by logical and consistent answers, and investigate ways to make absolute justice even more applicable. (3)
Lawyer Haldun Barış, April 2023
Turkish to English translation: Feyzanur Öner
- ‘‘And ‘remember’ when David and Solomon passed judgment regarding the crops ruined ‘at night’ by someone’s sheep, and We were witness to their judgments.’’ Al-Anbiya, 78
‘‘We guided ‘young’ Solomon to a fairer settlement,’ and granted each of them wisdom and knowledge. We subjected the mountains as well as the birds to hymn ‘Our praises’ along with David. It is We Who did ‘it all’.’’ Al-Anbiya, 79.
- When we were students, we discussed the Mary-Jodie case in detail in Sociology of Law course at Ankara University Faculty of Law. Saim Üye was the teacher of the course. You can access the teacher’s article on the subject, which I also benefited from for this article, from the following link: https://dergipark.org.tr/tr/download/article-file/398602
- In this article, I wanted the concepts of relative justice (adalet-i izafiye) and absolute justice (adalet-i mahza) come to our minds in the context of the story in the Qur’an, Mary-Jodie case and the principle of ‘‘the lesser of two evils is chosen’’, rather than reaching a conclusion.
