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THE ROOFTOP RAILING LAW When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thine house, if any man fall from thence (Deut. 22:8).
The theocentric reference point of this law is man as God's image. We know this because the language of blood appears in the text. Man's blood must not be deliberately shed because man is made in God's image. When a person does something which significantly threatens the lives of others, he is to be held legally liable (Ex. 21:18-19), except in wartime or crime prevention by an officer of the law. By extension, if he builds a structure which significantly threatens the life of another person in the normal course of affairs, he is to be held legally liable for any injury suffered as a consequence. In this case, the text is concerned with the death of the victim. The language of blood points back to the law prohibiting murder in Genesis 9. "And surely your blood of your lives will I require; at the hand of every beast will I require it, and at the hand of man; at the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall his blood be shed: for in the image of God made he man" (Gen. 9:5-6).
A death caused by the absence of a railing around a roof is not accidental manslaughter, as it would have been under the law of the cities of refuge (Num. 35:9-29). It was murder. The civil penalty was the execution of the head of the household: eye for eye. The mere absence of a restraining device would automatically have condemned the householder judicially. There was no legally valid excuse. The risk of building a new house without a roof railing was high.
The language of blood places this case law under the general category of murder. Thus, this law is not strictly a land law, yet is it also not strictly a cross-boundary law, as we shall see. It is unique. Because I see this law as valid today, I use the present tense in the following analysis.
New Homes The context of the law is new construction. This law does not apply to existing houses. When the Israelites took Canaan, the Canaanites left their houses standing. Their houses became part of Israel's lawful inheritance. An Israelite who was too poor to afford to build a railing on his roof was not to be prohibited from claiming ownership of a house with an unprotected roof. Those who ventured onto the roof of such a house did so at their own risk. The owner was not to be forced to sell the house just because he could not afford to build a railing on the roof. The principle of inheritance was of greater importance than the principle of household safety.
This law balances safety with economics. If a man has the wealth to pay for building a new home, then he is not a poor man. He has capital. He is exchanging one form of capital for another. In such cases, this law announces, the builder must go to the extra expense of building a railing on his roof. The additional cost -- the marginal cost -- of building a railing is small in comparison to the total cost of building the house. For a little more money, the owner secures an added measure of safety for his family and guests. As a man of means, he owes this to them. It is not a great added expense.
What about a buyer of an existing home that has no roof railing? He can afford to build a new home or buy an existing home. He chooses to buy an existing home. The text applies to a newly built house. But why shouldn't the law apply to him? One reason might be that the added marginal expense of adding a railing reduces the profit from selling the house. The law would force the seller to pay for it, thereby reducing the profit from the sale, or else force the buyer to pay, thereby reducing the market for homes. In the case of the conquest of Canaan, the inheriting owner or his heirs would have faced reduced demand -- lower value -- for the sale of an asset which they inherited when the first owner participated in the conquest of Canaan. That is, such a legal requirement would have reduced the net worth of the original owner or his heirs. Mosaic law did not impose such a confiscation of inherited wealth on the owner or his heirs. This indicates how highly the principle of inheritance was regarded by the Mosaic law.
This law does impose costs on new home construction. A new home was not part of the original inheritance of Canaan. It was part of the fruits of life in the land. For the sake of protecting the life of man, this law mandated that new home builders pay attention to the risk of a cultural phenomenon: social gatherings on roofs. The law warned the man paying to have a home built: if you do not go to the added expense of building a protective railing around the roof, and someone falls from the roof and dies, this law designates the head of the household as a murderer. The risk of having such an event take place in one's home would have to be borne by the home owner. This added cost could be avoided by putting up a railing. The new home owner had to make his decision in terms of costs either way.
What if the home's builder decides to sell the house immediately upon its completion? This raises the question of the transfer of legal liability. If the next buyer can escape the liability because he did not personally build the house, this would subsidize the construction of homes by professional home builders who have no intention of ever occupying them. This would place a competitive disadvantage on the individual who builds his own home or who pays to have it built. The professional contractor who builds a house before he has a contract from a buyer could build it less expensively. The buyer would be buying a home that he neither had built himself nor had agreed to have built for him. This would subsidize the building of less expensive, more risky homes. This would increase the likelihood of accidents. So, the home buyer would become legally liable. He would have to pay to install a railing in order to remove this liability.
This law governed homes that were built in Israel after the conquest. The inheritance associated with the conquest was not under this law. The original inheritor and his heirs were not burdened by the costs of constructing a railing on a roof. The person who bought a home that had been built by a Canaanite was not required to build a protective railing. The principle of inheritance from Canaan was more important than the principle of safe housing.
Self-Government Under God's Law This law does not mandate the creation of a civil government bureaucracy that enforces home safety laws. It announces that the person who builds a new home must go to the expense of building a protective railing around the roof. Any home owner who fails to do this faces the ultimate penalty: execution. If someone falls from his roof and is killed, the owner must die. This law rests on self-government, not bureaucratic government. It relies on the self-interested decisions of home builders and new home buyers to defend themselves against the negative civil sanctions associated with harm. There is no indication from this law that the State is authorized to create a regulatory agency that writes safety codes that apply to home builders before they can legally offer their homes for sale. On the contrary, this law places decision-making authority in the hands of the home builder or new home buyer. It is his decision as to how much legal risk he is willing to bear. If he wishes to avoid legal risk but also avoid the expense of building a railing, he will have to keep people off his roof. He will lose the square footage that would otherwise be available for entertaining. He makes this decision.
There is a role for civil government: the enforcement of penalties after the event takes place. There is another role: announcing in advance that this penalty will be imposed. A court must convict; the State must apply sanctions after the witnesses have testified and the court has reached a decision. The State legitimately declares in advance safety standards and the penalty for violating them, but it does not compel anyone to abide by them. We are dealing here with a discrete event: one roof, one victim of a fall. We are not dealing with a phenomenon such as pollution, in which each polluter contributes a nearly immeasurable quantity of pollution, but polluters as a group create an unpleasant or dangerous environment.
The modern world is bureaucratic as no previous society ever has been, with the possible exception of ancient Egypt.(1) The government regulatory agency is a ubiquitous feature of modern political and economic life. Administrative law has steadily replaced legislative law. This constitutes a legal revolution that is undermining the Western legal tradition.(2) If this trend is not reversed, probably by some disaster that bankrupts most civil governments, it will put an end to freedom. The top-down bureaucratic social order -- Satan's model, given his lack of omniscience and his need for tight control over rebellious subordinates -- will replace the bottom-up appeals court system of biblical law (Ex. 18). The centralization of economic life will continue.
If God brings negative sanctions in history against rebellious societies, then we can expect a reversal, either through a religious transformation or an unexpected breakdown in civil government. The State will see its regulatory powers removed or drastically shrunk. The centralizing tendencies of political power will eventually be thwarted by the market or by the voters, though more probably the market.
The Spirit of Biblical Law The flat roof of the ancient Near East and the Mediterranean was a place where people would gather for celebrations. It was not the tapered roof of Northern Europe, which focuses the weight of snow in such a way that it slides off the roof rather than breaking through the roof. The tapered roof has the same effect on people as it has on snow: it increases the likelihood that people will slide off the roof. People do not gather together on a tapered roof to hold parties. Anyone who ventures onto a tapered roof knows that he is at risk. Climbing up a tapered roof is not part of the average person's normal daily activities. Anyone who goes onto a tapered roof does so at his own risk. He may fall off the roof accidentally in the sense that he does not plan to fall off the roof but knows that there he may fall if he fails to take normal precautions, such as wearing shoes with non-slip soles. He may fall even with such precautions. He knows that he is doing something abnormal. He does not fall off a tapered roof accidentally in the sense of a careless act that takes place in the normal course of events.
Any designer who puts a safety railing around a tapered roof is adding to the risk of dwelling inside. Snow would be retained by such a barrier. Instead of sliding off the roof, snow may crash through it, endangering those inside the building. Thus, this safety law governing Near Eastern roofs would be a dangerous law to enforce in, say, Scandinavia. A literal application of this law in Scandinavia would not decrease risk; it would increase risk. The biblical goal of this law is to increase personal safety. If this law were applied literally without respect for geography, it would sometimes produce the opposite result: a decrease in safety.
This leads us to a principle of interpretation: we must search for the intent of a law. It is not sufficient merely to obey it. To obey a law unquestioningly is to risk misapplying it. A biblical law must be obeyed until such time as skilled interpreters find a biblical reason to apply it in some other way for the sake of the law's intent. The spirit of the law must govern the letter of the law. This case law illustrates this hermeneutical principle better than most.
The Price of Perfect Safety A modern application of this law would impose personal liability on someone who places an abandoned refrigerator with a lock-latch in the alley behind his home without first removing the door or the latch. A child might play hide and seek by climbing into the refrigerator and shutting the door. He would suffocate to death. Such stories were familiar throughout the 1940's and 1950's. Courts did not always impose penalties on the owners, and certainly not eye-for-eye penalties. By the 1960's, such products were deemed innately unsafe by the authorities. The sale of lock-latch refrigerators was banned in the 1960's in the United States. Doors that can be pushed open from the inside were made mandatory for producers of refrigerators.
Such laws are passed primarily because judges have refused to honor the principle of holding owners personally responsible for "roofs without railings" or "uncovered pits."(3) In contrast, the Mosaic law did not require the civil government to impose fines on people who dug pits and then failed to cover them, nor did it mandate roof inspectors. It did not create an army of administrative law enforcers. Instead, it assigned individual responsibility to owners of dangerous property. The civil government let men's fear of their legal liability serve as their incentive to make their property safer.
There are economic effects of any legislation that assesses economic penalties before an accident occurs. These effects are seldom taken seriously by legislators or by the special-interest groups that lobby for such legislation. In the case of lock-latch refrigerators, the original product had definite advantages. When the door was closed, it audibly snapped shut. The new no-lock doors sometimes fail to close tightly, but users are not always alerted when this happens because of the absence of the old snap sound. These doors are less efficient than older doors in this respect. Unlatched doors are more easily left open by children, who find them more difficult to close than doors of the older design, which snapped shut easily. As a result, food rots from time to time, or at least cold air escapes, and these costs are borne by the owner.
It seems certain that a few lives are saved each year by this legislation, but there never were hundreds of cases of smothered children in any year. It was a newspaper-worthy occasional event. Millions of refrigerator owners are today subjected to the statistical risk of occasionally leaving a door open and rotting a week's food. Predictably, this cost is more difficult to bear for lower-income families, since food costs account for a higher proportion of their household budgets.
It may seem callous to compare the cost of spoiled food, no matter how much food gets spoiled, with the lives of children, no matter how few die of suffocation, but there are always inescapable costs with every desirable benefit. Legislation creates benefits; therefore, in a cursed, scarcity-bound world, it necessarily imposes costs. "Who benefits? How much? Who pays? How much?" These questions should always be asked before any piece of legislation is voted on. Guido Calabresi summarizes the range of decisions available to voters, legislators, and judges in deciding who should be made financially responsible for accidents: "The question of who should bear the costs of a particular accident, or of all accidents, is to be decided on the basis of the goals we wish accident law to accomplish." In short, the decision is politically open-ended. "Thus it is a policy question whether costs should be (1) borne by particular victims; (2) paid on a one-to-one basis by those who injure a particular victim; (3) borne by those broad categories of people who are likely to be victims; (4) paid by those broad categories of people who are likely to be injurers; (5) paid by those who in some way violate our moral codes (in some sense are at fault) according to the degree of their wrongdoing, whether or not they are involved in accidents; (6) paid by those who are in some actuarial sense most likely to violate our moral codes; (7) paid from the general coffers of the state by particular industry groups in accordance with criteria (such as wealth) that may be totally unrelated to accident involvement; (8) paid by some combination of these methods."(4) Humanism offers no simple moral, legal, or economic rule book which governs the State's decision to impose legal liability: ". . . in considering the bases of accident law, there are virtually no limits on how we can allocate or divide the costs of accidents."(5)
When society adopts a utopian legal code which proclaims "better millions of extra dollars spent by consumers on a safer product design than just one child dead from an accident," it thereby places an impossibly expensive burden on society -- the expense of seeking an impossible goal, risk-free existence.(6) Besides, legislators honor the principle of "better millions of dollars than just one . . ." only when it is cost-effective for them as politicians, that is, only when adversely affected voters will not be numerous enough, or not sufficiently well organized, to threaten them at the next election. For example, far more children are killed yearly in home fires than ever died in abandoned refrigerators. Many lives could be saved by legislating and continually enforcing the installation of smoke detectors in every home. Legislators could also require fire escape drills twice a year, with penalties on parents for violating this law. Voters today refuse to accept a level of interference in their lives by the State which the enforcement of such a fire safety law would require. So, legislators in this case ignore the principle of "better millions of dollars than just one . . ." They honor it only when comparatively few lives are threatened (e.g., asphyxiated children in abandoned refrigerators), and only a few companies need be monitored (e.g., appliance manufacturers).
A similar analysis can be made of speed limits on highways. There is no doubt that highway deaths could be reduced drastically if legislators would pass a maximum speed law of 25 miles (40 kilometers) per hour and then allocate large sums of money each year to enforce the law. The same could also be said if they would establish the death penalty for any drunk driver who kills another person in an auto accident. But the public seems unwilling to tolerate such legislation.
Conclusion The law of the roof railing applied only to houses constructed after the conquest. The law of original inheritance was superior in Mosaic Israel to the safety law of the roof. The inheritor of a home built by a Canaanite was not under the civil sanctions of this law. He who went onto a flat roof built by a Canaanite did so at his own risk. If there was no railing, he had to be extra careful. This transferred legal liability to the guests. This was a consequence of the Mosaic law's defense of original inheritance. The conquest of Canaan was Israel's original inheritance, and it was defended by law.
The railing transferred legal liability for owning post-Canaanite homes to the owners. The owner of such a home had to consider the risk of hosting a party on his roof. If he failed to build a railing, he would lose his life in the case of a fatal fall by another person. This law therefore provided an incentive to owners to have documentation regarding original ownership. If he could not prove that his home was built before the conquest, he became legally liable. A detailed record-keeping system was not mandated by this law, but it was surely encouraged.
This law was not intended to create an administrative bureaucracy of building inspectors. It was not a system of government licensing. It transferred legal liability to owners. In this sense, it reinforced the authority of the court system at the expense of the regulatory administrative law system. This indicates the presence in Mosaic legal order of an impulse hostile to administrative law.
This law may make no sense in a different environment, such as tapered roofs or thatched roofs. It applies only to a society that has flat roofs. This law teaches us that we must consider the judicial and moral principles undergirding a particular law. In this case, the primary principle was the inviolability of Israel's original inheritance; the secondary principle was cost-effective safety in a high-risk environment. The primary principle disappeared with the disappearance of the original housing. The secondary principle remains. This was a unique law: partially a land law -- original inheritance -- and partially a cross-boundary law. Once the original housing wore out, it remained a cross-boundary law, but of a peculiar kind: one which could not be applied literally in every weather environment and still maintain its goal, i.e., home safety.
Footnotes:
1. "Max Weber on Bureaucratization" (1909), in J. P. Meyer, Max Weber and German Politics: A Study in Political Sociology (London: Faber & Faber, [1943] 1956), p. 127.
2. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Massachusetts: Harvard University Press, 1983), pp. 34-41.
3. Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), ch. 12.
4. Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (New Haven, Connecticut: Yale University Press, 1970), p. 22.
5. Ibid., p. 23.
6. Mary Douglas and Aaron Wildavsky, Risk and Culture: An Essay on the Selection of Technological and Environmental Dangers (Berkeley: University of California Press, 1982).
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