Few would disagree that looking to the past can provide some valuable insight into the future. When charting the course for legal development, we tend to do three things with the past. Most of the time we depart i.e. we learn from our mistakes and do the opposite of what we should have done in the past. Alternatively, we dispose of the memory of the past altogether. Sometimes, we reform, gaining insights from the past to develop our law today, a hybrid of old and new. It is with this undercurrent that I write this article. It is argued here that the ancient agricultural practice of gleaning provides some insight into reforming laws that pertain to poor relief. The article will see gleaning laws in light of this.
Before I should proceed I should mention that there are two senses in which I use the phrase ‘gleaning laws’. In the first sense, I am referring to the laws laid out in specific passages of Leviticus and Deutoronomy, the third and fifth books respectively in the Old Testament, commanded by God and spoken through Moses. In the second, I am referring to the customary practices in the common law tradition in England, which though were not technically law in the sense in which we understand today, had the force of it due to the age of custom. Before we proceed further, I should also define the activity of gleaning, which is an ancient agricultural practice which involves the gathering of grain or other harvested material left behind by reapers. The ‘gleaning laws’ that arose, in both senses, aimed to regulate this activity. Let us proceed to understand the first sense of gleaning law. Also, until indicated otherwise, note that I am speaking of gleaning laws in this first sense.
Biblical origins
As mentioned earlier, gleaning laws have biblical origins. Here are the specific verses in which they are found:
“When you reap the harvest of your land, you shall not reap your field right up to its edge, neither shall you gather the gleanings after your harvest. And you shall. not strip your vineyard bare, neither shall you gather the fallen grapes of your vineyard. You shall leave them for the poor and for the sojourner: I am the Lord your. God.” (Leviticus 19:9-10 ESV)
“And when you reap the harvest of your land, you shall not reap your field right up to its edge, nor shall you gather the gleanings after your harvest. You shall leave. them for the poor and for the sojourner: I am the Lord your God.” (Leviticus 23:22 ESV)
“When you reap your harvest in your field and forget a sheaf in the field, you shall not go back to get it. It shall be for the sojourner, the fatherless, and the widow, that the Lord your God may bless you in all the work of your hands. When you beat your olive trees, you shall not go over them again. It shall be for the sojourner, the fatherless, and the widow. When you gather the grapes of your vineyard, you shall not strip it afterward. It shall be for the sojourner, the fatherless, and the. widow.” (Deuteronomy 24:19-21 ESV)
Jacob Milgrom helpfully summarises the above obligations: [1]
We also see from the verses above that the parties intended to be benefited by the laws on gleaning were the poor, sojourner (or resident foreigner), fatherless and widow. For the remaining of this article they shall be collectively referred to as “the stakeholders”.
The stakeholders will enter onto the land of the farmers to gather the produce that was left behind to feed themselves and/or their families. To some extent, the sojourner, fatherless and widow may be subsumed into the category of poor. A sojourner is a foreigner who was unlikely to own much in a foreign land. A “widow” though allowed to inherit property from the husband, may find themselves without financial support from the now deceased husbands. [2] The Hebrew word for “fatherless” as used in Deuteronomy 24:19-21 is yathom, which may mean a child “who has lost both parents” rather than the loss of just their father. This makes sense as the latter interpretation would enable their widowed mothers to inherit property for their husband. In short, each of these three categories could be placed into the fourth - the poor - as well, and the gleaning laws existed to alleviate the struggle that they face. [3]
The difference from modern conceptions of poor relief (i.e. charity) may be noticeable at this point. The gleaning laws operated to impose a legal obligation. This by definition is binding, as opposed to a charitable incentive which is based on voluntariness or choice. Furthermore, this binding is communal, in the sense that all members of the ancient Israelite community have a burden to fulfil their legal obligation. This is regardless of any excuses familiar today such as having no control over the actions of the other member. At first, this may seem unusual or even unpalatable in light of today’s culture which considers the imposition of a communally-binding obligation too restrictive or invading on the realm of personal choice. However, in properly appreciating the imposition of this sort, one would observe legal, moral and economic incentives, operating in a dynamic relationship.
The legal incentive
i) Distribution of responsibility between landowners
Since the obligations are communally binding, responsibility would need to be divided. This would necessarily raise questions about how that responsibility is to be divided among individual landowners (who are members of the community) so as not to overburden any individual. Their solution: a reasonable compromise where the size of the harvest be proportioned, albeit roughly, to the size of their land (or vineyard or tree), since this would reflect the means of each landowner to provide for the stakeholders. The English custom of division into church parishes echo this spirit, something which will be explored further below. Fitting it into today’s context, if every household was bound by law to have responsibility for the poor, perhaps justified as a form of mandatory civic duty, charities would less likely be overburdened and the stakeholders today would be better cared for.
ii) Distribution of responsibility between landowner and worker
Seeing distribution of responsibility in another way, some of the burden is placed on the stakeholders to prevent overburdening the landowners. This is achieved by the negative character of the laws on gleaning. In Chapter 2 of the Book of Ruth, the titular character had to glean the left-behind barley harvest herself, and did so with hard work “from early morning” “until evening”. [4] This clearly indicates that the stakeholders had to work to eat. Meanwhile, the landowners did not have to turn their workers around to pick up the produce, which benefits them from an economic productivity perspective (which I will elaborate on subsequently). On top of promoting an always welcomed-culture of hard work, it implicitly deals with the problem faced by generalised welfare payments policies disincentivising the poor from working. It also requires no additional effort on the part of the workers to abide by their obligations. Even if they are a bad worker and forgot to harvest the crops completely, they can happily tell their boss, the landowner, that they have helped him abide by his obligation under the law!
Dealing with some counter arguments
The most anticipated counter-argument would be that people today no longer live in agricultural settings. There has been a major shift to industrialisation by virtue of the Industrial Revolution and in any case, the practice of land enclosure has simply increased! Here it should be clarified that the aim of this article is not to revive a strict letter return to gleaning. In any case, that is not the intention behind the gleaning laws in Leviticus and Deuteronomy. Biblical scholars have traditionally Old Testament laws into civil, ceremonial and moral laws. Civil laws are that “constituting the civil government of the Israelite people”. [5] They needed to be followed to the letter by the ancient Israelite community but does not “demand exact replication” by us today. [6] Does that mean I have just wasted my readers’ precious time and we can stop reading this altogether? Of course not! Our different economic orientation does not outweigh the usefulness of the mechanisms within a communally-binding law. After all, to reassert my purpose, it is to appreciate the unique mechanism that is communally-binding obligations, and how it may contribute some insights into drafting effective poor relief laws. As of now, the gleaning laws are a fair distribution of responsibility between the providers, analogically represented by the landowners, and the stakeholders, the gleaners of today.
Furthermore, some may argue that the tax system that we have today distributes responsibility among citizens for the poor. However, the obligation to pay tax merely correlates with poor relief. It lacks the personal interaction and witnessing of one’s contributions come into fruition, one that can be especially motivating and encourage such service in the future. Also, to rehearse earlier arguments, it requires a central decision maker and distributor, which requires manpower to operate, and invites the problems associated with the non-necessity of stakeholders to work.
A stronger counter-argument would perhaps aimed at the lack of precise management in the operation of the gleaning laws. Indeed, “right up to its edge” and “not go over them again” affords insufficient specificity. [7] Clear laws are one of the core tenets of the rule of law, at least according to Joseph Raz. [8] However, Raz in that same article notes that “conformity to the rule of law is often a matter of degree” and this applies not only to “the legal system as a whole” but to “single laws” as well. One of the values of the rule of law is its ability to “stabilising social relationships which but for the law may disintegrate or develop in erratic and unpredictable ways”. [9] Perhaps then it would not be entirely out of the question for the rule of law - according to Raz - to allow a little lack of clarity, if this avoids some of the ‘disintegrat[ion]’. How is this so? Firstly, the nature of gleaning laws are such that it was written for the Israelite community.[10] Thus, the laws by nature fit Raz’s criteria of social organisation. Secondly, the insufficient specificity may be a small cost to pay for what I term the moral incentive of discretion. If I am right, this moral incentive of discretion would produce a law-abiding community, and a law-abiding community would stabilize social relationships, since stabilizing social relationships is one of the obvious functions of law in the first place. Here it will then be asked, how does this moral incentive of discretion actually work?
The moral incentive of discretion: the alterable minimum standard
The moral incentive of discretion is defined for our purposes as the capacity to decide the extent at which they comply with the law through an alterable minimum standard. It is reasonable to infer from silence by the gleaning laws that the width of the edges or how much to collect at their legally sanctioned first and only harvest is left to the landowner to decide. [11] This width or amount would be a minimum standard of compliance, which may be altered freely - however thick or thin the edges as the landowner prefers - so long as he does not harvest it exhaustively. Even if he harvests it to the point that the thickness of the edge is from a bird’s eye view but just a line, there will always be gleanings left on the ground as a result of the efficient aggressive swings of the sickle, so the poor will always have a ‘slice of the pie’. This is the first way in which the landowner is afforded the moral incentive of discretion: in deciding the extent at which he complies with his obligation, knowing that it does not detriment the poor by robbing them of sustenance (regardless if the landowner cares about this or not).
The second way of affording this, which may be the other side of the coin, is through granting the landowner the decision to go beyond the requirements of the law, such as Boaz did when he asked his workers to take some barley harvest from the bundles and leave it for Ruth to glean. After complying with the minimum requirements of the law, landowners may be able to imitate Boaz in his “kindness”, but does not have to. [12] Both these operations of this moral incentive of discretion produces a dynamic of obligation-incentivised service to the law and morally-incentivized service to fellow man.
The economic incentive
To tie up the argument with a bow, let us consider gleaning from the perspective of the economic incentive gleaning provides. [13] It is expected that harvesting especially prior to the use of heavy machinery produced a lot of waste as stalks fell onto the ground. Ugo Bardi captures the problem accurately: [14]
...imagine a line of reapers advancing in a grain field. Obviously, they had to stay at a certain distance from each other while swinging their sickles. So, it was. unavoidable that some grain stalks would be left standing and that some spikelets would fall on the ground. Could you avoid this loss? Maybe you could try to get. the reapers closer to each other; but that could even be dangerous. Or maybe you could force the reapers to be more careful, or to stop and collect what they let fall on the ground; but that would slow down the whole process. In short, we have here a classic problem, well known in economics: efficiency shows decreasing. marginal benefits. The optimal yield of harvesting is surely obtained collecting less than 100% of the grains.
The solution as you may have guessed was gleaning. Ugo Bardi posits that gleaning, if understood through the lens of biophysical economics - that is a view that sees the human economy as an activity that mimics biology - actually makes it worth processing. The importance of seeing this way as opposed to through the lens of traditional economics is that the produce fallen on the ground would be seen as waste in the latter view. If we view through the lens of the former, the venture (i.e. the harvesting) might be “worth it”. This “worth” question can be measured using the concept of Energy Return for Energy Invested (EROEI), where Energy Invested is “reduce[d]...by means of gleaning”, thereby producing “a sufficient yield to make [the harvest] worth processing”. [15]Tying this back to the gleaning laws, landowners abiding by their obligation to the stakeholders coincides with the production of a high (and therefore good) EROEI.
As in all economic models, some assumptions have to be made. One of such assumptions is that EROEI must be viewed from the perspective of gleaning being, using Bardi’s words, “managed as a “commons”, that is, free for everyone to collect”. This might seem circular as gleaning must be assumed as a right for all to justify the economic benefits of it being a right for all. However, it is to be reminded that the purpose of this article is not to revive the activity of gleaning per se but to gain insights as to how the gleaning laws can revolutionize the drafting of Poor laws. One insight from this is the practice of framing the economic question from a different perspective when critiquing those laws (or policies). For example, shifting the perspective from just the landowners to both the landowners and gleaners produces a better EROEI. It also aligns with the value of participatory democracy, where the interests of all (or at least as many as possible) stakeholders are considered.
I have demonstrated to my best effort the legal, moral and economic incentives of gleaning laws. I would now like to frame my argument a couple millennia later, to look at gleaning laws in the second sense, as a common law customary right.
Gleaning as a common law customary right
Gleaning was a customary right for the stakeholders in English common law prior to the 18th century. Although not strictly law as in the context of the Old Testament, it resembled law in spirit by taking the form of well-established custom. Gleaning laws entered into the common law through the influence of Christianity on the common law, inserting its principles into that of the latter. It also due to the “special influence” of the institutionalised Church upon the common law, back when the Church exercised an authority almost as important to the State. The Church played a role in the legal function, regulating the reciprocal rights and duties of the landowners and gleaners.
As evidence of this, Stephen Hussey in The Agriculture History Review writes that there was a custom in Essex involving the ringing of the church bell to signal to the stakeholders when the time for gleaning began.[16] This signal ensures the stakeholders always had a fair opportunity to glean. In other words, “to give every gleaner a fair chance of getting a due share of loose corn”. [17] This would prevent “ardent souls from getting up at two in the morning” to beat the mothers of the household to gleaning and allowed “married women time to dress their children and give them their breakfast before starting out, so that they had an equal chance with the single women." [18] Undoubtedly, the parish had put in a well-reasoned effort to ensure an equality of opportunity to glean in light of individual circumstances of the stakeholders.
Other customs included the division of responsibility by parishes (which are administrative districts with a church and church leader such as a priest or pastor) and the placing of a few sheaths of glean known as “gleaning police”. [19] These indicated the boundaries at which the stakeholders could glean, so that no parish is overburdened by a disproportionate number of stakeholders. There was a personnel tasked with enforcement of these customary rules, known as a “gleaning queen”. Her role was to guard against intrusion from neighbouring parishes, ensure gleaners abide by the hours of gleaning and empowered with a list of punishments for those who break these customary rules. For example, forfeiting and bestrewing their corn as the gleaning queen in Remptone, Nottinghamshire in 1860 threatened to do to those who breach the customary rules of gleaning. [20]
It is observed then that gleaning laws in this second sense - as a customary right in the common law - went further than gleaning laws in the Old Testament. The setting of time periods to glean, division of responsibility by parish, sanctions against breaching customs and appointment of enforcement personnel work to provide better protections to those who depend on it. The setting of time periods particularly was at that time an innovative way to ensure access to the right, which otherwise would make the universality of the right redundant.
While gleaning was a universal right for the stakeholders, the customs were far from universally welcomed. Interestingly, this is not something new. There has been evidence of this since biblical times. The book of Ruth narrates how Boaz’s workers were displeased with her for gleaning (even though she very clearly has the right to), to the extent that Boaz has to warn them not to reproach her. [21] Some men in the other field were even willing to harm her for gleaning. [22] This indicates that since those times the landowners their workers were not happy with the obligations imposed on them by the gleaning laws.
This sentiment continued among England landowners up until the 18th century. Neil Darby points out that in the Earl of Spencer’s papers, “increasing tension between landowners and farmers and the local labouring population in East Anglia” was recorded. [23] This tension exacerbated into what was later called the “great case of gleaning” that is the case of Steel v Houghton (1788) 126 E.R. 32. [24]
The Steel v Houghton decision
Steel v Houghton was a House of Lords case which concerned a Suffolk woman by the name of Mary Houghton who sued for trespass by the local landowner James Steel after she gleaned on his farmland. There were several arguments raised by Lord Loughborough to support this decision that gleaning was not a customary right, namely because it was 1) “in some districts it is wholly unknown, and in others variously modified and enjoyed”, 2) tithes to the poor has traditionally been a matter of charity than of right, 3) relief to the poor is not a legal obligation but “religious duty”, 4) it opens the door to fraud and 5) inconsistent with the absolute nature of property. [25]
Responding to some of the arguments, 1) as Lord Gould in his dissent pointed out, particular regulations in its exercise by custom does not derogate from the general right. [26] Every parish may administer the gleaning laws differently, but as long as they uphold the general right of the stakeholders to glean they can be considered consistent. 1) is more akin to an observation than an argument. My response to 2) would be anticipated from earlier comments - particularly from the section of moral incentive of discretion - as something to the effect of “Why not both?”. In any case, the comparison with tithes actually weakens the argument as tithes as Lord Heath rightly notes that a common law remedy for tithes only arises when the occupier of the land permits it by his own conscience (or voluntary choice). [27] Tithes have a closer affinity with taxes, which have been distinguished from gleaning earlier. As for 3), it is undoubted that relief to the poor is a “religious duty”, but the use of the word “duty” shows that it shares a binding characteristic with legal obligation. Therefore, it can be suitably imported into the realm of legal obligation as long as there is merit in doing so. I have made the case earlier for the merit.
I believe argument 4) and 5) make the strongest case against gleaning. With respect to 4), Lord Heath rightly expresses his concern that some workers will “scatter the corn” so that there is a greater amount and ease for their family and friends to gather. This problem was not provided for in the gleaning laws in the Old Testament probably because the law intended to address the class of landowners without anticipating workers. Here the enforcement of gleaning times by the church bells do well to supplement the Levitical laws, ensuring that even if a worker scatters more corn for their family and friends, they too must wait their turn. To some extent, the problem raised by 4) may exist even in modern poor relief initiatives. Workers in these initiatives may help themselves to the resources available for the poor. The solution is more effectively checking and discipling of workers, and this solution may well have been incorporated into gleaning laws as custom in England. As for 5), there is a chronological disconnect which warrants the argument. It was common in ancient Israelite community to co-own private property, with the implication of gleaning laws in the Old Testament being that the stakeholders own the edge of the fields and the last pick of the harvest while the landowners own the majority rest. [28] In fact, “private” is a bit of a misnomer when compared with ideas of exclusive enjoyment of land we see in modern law. I concede that 5) would be a defeater if my belief was to bring back gleaning in its original form. However, as made clear above, it is not. I merely seek to illustrate a countercultural piece of law where responsibility distribution is done in such a way where the distribution is fair, grants freedom to follow (with a flexible minimum standard), has economic sense, and most importantly obliges all members of the poor to be provided for in as direct a manner as possible.
Concluding remarks
By way of conclusion, I have presented a legal, moral and economic justification for gleaning laws in the Old Testament and have examined both the positives and negatives of its transition into custom in 18th century England. Gleaning laws in both senses, especially when combining the legal mechanisms of both, provide for a counter-cultural way of poor relief laws, one which on the surface may appear to place an unpalatable obligation on every member of society, but actually affords within it a significant degree of freedom and more importantly, gets the job of providing sustenance for the poor, done. Readers may wonder why I have not provided a draft provision of what I think this would look like. The main reason for this is that it is difficult to find a modern equivalence of gleaning. The term gleaning itself has a definition of something to the effect of collecting leftover produce from supermarkets and delivering it to the poor, which participation is voluntary on all parties involved. The changing nature of the industry today makes gleaning in form only sustainable in agricultural lands which are far lesser in number than in the past. This is not detrimental to the message I aim to convey. I am merely proposing to implement the essence of gleaning laws rather than the form, the former of which is a nation-wide obligation, directly enforceable on the individuals irrelevant of the context at which we live in. A binding obligation can be - surprisingly - freeing.
[1]: Jacob Milgrom, Leviticus 1-16, (New Haven: Yale University Press, 1998), 225.
[2]: Richard H. Hiers, Transfer of Property by Inheritance and Bequest in Biblical Law and Tradition
[3]: -
[4]: Ruth 2:7; Ruth 2:17
[5]: Turretin, F, Institutes of Elenctic Theology, 11.24.1
[6]: Bayes, The threefold division of the law, <https://www.christian.org.uk/wp-content/uploads/the-threefold-division-of-the-law.pdf> accessed 17th October 2020
[7]: Leviticus 19:9-10 ESV; Deuteronomy 24:19-21 ESV
[8]: Joseph Raz, ‘The Authority of Law: Essays on Law and Morality’, p. 215
[9]: Ibid. , As mentioned earlier, it would have been classified under civil law, p.220
[10]: Caution must be exercised not to dismiss the insight gleaning laws have on the sole reason that the laws were not intended to be addressed to communities today.
[11]: Leviticus 19:9-10 ESV; Deuteronomy 24:19-21 ESV;
[12]: Ruth 2:20
[13]:The metaphor is used because a “bow” only makes a small part of the “box” gift which is the legal analysis which forms the majority of this article. The “bow” of economic analysis helps the argument appear for visually appealing as extra-disciplinary arguments in support of the proposition.
[14]: Ugo Bardi, Gleaning: An ancient custom that may return in the future, <https://www.resilience.org/stories/2015-07-24/gleaning-an-ancient-custom-that-may-eturn-in-the-future/> accessed 17th October 2020
[15]: Ibid.
[16]: Stephen Hussey, 'The Last Survivor of an Ancient Race': The Changing Face of Essex Gleaning, (1997) Ag Hist Rev.45.1, p.63
[17]: Letter from Alfred Ludgater, Essex Review, xxxiv, 1925, p.108
[18]: ERO, T/P 116/86, Letter from Alfred Hills of Booking to Mr Frank Hobson, Silver End, Whitham, 16 Aug 1933
[19]: Hunt, 'Letter', p 162
[20]: 'The Last Survivor of an Ancient Race': The Changing Face of Essex Gleaning, Stephen Hussey, (1997) Ag Hist Rev.45.1, p.63
[21]: Ibid.
[22]: Ruth 2:15; Ruth 2:9
[23]: Nell Darby, ‘Gleaning, poor women and the law’ <http://www.criminalhistorian.com/gleaning-poor-women-and-the-law/> accessed 17th October 2020
[24]: R. Bum, A New Law Dictionary (London, 1792
[25]: Steel v Houghton (1788) 126 E.R. 32 para 52
[26]: Steel v Houghton (1788) 126 E.R. 32 para 53
[27]:Steel v Houghton (1788) 126 E.R. 32 para 61
[28]: Robar, What can we glean from OT laws?, <https://tyndalehouse.com/article/what-can-we-glean-from-ot-laws> accessed 17th October
