Update: 4/13/20
If a man grazes his livestock in a field or vineyard and lets his animal loose, and it grazes in another man's field, he must make restitution from the best of his own field and from the best of his own vineyard. If a fire breaks out and spreads in thorns so that stacked grain, or standing grain, or a field is consumed, the one who started the fire must surely make restitution (Exodus 22:5–6).The Lord spoke to Moses and to Aaron, saying, “When anyone has on the skin of his body a swelling or scab or a bright spot, and it becomes infected and there is a skin disease in his body, then he must be brought to Aaron the high priest, or to one of his sons the priests. Then the priest will examine the disease in the skin of his body. . . . The priest will examine him to see if the rash has spread farther in the skin. If it has spread, then the priest must pronounce him unclean. It is an infectious disease’ (Leviticus 13:1–3a, 8).
We see in these passages the unmistakable truth: civil government has responsibilities in the area of boundaries. In the case of the animal that strays across the property boundary to a neighbor’s property, or in the case of a fire which spreads across a property boundary into a neighbor’s property, there must be restitution paid to the neighbor. The state has a responsibility to assess what this restitution is, and then to make certain that the owner of the invasive animal or fire pays this restitution to the victim. This principle is the basis of pollution control laws, as we shall see.
Then there is the issue of an infectious disease. The disease described as leprosy in Leviticus was a judicial disease. It is not the same disease as Hansen’s disease. Therefore, the priests made the determination as to whether the disease had become infectious. When the priests made this determination, they declared that an infectious house had to be knocked down. They also declared that an infectious person had to be placed under quarantine. The state had to enforce these decisions. The laws associated with quarantine for leprosy constitute the longest passage in the Old Testament regarding a specific law: two chapters.
Because fire spreads across legal boundaries, the state has a legitimate role in containing the spread of fire. Fire is comparable to an invading army. It places property and lives at risk. It does not honor borders. Societies throughout history have recognized this function of the state. One of the universal services provided by the state is fire control. These are usually provided on a local basis. Cities and counties establish fire departments.
Fire spreads through sparks thrown off by combustible materials. Containing a fire requires that firemen reduce the spread of the fire to combustible materials. This means that fire departments spray water and fire-retarding chemicals on private property. This is usually a benefit to the owners of the property. Their property is less likely to be destroyed by the oncoming fire. Both political theory and legal theory recognize that this benefit must be paid for. The person who refuses to pay in advance for protection from fire is a beneficiary, once a fire breaks out. He is what economists call a free rider. His home is going to be protected by the fire department as part of a fire-abatement plan. If he can legally avoid paying for this service, he may choose to do so. In a community in which individual property owners are not required to pay for fire protection, the total community will spend less on fire protection then it should spend, given the risk of the destructive power of fire. So, both political theory and legal theory agree on the legitimacy of imposing compulsory taxes and fire codes on communities. In this way, individuals who live in communities are able to gain greater protection from fire than would be the case if fire protection were left to the free market.
There is another aspect of fire abatement that is not widely discussed in economics textbooks. This is the authority of the fire department to destroy property that is likely to be burned up after a fire has begun. The fire department does this in order to contain the fire. If the fire department determines that a house or a group of houses in the neighborhood will be reached by the fire, and, by knocking down the buildings, the fire department can restrain the spread of the fire, the department will knock down the buildings. Courts have determined that fire departments are not legally liable for the losses imposed by this process. This strategy of fire abatement is not much used in the modern world, but it has been in the past. The assumption is that the buildings would have been consumed by the fire anyway, but, by knocking down the buildings, the state may restrict the spread of the fire. The fire would have imposed the loss, so the state determines in advance that it is not responsible for the losses imposed by knocking down the structures. The thinking is this: if the fire department hesitates for fear of losses associated with knocking down the property, the fire may spread to the rest of the community. A better solution to this from the point of view of liberty is to require either the fire department or the local government to purchase insurance that would cover such violations of property rights.
Fire codes that restrict the construction of facilities in advance are comparable to safety regulations of all kinds. The biblical judicial principle is that owners of property are legally responsible for injuries to non-owners who are invited into these properties. For example, someone who invites guests onto a flat roof that can be used for entertaining people are responsible for building a barrier around the edges of the roof. This is the judicial principle of strict liability. I discuss this in my comments on Deuteronomy 22:8, which appear in Chapter 54 of Inheritance and Dominion: “The Rooftop Railing law.” The same legal principle applies to barriers around pits into which children or animals may fall into. Owners are held legally responsible by the courts for injury or even death. In order to protect themselves against court decisions against them, they are told to provide protective barriers. I discuss this in my comments on Exodus 21:33–34: “The Uncovered Pit.” This appears in Chapter 41 of Authority and Dominion. But retroactive strict liability is not the same as a building code that prohibits the construction of facilities. Owners are not told in advance that they must provide the barriers; they are merely warned in advance that, if they do not provide the barriers, and somebody is injured, they will be held legally responsible. By extension, fire codes governing the protection of non-owners inside a building can legitimately announce in advance which kinds of liability will be imposed on property owners if damages result because of the absence of the protective measures. But the state is not given the authority to restrict the construction of such facilities.
In Volume 3 of Authority and Dominion, Chapter 44 is devoted to pollution, ownership, and responsibility. It is a long chapter: 69 pages. In that chapter, I discussed 34 different economic issues that are associated with the question of pollution. I do not summarize all of them here. I mention the first five as examples: (1) how to assess true costs and benefits, (2) overusing “free” resources, (3) private property vs. disputes, (4) fire as pollution, (5) damage and restitution. There are many more examples.
I begin here with the case of the wandering animal. It wanders from its property and invades another man’s field. It eats grain. The owner of the beast owes the victimized neighbor the equivalent of whatever has been destroyed. He must not short-change the victim; he must pay from the best of his field. The legal principle is that the injured party is entitled to the replacement of his damaged goods by the best of the responsible party’s possessions. What is the theocentric principle that this legal principle reflects? This: God, in imposing an appropriate restitution payment from rebellious mankind, is entitled to the best that man has to offer. This is why no one was allowed under the Mosaic law to bring to God’s sacrificial altar any injured or blemished animal (Leviticus 1:10).
1. Victim’s Rights
We see here an application of the general biblical judicial principle of victim’s rights. The owner is presumed to have the best information about his own property. He is therefore responsible for his property. This is the biblical principle that links private ownership with personal responsibility. This is the great advantage of the free market in comparison with all other systems of property management. What we have here is a boundary violation. The owner should have restrained his beast. Maybe he should have used a rope. Maybe he should have put up a fence. But it is his beast, and he is responsible for it.
The judicial issue is boundaries. There must be an agency of adjudication that settles matters of boundary violations between private owners. That agency is civil government. No society can operate without such an agency. There must be judges who have the authority to declare who is responsible. The society must have executive institutions related to the police function in order to make certain that the guilty party pays restitution to the innocent party.
As the Mosaic law says, the same principle applies to the kindling of a fire. If a fire gets out of control and destroys another person’s property, the person who started the fire is responsible. This is why the old legal principle, developed early in the extension of railroads, was correct. The railroads are responsible for fires that the sparks from the smokestacks started. This is why the most influential of all economics articles, R. H. Coase’s “The Problem of Social Cost” (1960), is categorically wrong economically, judicially, and morally. He said that the railroad is not automatically liable. The judges must determine must who is responsible. If they decide (how?) that it is better for society to have greater output of crops, then the railroad company is responsible. On the other hand, if the judges determine (how?) that the social value of the transportation by rail is greater than the social value of the crops, then the railroad company owns the farmer nothing. This perspective is an explicit violation of biblical law. I wrote a book about this: The Coase Theorem (1992). I wrote a long appendix on this in Authority and Dominion: “The Problem of Social Cost.” You can consult either document.
2. Moving Fluids
The fundamental problem with pollution, from an economic analysis point of view, is this: fluids do not respect private property boundaries. There are two types of fluids: liquids and gases. Both of them can pollute a neighbor’s property and his health. Factories can discharge pollutants into moving streams. This imposes costs on people who live downstream. They are victims of the pollution. Similarly, factories can pollute the atmosphere through smokestacks. The victims need to be compensated. But how?
The problem is this: the cost of trying each case in a court is usually excessive from the point of view of the victims. A victim cannot claim exactly so much money in terms of damages. Furthermore, the courts would get clogged with endless disputes regarding polluted water. This is even more true with respect to air pollution. The major pollution device in the second half of the twentieth century was the automobile. The internal combustion engine produces polluting gases. There was no way to identify which polluting vehicle was the cause. There was no way for victims who breathed polluted air to identify which vehicle was responsible. So, the only way for the state to reduce the level of pollution, in response to the demands of voters, was to require emission controls on internal combustion engines. These rules in principle are biblical.
At some point, new technologies will reduce the level of automobile omissions. There is great hope that cars will soon be electric. But then the question will arise regarding the source of the power to generate electricity. Is it coal? Is it oil? Is it solar? Is it nuclear? No one knows at this point. Someday, people will know. Then this will not be a major issue.
If the state can identify a particular source of pollution, it can create negative sanctions to reduce this pollution. Economists debate regarding the most cost-effective form of sanctions. These are technical questions which are and not issues of economic theory. What is an issue of economic theory is this: without the state to determine the proper level of pollution, in response to voters standards, there will be excessive pollution. Victims will not be able to defend themselves. Victims may be tempted in some cases to resort to violence against a polluter if the state does not first intervene. This would not be true in the case of violence against automobile owners or buses, but it certainly might be the case with factories that spew pollutants into the atmosphere.
The fundamental economic issue of moving fluids is this: no one owns them. In the case of automobile pollution, there is no way to assess damages or for victims to collect restitution. Therefore, there has to be regulatory intervention to prevent the violence before it happens. This is a matter of property rights. The problem is this: with moving fluids, establishing property rights, thereby establishing responsibility, is difficult in the case of decentralized sources.
A major source of regional water pollution is urine excreted by cattle. There is no single source of the pollution. The pollution is carried by underground water sources into rivers and lakes. This is a legitimate technical issue. The state must intervene in order to administer a technical solution that is acceptable to the general public. The property rights of cattlemen need to be honored to some extent, but the property rights of victims of polluted water need to be settled. This settlement cannot be done on the basis of the free-market principle of high bid wins. It certainly should not be settled on the basis of high bid wins among judges, because that is the issue of bribery.
3. Zero Pollution
The question of pollution, ultimately, is a question of stewardship, meaning personal responsibility. The Bible affirms that each man is responsible for his actions. No man is to pass along the costs of his activities to his neighbor, apart from the latter’s consent. Where there is ownership (legitimate delegated sovereignty), there must also be responsibility.
Perfect justice in this regard is impossible, and any attempt to create a completely pollution-free environment is doomed to failure. Furthermore, it is not possible to assess the full costs of pollution, since estimating costs necessarily requires men to make interpersonal comparisons of subjective utility, and such comparisons can be made only imperfectly. Arbitrary estimates must be made by judges, arbitration committees, or administrative bureaucracies in charge of pollution-control programs. These will not be “scientific” estimates, for such measurable estimates cannot be made in economics. Perfection here cannot be achieved at any cost.
Citizens must use self-discipline in their quest for a better world. If every citizen is forever suing his neighbor for each perceived infringement on his environmental lifestyle, society will perish. This is the great danger of class-action suits by one person in the name of an unspecified number of others in a supposed “class” of victims. Each person can sue a company, which may be operating within the law, thereby imposing endless legal fees on the firm. This could tie up a firm’s legitimate operations. Such suits could be brought by anyone for almost any perceived infraction: automobile safety, national defense, and on and on. Those who bring class-action suits that are determined by a jury to constitute unwarranted harassment of a business must be put at risk for their actions. Everyone must become responsible for his actions, not just producers.
Ours is not a perfect world, and any attempt to impose perfect standards on it, without acknowledging the limits imposed by scarcity, and therefore the costs involved, is demonic. The whole community will be harmed. Any civil government that attempts to reduce pollution to any-where near zero is messianic. The results of a quest for zero pollution will be similar to the results of a quest for perfect justice: bankruptcy of the treasury, bankruptcy of producers, judicial arbitrariness, and an increasing number of economic disruptions.
4. Future-orientation
The question of resource conservation is intimately tied to the question of time perspective. When we ask ourselves questions concerning resource conservation, we are asking questions regarding conservation for future consumption. The debate over ecology has been dominated by people who believe (or say they believe) that the civil government has the most responsible view of the future. They do not raise the obvious question: “What motivates the individuals who control the various agencies of civil government?”
Free market economists stress the long-range motivations of those who own property. When a person sells an asset, he is capitalizing in the present the expected future net productivity of that asset. The individual who can sell an asset owns it. The government bureaucrat cannot legally sell it and pocket the money, so he does not own it. Thus, his motivation is to use the asset in such a way that his income or prestige is increased. He is not paid to represent future generations of users. In contrast, a private owner is paid to represent those living in the future, for an asset’s present price depends heavily on the expected stream of net income it will generate over time.
This is why ownership is important in allocating pollution. Long-term regulation by the government is always a threat to efficient management. There has to be clear-cut evidence that one man’s use of his own property causes physical damage to a neighbor’s property. This was what the Bible made clear in its twin laws against unrestrained beasts and unrestrained fire.
I used the example of the Mosaic law governing the disease called leprosy. As in the case of pollution, this is an issue of boundaries. In this case, germs, viruses, and other forms of invisible creatures cross boundaries. They can inflict enormous damage on large numbers of people. It is not possible to prevent the damage from spreading without quarantining people or else eliminating the microscopic infectious carriers of sickness and death.
This is a technical question. It involves science, and there are disputes among scientists regarding cause-and-effect. Nevertheless, judges have to come to some kind of decision. So do politicians. The laws of quarantine are as old as civilization. People recognized early that other people were sources of sickness. The question is how to separate these sick people from the general society. If this is not possible, then the question arises: “How can the government kill the bugs that carry the diseases?” Either the state quarantines the human carrier or it kills the bugs that the sick person carries.
1. Insect Abatement
The most obvious example of killing the bugs in the twentieth century was the use of the chemical known as DDT. It killed mosquitoes. More than any other bugs in history, mosquitoes have been the great enemies of mankind. They carry smaller bugs that can make people sick or kill them. DDT was the greatest enemy of mosquitoes in history. It was outlawed in the final third of the century, and the results were devastating in certain regions. Because of a book written by an amateur scientist, Rachel Carson, Silent Spring (1962), the ecology movement was able to persuade dozens of nations to ban the use of DDT, beginning in 1972. Western governments pressured foreign governments to ban DDT on pain of losing trade deals with the West. In 2017, Dr Paul Offit described what happened next. “In India, between 1952 and 1962, DDT caused a decrease in annual malaria cases from 100 million to 60,000. By the late 1970s, no longer able to use DDT, the number of cases increased to 6 million. In Sri Lanka, before the use of DDT, 2.8 million people suffered from malaria. When the spraying stopped, only 17 people suffered from the disease. Then, no longer able to use DDT, Sri Lanka suffered a massive malaria epidemic: 1.5 million people were infected by the parasite.”
Who should pay for mosquito abatement programs? Individuals cannot mobilize the whole community, one by one. It takes something analogous to military mobilization to eliminate mosquitoes. Without DDT, this is even more difficult. Around the world, all societies that are at war with mosquitoes have adopted government-funded mosquito abatement programs. Usually, these are funded locally. This is reasonable because mosquito infestations are not uniform. Certain regions suffer from pollution more than others. Therefore, the residents in those regions should pay the bulk of the expenses in developing and implementing local mosquito abatement programs.
Public health programs require a systematic use of chemical spraying to kill a sufficient number of disease-carrying insects. These programs have to be well organized. They really are the equivalent of military defense programs. Both in terms of economic theory and scientific strategies, they must be run the way a military hierarchy is run: top-down.
2. Quarantine
The idea of quarantine in the 13th chapter of Leviticus is based on the need to protect the public. The spread of the disease was to be halted by removing the afflicted individual from within the city. The concern was public health, but it was not a concern about biological contagion. It was concern about the willingness of God to afflict other individuals with the disease or other afflictions because of their unwillingness to enforce His law. Thus, the quarantining process of Leviticus 13 was primarily judicial. In fact, it would probably be safe to say that it was entirely judicial. Only by the extension of the principle of public protection within the city is it legitimate to classify today’s diseases as being subject legally to the Bible’s quarantining process.
Does this qualification alter the legal status of the civil government? For example, does this mean that in modern times the civil government is required to finance an individual who has been quarantined? The state has brought sanctions against him in the name of the health of the community. This was also the case in Mosaic Israel. The state has put him under quarantine because he is biologically contagious. This was not the case in the Mosaic Israel. Does the shift from judicial affliction to biological affliction change the legal requirements of the civil government? Does the change from the contagious legal status of the individual to his contagious biological status change the requirements of the civil government? In other words, do the quarantine laws of the civil government go through a fundamental transformation between the Old Covenant and the New Covenant?
It is part of Anglo-American common law that when a city is on fire, the authorities have the right to knock down an individual’s house in order to stop the spread of the fire. It is also part of common law that the city and the community do not owe anything to the individual who has had his house knocked down in this way. It is presumed that the fire would have destroyed the house anyway. It is also assumed that by destroying the individual’s house, other houses within the community will be protected. This law was for generations basic to the protection of cities. If the fire-fighters had to worry about the cost of repayment each time they knocked down a house, it is unlikely that they would have had the same kind of incentive to knock down the houses. If the price of an action goes up, less of it will be demanded. In this case, it means that the city would have been less likely to be protected from the “plague” of fire because of legal obligations to repay those people who were unfortunate enough to be caught in the line of fire, and whose houses, if knocked down, would have allowed the creation of a fire break. It was assumed that the safety of the city was of greater importance than the loss to the individual. Because the house probably would have burned down anyway, it really was not a net loss to the owner.
Consider a contemporary individual who has contracted a contagious disease. He has become a threat to the community. If the community is required by law to finance this individual until such time as he recovers biologically from the disease, it is less likely that the community will take the necessary steps to isolate him. Common law therefore does not require the civil government to compensate the quarantined individual. Neither does biblical law. This is why quarantine is a devastating event in the life of the individual. Historically, quarantined people have not been permitted to leave their homes. Others have not been able to come into those homes without falling under the ban. While it is assumed that charity will be forthcoming to help the quarantined individual in his time of need, it has been assumed until very recently that the state has no legal obligation to support that person economically during the period of his confinement. To do so would raise the cost of confining individuals, and it would therefore lead to an unwillingness on the part of public health officials to confine them. This would increase the risk of contagion and disease in the community.
Because there was no command in the Old Testament that the state support quarantined individuals, it is not possible to derive from this law any biblical injunction for state welfare programs. The only legitimate conclusion to draw from this law by analogy is that there is no legitimate state welfare function. The job of the civil government is to protect people from violence, not support people who have been afflicted, either naturally or judicially. To argue any other way is to make the state into an agency of healing rather than an agency of protection. The state is an agency that is supposed to bring negative sanctions against evil-doers. There is no biblical warrant for the concept of the state as a healer. The job of the state is to prohibit behavior that threatens other individuals physically. If this threatening behavior is breathing upon others, then the state must see to it that the individuals who are a threat to others are not put into close contact with those who might be injured as a result.
The victim of leprosy during the Mosaic Covenant was forced out of his home by the state, and was made to wander outside the city. The state was not responsible for his financial support. Conclusion: the case for modern socialized medicine cannot be based on any biblical text. It must be based on the argument from silence. It must be based on the conclusion that there has been a fundamental change in the function of civil government in the New Testament: from protector (Old Covenant) to healer. We have yet to see the exegetical case for such a change. While the presuppositions of the modern political order favor such a view of the state—as did the presuppositions of the ancient pagan world—humanist presuppositions are not a valid substitute for biblical exegesis.
Civil government has responsibilities in the area of adjudicating disputes across boundaries of private property. But when these disputes cannot be settled because of moving fluids, the civil government must step in and establish regulatory standards that will reduce the degree to which of victims of pollution are damaged. The quest for a pollution-free world is messianic, but communities can decide politically if certain forms of pollution are unacceptable to them. This is a matter for local civil government.
There has to be a system of government regulation, up to and including quarantine, in order to stop the spread of dangerous pathogens. These should be regarded as invaders. If a society has the right to create a military defense system against invading armies, then it has the right to do the same with respect to invading armies of pathogens. Only the civil government can do this. This cannot be done on a profit-seeking basis. This is not a matter for the free market to solve. The free market can solve certain issues, such as the development of anti-pathogen chemicals or techniques. There can be profit in this. But the taxpayer is going to have to provide the money that civil governments use to develop systematic pathogen defense strategies, and then implement these strategies.
In terms of the total cost of government, these are minor expenditures. Societies have used them throughout history. Most people accept them. There is no well-organized opposition to their use. Compared to the massive expenditures of the modern state on projects that are clearly banned by the Bible, these exceptions do not constitute a threat to the freedom of covenant-keeping people. Furthermore, those free market economists who would deny any of these expenditures have not developed comprehensive monographs on how the free market could attain these goals. They are legitimate goals. Free-market economists need to come to grips with this fact: they cannot beat something with nothing.
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