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LOST AND FOUND Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them: thou shalt in any case bring them again unto thy brother. And if thy brother be not nigh unto thee, or if thou know him not, then thou shalt bring it unto thine own house, and it shall be with thee until thy brother seek after it, and thou shalt restore it to him again. In like manner shalt thou do with his ass; and so shalt thou do with his raiment; and with all lost things of thy brother's, which he hath lost, and thou hast found, shalt thou do likewise: thou mayest not hide thyself. Thou shalt not see thy brother's ass or his ox fall down by the way, and hide thyself from them: thou shalt surely help him to lift them up again (Deut. 22:1-4).
These laws governing lost property were extensions of Exodus 23:4-5: "If thou meet thine enemy's ox or his ass going astray, thou shalt surely bring it back to him again. If thou see the ass of him that hateth thee lying under his burden, and wouldest forbear to help him, thou shalt surely help with him." These were not seed laws nor land laws. They were cross-boundary laws. As I wrote in Tools of Dominion regarding the Exodus passage, these laws, since they deal with property, were governed by the theocentric principle of God as the cosmic Owner. He has delegated ownership of selected portions of His property to individuals and organizations, so that they might work out their salvation or damnation with fear and trembling (Phil. 2:12). Because God has delegated responsibility for the care and use of His property to specific individuals or organizations, who are held responsible for its management, non-owners are required by God to honor this distribution of ownership and its associated responsibilities.(1) This includes even the return of lost property to its owner.
What these laws mandate is the public's recognition that all ownership is delegated and therefore representative. Ownership means lawful delegated control over the use of a scarce economic resource. The stranger who finds a lost item becomes a delegated owner working on behalf of the property's two owners: God and the delegated owner. There is a new hierarchy of ownership: God > legally responsible title holder > discoverer. The discoverer is under the greatest legal constraints governing the use of the property because he does not hold title, yet he now possesses physical control over the property. The fundamental principle of all biblical government is this: with power comes responsibility. The discoverer cannot legally escape responsibility before God, for God has transferred to the discoverer a temporary, though highly restrictive, administrative legal title. This is why the law does not identify the discoverer as a thief.
Because these laws are so similar to the Exodus laws, I reproduce here much of Chapter 25 of Tools of Dominion. Some readers may not own a copy of my earlier book. It may be inconvenient for them to locate a copy. It is easy for me to reprint what I wrote there, but with a few modifications. The Exodus case laws single out enemies. These do not. The Exodus law regarding the lost animal is the stronger law because it deals with an animal owned by an enemy. The Deuteronomy version is more general: the finder may not know who owns the wandering beast. Because of his lack of information, he is required to expend resources to care for the animal until the owner claims them. The finder's lack of information leads to expenses associated with caretaking. In this regard, this case law is also an extension of the caretaking law.(2)
I focus here on the law regarding the lost animal, although the same principles of responsible administration govern all forms of lost property. Consider the law of the fallen animal. It is a simple case: help the animal. It does not matter who its owner is. This assistance is a charitable subsidy to both the animal and its owner. It creates good feelings. A good deed done on behalf of the fallen animal should be seen by the owner as a sign of the helper's righteousness. It testifies to the helper's commitment to God's law. Because the law of the fallen animal is an uncomplicated law, I do not devote much space to discussing it.
Let us consider more carefully the law governing the lost animal. There are several beneficial results of this moral law whenever it is widely obeyed. First, it upholds the sanctity of the legal rights of property owners. Second, it reasserts man's legitimate control over the animal creation. Third, it increases the bonds of friendship among men with a common confession of faith. Fourth, the passage of time makes it easier to identify thieves. Fifth, it provides an incentive to develop marks of private ownership, such as brands on animals.
This law is not a civil law. Biblical civil law invokes only negative sanctions against public evil. This is because the State is not an agent of salvation. It cannot lawfully seek to make men good. It is limited to imposing negative sanctions that will make men's evil acts more expensive, thereby reducing the number of evil acts. If the State mandated charity, civil law would become a source of positive sanctions. But these laws, like the laws of Exodus 23:4-5, are positive, charitable injunctions.
Owner's Rights There is a rhyme that English-speaking children chant, "Finders, keepers; losers, weepers." When one child finds a toy or possession of another, he torments the owner with this chant. Yet his very chanting testifies to the fact that the tormenter really does not believe in his own ethical position. If he really wanted to keep the object, he would not admit to the victim that he had found it. He would forego the joys of tormenting the victim for the pleasure of keeping the object. The tormented can always appeal to his own parents, who will then go to the parents of the tormenter. In Western society, most parents know that the discovered object is owned by the loser.
From time to time, someone discovers a very valuable lost object, such as a sack of paper money that dropped out of an armored car. When he returns it to the owner, the newspapers record the story. Invariably, the doer of the good deed receives a series of telephone calls and letters from anonymous people who inform him that he was a fool, that he should have kept the money. Again, this is evidence of the West's dominant ethical position: the critics prefer to remain anonymous.
The Right of Disposal
From a legal standpoint, the reason why the law requires the finder to return the lost item to the owner is that the owner owns the rights of use and disposal of the property. What is owned is the right to exclude other people from using the property. This "bundle of rights" is the essence of ownership. The capitalist system is not based on "property rights"; it is based on some person's legal right to control the use and disposal of property. Nothing inheres in the property that gives these rights.
There is another familiar phrase, "possession is nine-tenths of the law." This is incorrectly stated, if by "possession" we mean physical control over some object. The possession which is nine-tenths of the law is the possession of the legal right to exclude, not possession of the physical object itself. The object does not carry this legal right with it when it wanders off or is lost by the owner.
We can see this easily when we consider the case of a lost child. The fact that someone discovers a lost child obviously transfers no legal right to keep the child. The child is to be returned to the parents or to the civil authorities who act as legal agents of the parents. Possession is clearly not nine-tenths of the law. If anything, possession of a long-lost child subjects a person to the threat of being charged with kidnapping. Because God is the ultimate owner of mankind, He has delegated the legal right to control children to parents, except in cases of physical abuse by parents which threatens the life of the child. In short, parental sovereignty is nine-tenths of the law, not merely possession of physical control over a particular child.
When someone who discovers another person's property is required by God to return it to its owner, there can be no doubt concerning the Bible's commitment to the private ownership of the means of production. Biblical moral law, when obeyed, produces a capitalist economic order. Socialism is anti-biblical. Where biblical moral law is self-enforced, and biblical civil law is publicly enforced, capitalism must develop. One reason why so many modern Christian college professors in the social sciences are vocal in their opposition to biblical law is that they are deeply influenced by socialist economic thought. They recognize clearly that their socialist conclusions are incompatible with biblical law, so they have abandoned biblical law.(3)
Dominion Through Judgment This case law extends man's dominion over nature: domesticated animals are not to "run wild." They are under man's care and protection. This reasserts man's place under God but above the animals: point two of the biblical covenant model, hierarchy.(4)
A lost animal can damage other people's property (Ex. 22:5). It can wander into a pit and get hurt or killed (Ex. 21:33-34). It can injure men or other animals (Ex. 21:35-36). To have a domesticated lost animal wandering without any form of supervision testifies against the dominion covenant. It is a sign that God's required moral and hierarchical order has broken down. It is an aspect of God's curse when beasts inherit the land (Ex. 23:29). In short, animals that are capable of being domesticated require supervision by man.
No man's knowledge is perfect. Men can lose control over their domestic work animals. When they do, it becomes a moral responsibility for other men to intervene and restore hierarchical order. This is done for the sake of biblical social order: 1) for the individual who has lost control over his animal and who is legally responsible for any damage that it might perform, and 2) for the sake of the animal.
A domesticated animal such as an ox is a capital asset, a tool of production. Mankind's development of tools of production is the basis of economic growth. The loss of a trained work animal reduces its owner's ability to subdue his portion of the earth. This sets back the fulfillment of God's dominion covenant with mankind. This loss of production reduces the per capita economic growth of the whole community, even though this corporate loss may not be large enough to be perceived by men. The person who finds a lost animal is required to restore it to the owner, even though this involves economic sacrifice on his part. In the long run, this implicit sanctioning of privately owned capital will produce increased wealth for all.
The biblical imagery of the lost sheep of Israel is indicative of the central concern of the Bible: the restoration of moral and legal order, the overcoming of sin and its effects. The lost sheep in history need a shepherd. They are wandering toward destruction. God intervenes and brings them home. The New Testament imagery of Jesus as the good shepherd points to the theme of restoration.
Even if biblical civil law mandated private charity -- negative sanctions on one person for the sake of positive sanctions to another -- it would be close to impossible to gain a court's conviction against anyone who ignores this law and lets the animal continue to wander. There would have to be at least two witnesses. The accused person could claim that he had never noticed the animal or any other lost object. It is also difficult to imagine what civil penalties might be attached to this law. We therefore should conclude that the enforcement of this law is based on self-government under God's law. The person who returns a lost object to its owner is demonstrating that he has acted out of concern for God's law, not out of concern for civil sanctions. He is a person who exercises self-government under God's law. Again, it becomes more difficult to entertain suspicions about his overall ulterior motives.
Let us assume that the discoverer found the animal in his garden or his fields. He wants to get it away from his crops. He is not allowed by law to kill it. It is not responsible for its actions. To get it away from his crops, he must either take it down to the edge of his property and shoo it away, or else he must place it in a pen or other restrictive area. To keep from losing wealth because of its unrestricted access to his crops, he must go to the trouble of placing it under restraints. If he wants to be reimbursed for the crops it consumed or any damage it caused, he must locate its owner. The economics of a wandering beast in a biblical commonwealth provides incentives, both positive and negative, for the righteous man to become a caretaker of the lost animal.
The person who steals an animal and is immediately arrested could offer this excuse: "I found this animal wandering in the area, and I was simply returning it to its owner. I did not know who owned it, so I was taking it home until I could make further inquiries." This excuse might work once or twice. It would not be a suitable excuse three or four times. A person who lives in a society that has developed an information reporting system, in order to avoid suspicion, must report the whereabouts of lost articles to the civil authorities if he does not know who the owner is. Thus, as time passes, the "excuse of the wandering animal" fades. The owner who discovers his animal in another's possession has a far stronger legal case than if this case law were not in God's law-order. A lost animal is not supposed to remain indefinitely in another person's possession, especially after the person who lost it announces its absence publicly. "Thou shalt bring it unto thine own house, and it shall be with thee until thy brother seek after it."
Marks of Ownership and Reduced Search Costs This case law makes it far more likely that lost property will be immediately returned to a known owner. Thus, obeying this law increases the economic return from marking property. This is an economic incentive to extend the principle of owner's rights. A person's legal claim to property is secured at a lower cost through a mark of ownership. When anything can be obtained at a lower price, more of it will be demanded than before. This is why marks of ownership are important factors in extending the free market social order. When more people own property and thereby secure the stream of income that assets provide, they will find it in their self-interest to defend the principle of owner's rights.
By marking property, the owner reduces future search costs, both his search for the animal and the finder's search for the owner. The mark also reduces search costs for a neighbor whose crops have been eaten or ruined by a wandering beast. He can then gain restitution from the owner (Ex. 22:5). Branding also reduces search costs for the civil authorities if the animal should be stolen. By burning an identifying mark into an animal's flesh, or by attaching a tag to its ear or other flesh, the owner increases risks for the thief. This also increases risks for those who would buy from the thief. The identifying mark makes it possible for the buyer to avoid the possibility that they will be charged with having received stolen property. Also, the mark reduces the buyer's risk of being forced by law to return the property to the owner, leaving the buyer with neither the stolen property nor his money.(5)
God's use of circumcision in the Old Testament era is an obvious parallel to the brand. So was the hole punched in the ear of a voluntary lifetime servant (Ex. 21:6). These were both marks of ownership. The New Testament practice of baptism leaves no visible mark, but it leaves a legal description in the records of a continuing third party institution, the church. Baptism is also a mark of God's primary ownership. The same is true of property registration generally. Titles, deeds, and other marks of legal ownership have developed over the centuries, thereby extending the dominion of mankind through the development of the institution of private property. By identifying legal owners, society increases the level of personal responsibility. This, too, is a fundamental biblical goal.
Not a Case of State-Enforced Charity The discoverer must sacrifice time and effort to see to it that the property is returned to its owner. This might be seen as a form of judicially mandated charity, one of the few examples of compulsory charity in the Bible. Compulsory charity, however, is a contradiction. Charity must always be legally voluntary. It is governed by the legal principle that the recipient has no judicially enforceable earthly entitlement to the gift. This is why the modern welfare State is careful to label its compulsory wealth-redistribution programs as entitlements. The creators of these programs want to avoid any suggestion of voluntarism, which implies that the donor has the right to refuse to make the gift. Thus, this case law is not related to charity. The owner has a legal claim on the property. He has an entitlement. The person who finds the lost property is expected to honor this legal claim, even though it costs him money or time to do so.
This law requires a form of wealth-redistribution. The person who discovers lost property owes it to the owner to return it or care for it. This is a positive injunction. Yet biblical civil law, as I have argued repeatedly, does not issue positive injunctions. It does not compel anyone to do good; it merely prohibits people from doing public evil. Thus, I conclude that this law is not a civil law, but is rather a moral injunction. There is no civil sanction attached to it, nor is there any general judicial principle of restitution that would enable the judges to determine a proper sanction. The civil government therefore has no role to play in the enforcement of this law.
The civil government can become involved if the person who owns the property discovers it in someone else's possession. The suspicion of theft immediately arises. This risk is an incentive for the discoverer to return it to its owner, in order to avoid future criminal prosecution for theft. But this is a separate issue. The case law in question should be seen as a moral responsibility placed on the individual directly by God, not as a civil statute.
In all likelihood, however, the individual who finds a wandering animal owned by no known person will report this to some authority. He does not want to be found in possession of another man's beast. To insure himself from a future lawsuit, he tells someone in authority, or at least local witnesses, that he has found a wandering animal. This shared information serves as a means of lowering the costs of finding lost animals. Because of the laws governing theft, this caretaker law increases the likelihood that the finder will go to extra effort to inform the authorities of his discovery. The local civil magistrate or Levite would then serve as a lost-and-found agency. Someone whose animal had wandered off would go to someone in authority and enquire regarding any report of lost animal of a particular description.
We can presume that the animal would not be too far from home. Even though this law of mandatory caretaking was not enforceable by a civil court, it was enforceable in God's court. God's court involves sanctions, positive and negative, in history. The covenant-keeper who found a lost animal would have felt moral pressure to take it to his home. He would then have had to take care of it. This was an expense that he might not have wanted. He would therefore have had another incentive to inform the authorities or in other ways get word into the community about the stray beast.
What about the output of the animal? The finder was entitled to shear the sheep if he cared for it. He could sell the wool or use it. There is no indication in this text or any other that his expense in caring for a lost animal could not be recovered by the productivity of the animal. If it ate his grass, if he had to hire extra help in caring for it, if he put it in a barn to shelter it, and no man claimed it, then he was entitled to use it. If anything happened to it while he was working it, he would have been responsible. It was not his property. It was, in this sense, on loan to him. He could not misuse it, but he could use it.
Whenever this law was honored in Israel, an animal could not have strayed far from its owner. Sooner rather than later, an Israelite would have done his duty and taken it home. The more faithful to God's law Israel was as a nation, the sooner that someone would have taken responsibility for this lost, wandering beast. The more righteous the society was, the less distance the animal could have wandered. Widespread personal righteousness in this case meant lower search costs for the owner. This was another example of the great respect for private property in the Mosaic law.
Treasure Hidden in a Field This law seems to be contradictory to Jesus' parable of the kingdom of heaven: "Again, the kingdom of heaven is like unto treasure hid in a field; the which when a man hath found, he hideth, and for joy thereof goeth and selleth all that he hath, and buyeth that field" (Matt. 13:44). Why isn't Jesus' example a case of lost property? Why isn't the finder required to report it to the presumed owner, i.e., the owner of the field? Because the treasure had been deliberately hidden.
Jesus was challenging Old Covenant Israel to cease hiding the treasure of salvation from the gentiles.(6) The kingdom of heaven is not supposed to be hidden; it is to be shared with all the world. But someone had taken the treasure and had hidden it, He said. This was similar to the action taken by the responsibility-aversive wicked servant who refused to multiply his master's goods as a faithful steward -- another kingdom parable.
Then he which had received the one talent came and said, Lord, I knew thee that thou art an hard man, reaping where thou hast not sown, and gathering where thou hast not strawed: And I was afraid, and went and hid thy talent in the earth: lo, there thou hast that is thine. His lord answered and said unto him, Thou wicked and slothful servant, thou knewest that I reap where I sowed not, and gather where I have not strawed: Thou oughtest therefore to have put my money to the exchangers, and then at my coming I should have received mine own with usury. Take therefore the talent from him, and give it unto him which hath ten talents. For unto every one that hath shall be given, and he shall have abundance: but from him that hath not shall be taken away even that which he hath. And cast ye the unprofitable servant into outer darkness: there shall be weeping and gnashing of teeth (Matt. 25:24-30).
The person who discovers a hidden treasure is not under any obligation to inform the owner of the field of its existence. Someone had taken steps to hide the asset. The original owner had decided to invest the treasure by hiding it. This is not the best way to increase wealth except in times of warfare or widespread theft. It is better to put the asset to work. The hidden asset is not being used productively. The finder takes a great risk by selling everything he owns to make a bid on the field. The field's owner, if he knows about the treasure, may dig it up and then sell the field -- now far overpriced -- to the finder. But if the field's owner does not know about the hidden treasure, the buyer is not under any moral obligation to tell him about it. The field's buyer is reclaiming the asset from the heirs of the original treasure-hider, who know nothing about the whereabouts of the treasure and who did not hide it. They have no legal claims on this property. They are not like the owner of lost property, who does have a legal claim. The treasure in the field is not marked. It is not the responsibility of the discoverer to seek out the heirs, who may be scattered across the face of the earth, depending on how long the treasure has been hidden. The person most likely to put the hidden treasure to productive use is the treasure-finder who is willing to sell all that he has to buy the field.
The Jews had hidden God's kingdom in Jesus' era. They were hoarding it. They were not taking it in its pure form to the gentiles. They had encrusted it with layers of man-made law, thereby hiding it. This was hampering the growth of the kingdom. This is why Jesus also said: "Therefore say I unto you, The kingdom of God shall be taken from you, and given to a nation bringing forth the fruits thereof" (Matt. 21:43). Jesus was telling His listeners that they had found the hidden treasure: the kingdom of heaven. It was time for them to commit everything they owned to the spread of the good news of redemption: to gentiles as well as to Jews. The Jews refused to admit that what they had done by way of legalism and nationalism had concealed the kingdom from gentiles. Thus, the kingdom was rightfully the property of the church, which stripped the message of redemption of its legalism and then shared it with the world. It was not that the kingdom had been lost; it had been deliberately hidden and kept out of plain sight. Thus, the law of lost property did not apply in the parable.
Idle Resources and Entrepreneurship
The economic principle governing hidden treasure is what W. H. Hutt called the theory of idle resources. Hidden treasure is not idle if it is the object of human decision-making. It is invested in a particular way. When resources are deliberately not being used to produce goods and services, this may be because of the owners' lack of information about how to maximize the value of the unused asset, i.e., to make it worth more in production than it is sitting idle. Or it may be because the owner is highly risk-aversive. Hutt's economic analysis also identifies bottlenecks of information created by government policy, such as minimum wage laws or other forms of price control.(7)
When an idle resource is idle because no one recognizes it as valuable, or because the owner has forgotten where it is hidden, then the way to get it back into production is to allow a finder to buy it. This is an application of the Austrian school's theory of entrepreneurship: profit as the result of the decision of an entrepreneur who bears the economic uncertainty associated with production. He believes that he possesses better knowledge regarding future consumer demand than his competitors do. He buys a productive good at a price that is lower than it would be if all producers recognized its highest future use. If his forecast is correct, and if he puts the underpriced asset to cost-effective use, then he gains his reward: an above-average rate of return on his investment. If his forecast is incorrect, or if he misallocates the resource, then he reaps losses.
To maximize the spread of accurate information and the consumer benefits associated with this information, the free market social order allows entrepreneurs to buy fields containing "hidden treasure." These fields are in the form of scarce resources that are not priced as high as they would be if other entrepreneurs knew the truth: hidden treasures are buried in them, i.e., there are benefits that consumers will be willing to pay for. These treasures are not lost resources; rather, they are forgotten or ignored resources that are not being put to their maximum consumer-satisfying uses. In short, accurate information regarding the future is not the equivalent of a lost sheep that has wandered off and will be missed by the owner. It is the equivalent of a treasure buried and therefore taken out of production by a previous owner, and then forgotten. There is no moral reason why someone who finds a way to serve the public better through putting that treasure back into production should be required to broadcast this information to anyone. But he must not steal it; he must buy the field in which it is hidden. He must bear the costs of gaining ownership.
Conclusion The lost domesticated animal is a valuable asset. To preserve the principle of private ownership, God's law assigns responsibility to the person who finds lost property. He is to care for it until its owner appears to claim it. Because of the laws against theft, it is likely that the finder will report his discovery to someone in authority. This increases the spread of knowledge. It also tends to create a lost-and-found office in society. The person who lost his property in Israel had two likely sources of information regarding his lost property: the elders in the gate and the local Levite.
This law was neither a seed law nor a land law. There is no more reason to assume that it no longer applies in the New Covenant than it would be to assume that the same principle of caretaking does not apply to lost children. The person who finds a lost beast is no more entitled to become its owner than he is entitled to become a parent of a lost child. In the case of a lost child, the judicial incentive to report the existence of the lost child is greater. Kidnapping is a capital crime (Ex. 21:16).(8) But the same interpretive principle holds true: the finder is not allowed to become a keeper. The finder has an obligation to care for the lost beast as he would to care for a lost child. He has an analogous obligation to report his discovery, though not an equally intense obligation, given the disparity of the civil penalties for theft vs. kidnapping. This is another reason why a wandering child is unlikely to stray as far as a wandering beast.(9)
This law created incentives for owners to brand their beasts. By marking them, the owner made it more likely that the beast would be returned to him by the finder. The brand made it less likely that a finder would be able to claim that the animal was his rather than the owner's. In other words, the brand reduced the likelihood of either a permanently lost animal or a stolen animal. With the owner's mark on the animal, the owner could claim his right of ownership. This was why circumcision marked Israel. God's legal claim was on the male Israelite. The fact is, the image of God in man is God's universal claim of ownership, but the covenant mark in the Mosaic law made this ownership visible to the person so marked. God's unique claim of ownership was on an Israelite. This was the meaning of circumcision; it is also the meaning of baptism. No matter how far a "branded" covenant-keeper strays from both the protection and restraint of the institutional church, God's mark of baptism identifies him as owned by God.
Footnotes:
1. Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), p. 774.
2. Ibid., ch. 20.
3. A good example of such antinomian socialist reasoning is John Gladwin, "Centralist Economics," in Robert Clouse (ed.), Wealth and Poverty: Four Christian Views of Economics (Downers Grove, Illinois: InterVarsity Press, 1984), ch. 4. See also my response, ibid., pp. 198-203.
4. Ray R. Sutton, That You May Prosper: Dominion By Covenant (2nd ed.; Tyler, Texas: Institute for Christian Economics, 1992), ch. 2.
5. The victimized buyer would have a legal claim against the thief, but the victimized property owner has first claim: double restitution.
6. Paul wrote: "For ye, brethren, became followers of the churches of God which in Judaea are in Christ Jesus: for ye also have suffered like things of your own countrymen, even as they have of the Jews: Who both killed the Lord Jesus, and their own prophets, and have persecuted us; and they please not God, and are contrary to all men: Forbidding us to speak to the Gentiles that they might be saved, to fill up their sins alway: for the wrath is come upon them to the uttermost" (I Thess. 2:14-16; emphasis added).
7. W. H. Hutt, The Theory of Idle Resources: A Study in Definition (2nd ed.; Indianapolis: LibertyPress, 1977).
8. North, Tools of Dominion, ch. 8.
9. The main reason is a young child's inability to care for itself, unlike a beast.
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