21 If someone is found slain, lying in a field in the land the Lord your God is giving you to possess, and it is not known who the killer was, 2 your elders and judges shall go out and measure the distance from the body to the neighboring towns. 3 Then the elders of the town nearest the body shall take a heifer that has never been worked and has never worn a yoke 4 and lead it down to a valley that has not been plowed or planted and where there is a flowing stream. There in the valley they are to break the heifer’s neck. 5 The Levitical priests shall step forward, for the Lord your God has chosen them to minister and to pronounce blessings in the name of the Lord and to decide all cases of dispute and assault. 6 Then all the elders of the town nearest the body shall wash their hands over the heifer whose neck was broken in the valley, 7 and they shall declare: “Our hands did not shed this blood, nor did our eyes see it done. 8 Accept this atonement for your people Israel, whom you have redeemed, Lord, and do not hold your people guilty of the blood of an innocent person.” Then the bloodshed will be atoned for, 9 and you will have purged from yourselves the guilt of shedding innocent blood, since you have done what is right in the eyes of the Lord.
Deuteronomy 21:1-9 NIV
When we see this sort of long, ceremonial requirement in the Old Testament we tend to get a little frustrated, and depending on our beliefs we either remark how nonsensical or mysterious are the Laws of that ancient book. We all too rarely even give the text the chance to show its good sense, observing as we do that its sense is contrary to modern habits. We would rather see some of the mandates of one of the innumerable CSI series. “What,” we demand, “has that poor heifer ever done to deserve to lose its life over an unsolved murder? What possible practical or moral value could all that travel and ceremony and the slaughter of an animal have compared to a serious forensic investigation of the case?” Most are content to leave it at that, or leave it with some muttering about mystery and the unknown. But what we are looking at is really not mysterious at all; it is as sound and practical a piece of law as the First Amendment would have been if the lawyers had never laid hands on it. We are looking at the practical use of incentive by a legal system as a substitute for a vast body of invasive regulation.
Let’s consider the immediate effect of this law, from the perspective of incentives and public policy. Like all good laws, it begins with a concrete and obvious physical test: “If someone is found slain.” Thus it is a relatively simple matter to know when this law applies, as opposed to the other laws regarding murder. It follows up (with a clarity I need not emphasize) by specifying upon whom the obligations of this law fall: “Your elders and judges” and further specified to be the elders and judges of the physically nearest town. Notice once again the concrete and indisputable test; we are not looking for the most probable town or the most hostile town or the town with the worst intentions or the (LOL) most “reasonable” town as it might be specified in modern law. We are looking for a town we can identify with a measuring line, and an identification we can barely hope to dispute even with the aid of lawyers. In other words, this ancient law has dispensed with two modern legal sophistries, each worth months and millions in a modern court, in a matter of two sentences. And what actual duties does this law impose upon those officials specified? We may sum it with three words: “A tremendous hassle.” The whole group of those “Elders and Judges” who enjoy the status and power involved in deciding public matters and resolving the disputes of others are to be pulled away from their own ever-so-important business to find a cow and a river and a field that has never been worked and all go down together and perform these ceremonials and swear an oath. Somebody is going to be out a heifer, and to top that off it is to be one that has never been used as a work animal; the field is narrowed. So this cow, which somebody was saving for some purpose, is going to have to be used instead for this purpose. But the elders and judges have not been given authority to confiscate to cover this expense; they have the actual and full duty of obtaining this expensive animal on their own account in order to perform their own specified duties. And if the cow weren’t enough, an unworked field by a river isn’t the easiest thing to find in the populated world, especially since we are starting from a town; the density of agriculture will be highest immediately surrounding these Elders and Judges, and only drop off sufficiently to expose suitable fields as they travel more impractical distances from their homes. Hilariously, this rule of hassle actually defies modernization: As transportation improves, making it easier for the Elders and Judges to travel to the suitable field, it also makes it easier for a farmer to turn that field into one that has been worked. The law thus essentially has a permanent hassle written into it; it will never be convenient or easy for a murder to be ruled “unsolved” under this law.
That very thing is the whole point; there will always be a temptation, when confronted with the death of an unknown person at an unknown hand, to wearily go through the forms of an investigation and then chalk it up as unsolvable. And if we specified a certain level of investigation that was required before these Elders and Judges were off the hook, this would essentially become the automatic steps taken before the case was abandoned, because solving the murder of a person out in a random field is a hard thing. We would see the same sort of bureaucratic routine that we constantly do see, under the modern regulatory state. But instead, the law of the Old Testament specifies a concrete test, and a powerful incentive, and leaves it to the Judges whether they wouldn’t rather conduct a thorough investigation. If they, for good reasons or bad, are unable to solve the murder or employ some expert to do it, they will have to endure, personally, the tremendous hassles involved in this law. This is the very meaning of incentive: Tell a man the consequences if he leaves a thing undone, and you will have his best efforts to do it. You will have all his gifts and talents, rather than his rote obedience. You will have him acting swiftly where he is able, cautiously when it is needed, shrewdly to his full capacity. In short, you will have not the quarter or tenth of his abilities you employ when you order him about; you will have the very best and most efficient he can offer.
When we compare incentive to oversight, almost all the advantages lie with incentive. The mere effort involved in oversight is entirely a lost and useless thing when the same work could be achieved by incentive; the careers of the millions of managers bothering people all over the world are merely a massacre of man-hours, a colossal wastage of work, waste and blight on a scale like that of the wreck of an oil tanker. Still greater is the waste seen where oversight actually fights against incentives, where a man is told to do one thing and paid to do the opposite. Managers of such situations are like men furiously trying to shovel the water out of a swamp; the user of incentives is like a man who drains it.