NATURE'S ROOTS AND FRUITS If a bird's nest chance to be before thee in the way in any tree, or on the ground, whether they be young ones, or eggs, and the dam sitting upon the young, or upon the eggs, thou shalt not take the dam with the young: But thou shalt in any wise let the dam go, and take the young to thee; that it may be well with thee, and that thou mayest prolong thy days (Deut. 22:6-7).
The theocentric aspect of this law is the creation. God rules over nature because He created the universe. This law is clearly an aspect of the dominion covenant which God established with mankind. It is not a seed law or a land law. God gave to Adam and Eve the responsibility of ruling over the creation. "And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth" (Gen. 1:26). God recapitulated this covenant with Noah and his sons (Gen. 9:1-3).(1)
Because this is a covenant under God, there is hierarchy. The hierarchy of the dominion covenant is this: God > man > woman > minor children > nature. Because it is a covenant, there are sanctions attached. This law announces a personal blessing for obedience: long life. The blessing itself points to point five of the biblical covenant model: continuity, i.e., greater time on earth in order to extend one's dominion over nature. The positive sanction, long life, is an aspect of inheritance: building up the capital base that a man leaves to his children.
Man's dominion over nature extends God's grace to the creation. This grace is governed by God's law. The principle undergirding this Mosaic case law is that the productivity of nature must be preserved by man. The individual who finds a mother bird is allowed to claim her offspring as his lawful possession, but he must set free the mother. The mother is an instrument of productivity. She has reached adulthood. She has survived nature's challenges to youth. Animals that were farther up the food chain did not catch her. Also, she did not starve. Because this animal is a skilled survivor, she is worth more as a productive asset than the newborns are. Man can do what he wishes with the newborn, but he must let the adult go free to reproduce again. In this we can see a pattern for man-directed ecology in general. That which is a source of wealth for man in unowned nature is to be allowed to continue to be productive.
Preserving Nature's Organic Productivity The setting of this case law is not organized agriculture. A man comes across a bird's nest. The bird has built it where it decided, not where man decided. The Hebrew word translated "by chance" refers to an encounter. It is frequently translated "befall." A man has come upon the nest. This discovery was unplanned by the man. The bird was operating under the laws of unplanned nature. This is not a chicken farm.
This law secures life for the mother because of the presence of the offspring. A man may lawfully claim an isolated female bird for his own. If it is not immediately caring for its young, it is "fair game." But what about mammals? The principle of this law is that a female with offspring under her immediate care, and therefore dependent for survival on her care, must be set free. Modern hunting laws that protect female deer are extensions of the principle that mothers caring for their young are off-limits to hunters. Because hunters cannot be sure if a female is caring for her young, they may not shoot any adult female. But if the hunting laws also protect the young, they are in violation of this case law. Biblically, the offspring are fair game.(2)
This law protects a productive female while she is caring for her young. Her productivity in bringing offspring into the world and caring for them must be honored. This case law protects her life. It does not do so for the sake of the existing offspring, which may be lawfully harvested by the discoverer. My conclusion is that it does so for the sake of future offspring. A demonstrably productive asset in nature must be allowed to continue its productivity. This interpretation is consistent with the law of fruit-bearing trees during a siege: the invading army may eat the fruit of nearby trees, but not cut them down (Deut. 20:19). Orchards planted by the enemy were treated as if they had grown on their own. They had not been planted by the invading Israelites; they were therefore to be left standing.
The Tragedy of the Commons This law governs animals found in the wild. There is no comparable law governing domesticated animals. The owner of a farm is in charge of breeding his animals. He feeds them, shelters them, and cares for them directly. They are not survivors in the wild; they are survivors in a sheltered environment. In this setting, the owner is not under any restriction regarding mothers and offspring. He may lawfully kill the mother and eat her eggs. But will he? Probably not. After all, the mother is his property. She may not lay golden eggs, but she does lay consumable, marketable eggs. She is a capital asset that produces a stream of income. She is a proven producer. The owner probably will not kill her.
Nevertheless, this female may be growing less fertile. The owner may decide that she is now fit for eating. After he collects her eggs, he is entitled to wring her neck. This is not an animal that survives in the competitive environment of nature. It is an owned resource. The owner has authority over it.
The differentiating mark is ownership. Animals found in the wild are unowned. In such cases, these animals may become victims of annihilation by non-owners who see them as free resources. When men find themselves in control of a free resource, they tend to overconsume it. They do not bear the costs of ownership, yet they can reap the benefits of ownership. The high benefit-cost ratio encourages them to consume the resource. After all, they are not able to collect an income stream from an animal which they encounter in a field. It is a "now or never" situation. They can now gain the benefits of owning the asset. If they wait, they will be unlikely to appropriate this particular fruit of nature. Thus, there is an economic incentive to "overharvest" the resource. They will kill the mother and take the eggs.
This result is sometimes called the tragedy of the commons.(3) No one owns the wild. No one owns this particular family of animals. The costs of production are almost nonexistent to the harvester; the benefits of harvesting are high. So, he takes all of the resource. This leads to overuse of the asset: overgrazing, overpolluting, or over-whatever. Ownership provides an economic disincentive against immediate consumption. But ownership of a long-term capital asset does not exist in nature. Thus, unowned, ungoverned nature must be protected by civil law. Men, in their legal capacity as God's corporate agents over nature, must place legal restraints on the misuse of temporarily unowned nature.(4) This is for the benefit of nature and also for the benefit of men in the future, who will be able to harvest nature's bounty. Those animals that are under mankind's covenantal authority are to be protected against the otherwise rational economic decision by a non-owning individual to overconsume nature's resources.
Because this law authorizes the discoverer to harvest the offspring, it clearly recognizes man's legal authority over nature. The fruits of nature -- in this case, the offspring -- are fair game for man. Man is not to be kept completely out of unowned nature for the sake of nature. Unowned nature is a challenge to man's lawful dominion over nature. It testifies to the incomplete dominion of man in history.(5) Nature under the autonomous dominion of beasts is so repulsive to God that He allowed Canaanites to remain in the land until the Israelites could either exterminate them or drive them out. "I will not drive them out from before thee in one year; lest the land become desolate, and the beast of the field multiply against thee" (Ex. 23:29). For instance, the idea that a jungle is to be preserved for the jungle's sake is an anti-biblical idea. The man-killing insects of a jungle are to be treated by man with no more leniency than a plague-carrying mosquito is, unless there is some clear ecological benefit to mankind by sparing the killer.(6)
This law places restraints on the tragedy of the commons. Nature's raw productivity is to be preserved by civil law until such time as man can domesticate nature. Man subdues nature through private ownership. When land is privately owned, when animals are penned in, and when man provides a protective environment for the animals under his authority, then this law ceases to have any relevance. When the commons -- commonly owned land or unowned land -- disappears, so does the related tragedy of overconsumption. While it is incorrect to argue that "the only good rain forest is a dead rain forest,"(7) it is biblically correct to say that the best rain forest is a privately owned rain forest. While a privately owned rain forest can become the victim of inappropriate ecological management, this is also true of a politically owned rain forest. (By the way, "rain forest" is a term that usually refers to a jungle, a far less compelling word rhetorically in public policy debates.) But there is this difference: private owners have greater personal economic incentives to preserve the productivity of an asset, as determined by consumers' use of the asset, than a government's salaried managers have. Also, by decentralizing ownership, the free market social order increases the likelihood that an ecological mistake will not be imposed on all of nature at the same time, which is not the case when a centralized civil government exercises direct control over the property.(8) In short, fewer commons mean fewer and less wasteful tragedies.
Conclusion The fruits of nature belong to man. This biblical principle undergirds this case law: the offspring can lawfully be harvested by the finder. But the roots of presently unowned nature belong to God. His delegated intermediary is nature itself until men establish direct ownership over tracts of nature and begin to manage them. Until then, God exercises His control over the mother hen through the operations of nature. God demonstrates His ownership by placing legal restrictions on the use of nature's capital assets. This is why the mother hen must be set free, to breed another day. Man is not to overharvest unowned, unmanaged nature. Because man is not providing the scarce means of sustaining life for nature's wild animals, he is not to be given free reign over both the roots and fruits of nature. Unless he extends a full-time system of management over nature, including the care and feeding of mother hens and their species equivalents, he is not allowed to take both the mother and her offspring in the same harvesting operation. God has placed another "no trespassing" sign around His property.
It is obvious why the State cannot easily enforce this law of the unplanned encounter: it possesses insufficient information regarding any infractions. The State's negative sanctions cannot easily be applied to those who break this law. Thus, God has attached a positive sanction to this law, one which applies to the individual. He who honors this law will receive long life. The individual reaps this reward because he is the primary locus of sovereignty for this law's enforcement. He has exclusive information regarding his encounter; he therefore is the recipient of the blessing of obedience.
This is neither a seed law nor a land law. It is a cross-boundary law. In fact, it is precisely because nature has no internal ownership boundaries that this law must be enforced: primarily by the individual; secondarily by State anti-poaching laws.
Footnotes:
1. There are extreme pietist Bible commentators who argue that the dominion covenant made with Adam was pre-Fall and does not apply to history. For example, the then-tiny and now much smaller premillennial fundamentalist denomination, the Bible Presbyterian Church, declared in 1970 that the cultural mandate (the Dutch Reformed version of the dominion covenant) has no authority in history, but is exclusively pre-Fall and post-resurrection. Genesis 1:26-28 and Genesis 9 have nothing to do with culture, the denomination insisted; the command applies only to biological reproduction. Genesis 9 does not use the words "and subdue it," and therefore the passage has nothing to do with culture in history. The idea of the cultural mandate "cuts the nerve of true missionary work and of evangelism." For the complete document and its refutation, see R. J. Rushdoony, The Institutes of Biblical Law (Nutley, New Jersey: Craig Press, 1973), pp. 723-30. For pietists, true missionary work and evangelism apply only to individual souls, denominational reform (i.e., separatism's church splits), and Christian families. For a refutation of this view, see Kenneth L. Gentry, Jr., The Greatness of the Great Commission: The Christian Enterprise in a Fallen World (Tyler, Texas: Institute for Christian Economics, 1990).
2. It is considered "unsporting" to shoot immature deer. The problem here is that civil laws should not be enacted which go beyond the meaning and intent of biblical law. The boundaries protecting young animals in the wild should not be civil.
3. Garrett Hardin, "The Tragedy of the Commons," Science (Dec. 13, 1968); reprinted in Garrett de Bell (ed.), The Environmental Handbook (New York: Ballentine, 1970). For a critique, see C. R. Batten, "The Tragedy of the Commons," The Freeman (Oct. 1970). Cf. Gary North, The Dominion Covenant: Genesis (2nd ed.; Tyler, Texas: Institute for Christian Economics, 1987), pp. 208-10.
4. This means that nature is not to remain unowned. Also, it does not mean that nature should be owned by the State. The biblical case for State ownership must be made in terms of the principle of hierarchical responsibility. The defender of State ownership must show from the Bible either that the State has been authorized by God to serve as His dominion agent or that inherent in the arrangement are conditions that mandate bureaucratic administration. The judicial issue is God's hierarchy of ownership, not some theory of nature's rights. Nature has no rights. The idea that nature has rights independent of man as God's dominion agent is pagan to the core. Nature has no rights, in the same sense that property has no rights. It is ironic that environmentalists who decry property rights also cry for nature's rights.
5. This includes the oceans. The problem with oceans is that they are unowned. They are part of the commons. The result is an overharvesting of some species.
6. If burning down a forest or a jungle creates an environment in which mosquitoes multiply, and if society is unwilling or too poor to allow the use of chemicals such as DDT, then leaving the forest or jungle standing may be the best ecological policy. The mosquito historically has been man's greatest enemy in nature. Man's seeming victory over malaria-carrying mosquitoes by the mid-1960's has been rolled back since then. Gordon Harrison, Mosquitoes, Malaria and Man: A History of the Hostilities Since 1880 (New York: Dutton, 1978).
7. Conservative John Podhoretz claims that this phrase is the only one that gets a strong negative reaction from liberals at a Washington, D.C. cocktail party these days, so de-sensitized have liberals become to conservative rhetoric.
8. An example of such mismanagement is the U.S. Forest Service's policy, which accelerated in the 1960's, of fighting small forest fires on Federally owned land: over 190 million acres. This policy has led to the extensive growth of underbrush and small trees, and the build-up of dead branches. This is now tinder for huge, uncontrollable forest fires that sweep through hundreds of thousands of acres at a time. The big trees perish in these huge fires. Over 6 million acres burned in the first ten months of 1996, the worst fire season since 1952, when 6.7 million acres burned. James Brooke, "Western Wildfires Near Record Season," New York Times (Oct. 24, 1996). The government's policy of fire suppression had been in operation since the 1920's. Now the government's forest managers have decided to reverse this policy. Forest managers will start deliberate fires to reduce this underbrush, hoping that these deliberately set fires do not become uncontrollable fires. Federal land managers estimate that this policy will take two or three decades to become successful. They say that fire seasons will become worse over the next two decades, until the controlled-burn program reduces the underbrush. What is interesting is that the Chief of the U.S. Forest Service, who has inaugurated this controlled-burn policy, is the first wildlife biologist ever to be appointed to this top management position. Frank Whitmore, "When Forest Fires Help," Parade Magazine (Sept. 22, 1996).
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