The Prozbul – Hillel’s Financial Creativity – Behar 5781

Trying to claim that the Torah supports this or that contemporary economic system or policy is like trying to fit a round peg into a square hole.

Jews have lived in many places and times and dealt with many different economic and political systems.  In all of those systems, there was economic struggle and human suffering, along with thriving and flourishing. We survived as a people due to cultural and religious adaptability.

Rather than try to awkwardly shoehorn the Torah into our modern theories, why don’t we instead look at what the Torah actually describes?

Parashat Behar, the first of this morning’s double parashah, presents a priestly vision of economic justice in ancient Israel. It offers details about land ownership, debt, poverty, and wealth. It describes indentured servitude and slavery.

By looking closely, perhaps we might learn something about the economic system that actually existed at the time.

First and foremost: there is no land ownership. It all belongs to God, who apportions the land to whom God sees fit. “The land must not be sold beyond reclaim, for the land is Mine; you are but strangers resident with Me.”  (25:23)  This is a core concept that we must understand. Nobody owns property.

The parashah begins with a description of the shemitah, the sabbatical year. Just as every seven days ends with Shabbat, every seven years ends with Shemitah.

The Israelites are permitted to work the land and collect the harvests for six years. The seventh year is a Shabbat Ladonai – A Sabbath unto the Lord. Every seventh year, the land must be allowed to rest. There can be no harvesting or planting. Everyone is entitled to eat what the land produces on it. The Torah specifies “you” – the Israelites, along with their slaves, employees, indentured servants, and animals.

Every seven shemitah years ends with the Yovel, the Jubilee year. On Yom Kippur of the Jubilee year, the shofar is sounded throughout the land. All harvesting and planting is forbidden, as in the Shemittah year. In addition, all property returns to the person whose holding it originally was, or his heirs.  All indentured servants are automatically redeemed as well, going free and returning to their ancestral lands.

The Torah then describes the cycle of misfortunes that lead a farmer into servitude. When things first start going downhill, the farmer can take out an interest free loan to buy seed. If that does not work, the farmer sells part of his land for more seed. But not the land, actually. It is the annual productive capacity of the land, multiplied by the number of years remaining until the Jubilee. This makes sense, since the farmer gets the land back on the 50th year. If he manages to do well, he can repurchase the land at any time before then, redeeming it. It is his perogative.

If that does not work out, he can sell the productive capacity of his remaining property. He then remains on the land and becomes a sharecropper.  The purchaser of the land has to supply the tenant farmer with seed, and the farmer tries to pay off his debt with the proceeds from the harvest.

If this does not work, the farmer sells himself and becomes an indentured servant. The purchaser now takes on full responsibility for his well-being, including paying him wages. If he makes enough to pay off his debt, he goes free. Otherwise, he must wait until the Jubilee year.

All of this applies to Israelites dealing with other Israelites. The Torah specifies different treatment for non-Israelites. Non-Israelite slaves are owned in perpetuity. They cannot redeem themselves and do not go free in the Jubilee year.

So what can we say about this economy? There is no land ownership. While a successful farmer can increase his holdings for a time, it gets reset every 50 years, so there cannot be any accumulation of wealth. There does not seem to be any money in this system. Everything is based on agricultural commodities. Since all land ultimately remains under the control of the original family, there is little flexibility. Newcomers cannot break in to this system. A person who does not want to be a farmer does not have many options, since wealth is concentrated in the productive capacity of the land. 

At the same time, there is a strong concern for justice, and for preventing people from falling through the cracks when things turn poorly for them. Israelites are responsible for their neighbors. Even when someone becomes impoverished, they retain their rights and must be supported by those who are better off. Plus, the ability to redeem the land is totally in their hands.  The purchaser is not allowed to refuse to sell it back.

Was this economic system ever put into practice? During the first Temple era, we do not know for sure. But the Prophet Jeremiah makes a point of redeeming his ancestral land before he goes into exile when the First Temple is destroyed. In the Book of Ruth, Boaz redeems the land owned by Ruth’s deceased husband.

Biblical scholars argue about the extent to which these laws were observed. But the fact that the Torah can construct such an elaborate system of wealth redistribution implies that it is reacting to some situation on the ground. Behar represents the priestly vision for a just redistribution of wealth.

During the Second Temple era, however, the shemittah and Yovel laws were definitely being observed. Nehemiah makes reference to it in the fifth century. Philo and Josephus, in their histories, describe its practice during the late Second Temple period.

But the economic situation that Jews are living under is nothing like what existed centuries earlier. Let’s fast forward to the late Second Temple period, after the biblical era has ended. The Romans are in charge. The economy has changed drastically. Property ownership exists.

There is now money, which allows for a much more complex, growth-oriented economy. Think about what money is for a moment. The Emperor issues an order to make coins. The coins have limited intrinsic value, based on what kind of metal they are made of. But the government sets a value for those coins, a value that holds to the extent that people are willing to use it.

To expand the economy, the government encourages the issuing of credit, either by banks or by wealthy individuals. They make interest-bearing loans, which increases the money supply, allows businesses to grow, and allows trade to take place over vast distances.

A wealthy class emerges. Rich people need somewhere to park their money, so they do the obvious thing. They invest in real estate. Gradually, smaller farmers become squeezed out and are forced to sell their lands to wealthy absentee landowners, who typically dwell in the cities.

Jews, of course, are living under Roman rule, and they have to adjust to this system. Those Jews living in the land of Israel are also bound by the Torah’s agricultural laws, including those of the Shemittah and Yovel.

According to Deuteronomy, debts are cancelled every seven years, during the Shemittah. That is a problem. Why would anyone make a loan, especially an interest-free loan, if it is subject to cancellation at the end of each seven year cycle?

The result are as expected: credit dries up for those who are most in need. The poor remain poor, and the wealthy refuse to step in.

This situation led Hillel HaZaken, Hillel the Elder, to take action. Mishnah Tractate Shevii details the laws of the Shemittah year. The tenth chapter introduces an economic innovation that Hillel introduced. It is called a prozbul. The word most likely comes from the Greek pros boule, which means “before the council.”

The prozbul was a contract in which a creditor appears before a Beit Din, a Jewish court, and declares, “I turn over to you, so-and-so, judges of such and such a place, that any debt that I may have outstanding, I shall collect it whenever I desire.”  (Mishnah Sheviit 10:4) In other words, the debt, which by law should be cancelled, is transferred over to the court. The court is not a person, and therefore has no obligation to cancel the debt. After the Shemittah year is over, the creditor reclaims the debt from the Beit Din.

Why did Hillel issue this decree, which so clearly goes against the spirit, if not the letter, of the Torah? The Mishnah answers that question.

When he observed people refraining from lending to one another, and thus transgressing what is written in the Torah, “Beware, lest you harbor the base thought, [‘The seventh year, the year of remission, is approaching,’ so that you are mean to your needy kinsman and give him nothing].” Hillel enacted the prozbul.

Mishnah Sheviit 10:3

According to the Mishnah, those with means behaved exactly as we would have expected them to. They stopped making loans. That is why Hillel made this dramatic change. To put it into modern terms, “he eased up on banking regulations in order to get the economy moving again.”

The prozbul is one early example of how Judaism evolved to deal with a new economic reality. Over the past two thousand years, there have been many more developments. The best ones recognized, as Hillel the Elder did, the Torah’s underlying concern. “Beware, lest you harbor the base thought so that you are mean to your needy kinsman and give him nothing.”

Whatever the economic system, whether it be barter, feudalism, mercantilism, capitalism, socialism, whatever’ism, we are supposed to take care of each other. There will always be some who do well while others struggle. We have seen this very clearly during the pandemic.

Food Banks around the country have distributed food in record numbers. We have been warned lately that the numbers of homeless Americans will rise dramatically when national and state eviction moratoriums end in the near future. I am not going to suggest that there is an obvious or simple solution to these problems. We live in a vastly complex global economy that defies simple solutions. 

But we would do well to remember the values expressed by the Torah laws: to be compassionate and generous with our neighbors, to not encumber them with unpayable debt, to support them when they stumble, and to give them opportunities to redeem themselves.

Cash Bail in Jewish Law – Shoftim 5778

Of the many problems that California is currently facing, bail reform is one that has recently been in the news.

That is because there is a bill, SB10, that has been going through the California State Assembly and is going to be up for a vote this week after numerous modifications over the past year.

The latest version represents a compromise that does not please everyone.  The law would eliminate the cash bail system.  Instead, each county’s court system would determine whether to incarcerate an accused criminal based on a pre-trial assessment of whether a person would be a risk to society or pose a flight risk.

If SB10 passes the Assembly, it will still need to clear the State Senate and then be signed by the Governor.

Let me state at the outset that I do not know whether this law will solve the problem.  But the problem certainly needs solving.

Even though all of us are experts on the judicial system due to our careful viewing of Law & Order, please allow me to review a few details.

Bail is the release from custody of an accused person before the trial.  

It originated in England in medieval times as a way to make sure that a suspect would show up in court.  It does not necessarily involve the payment of money.

Cash bail, which SB10 would eliminate, means that the court requires the accused to come up with a certain amount of money in order to be released.  If the money is not raised, then the accused remains incarcerated through the end of the trial.  If the money is raised, the accused is released on bail, with the money being returned after the trial is complete, minus fees. 

In the 8th Amendment, the Founding Fathers included the clause – “Excessive bail shall not be required.”  The Supreme Court has never determined what “Excessive” means.

Under current federal law, certain crimes are not subject to bail.  Suspects must be kept in jail before the trial.  This includes cases in which there might be a sentence of death or life in prison, certain drug offenses, and a few other categories.  A judge who determines that a suspect would pose a risk to his/her community or be a flight risk can also deny bail.

For all other crimes, there is a bail hearing.  Most states use the cash bail system.  Accused persons who are unable to afford the bail amount face a choice.  In states where it is legal, like California, they can go to a bail bond agency, which loans them the money in exchange for a payment, usually 10% of the total bail amount.  The bail bondsman then makes sure that the accused shows up in court.

A person who cannot afford the bail bond must remain in jail, even though bail has been granted.

There are a number of problems with the cash bail system.

Keep in mind, first of all, that under American law a suspect is innocent until proven guilty.  This means that when a person accused of a crime who is kept in jail, he is kept there as a legally innocent person.

The median bail amount in California is $50,000.  Only 1 in 10 can afford to pay it.  63% of those who are currently sitting in jail have not been convicted of anything.  They are waiting for trial or sentencing.  A person who is in jail awaiting trial is unable to work.  He (it is usually a he) typically loses his job, and possibly his home.  He is unable to support his family.  He has great difficulty meeting with his legal team and preparing his defense.

In contrast, a person who has the means to post bail can continue to work and has a much easier time of meeting with his lawyer and preparing his case.  The result is that for those convicted of the same crime, those who post bail, on average, receive a lesser sentence than those who have to remain in jail before the trial.

There is evidence, as well, that bail rates for black and Hispanic defendants are set higher than for white defendants who are charged with the same crime.

Finally, the prospect of spending a long time in jail awaiting trial encourages innocent people to plead guilty to crimes they did not commit.  This gets them out of jail, but it also gives them a criminal record, which can have a lifetime impact.

SB10 tries to address these issues.  As the bill itself states:

It is the intent of the Legislature in enacting this act to safely reduce the number of people detained pretrial, while addressing racial and economic disparities in the pretrial system, and to ensure that people are not held in pretrial detention simply because of their inability to afford money bail. (SB10, Sec. 2)

I do not know whether SB10 will achieve these goals.  I am trying to learn more about it, but am certainly no expert.  I encourage all of us to educate ourselves on this issue.

When trying to understand an issue of criminal reform, it can be helpful to look at other systems.  While not perfect, our Jewish legal tradition is rooted in principles of fairness and equity.  It turns out that Jewish law, or halakhah, has something to say about bail as well.

This morning’s Torah portion, Shoftim, is primarily about the justice system.  Moses instructs the Israelites, collectively, to establish and maintain just institutions of government.  In the second verse.  Regarding judges, he declares:

Lo tateh mishpat, lo takir panim, lo tikach shochad ki hashochad ye’aver einei chakhamim visalef divrei tzadikim.

You shall not skew judgment.  You shall recognize no face and no bribe shall you take, for a bribe blinds the eyes of the wise and perverts the words of the innocent.  (Deut. 16:19)

These are the three principles of judicial fairness.  They appear numerous times in the Torah.  Usually, the Torah addresses them to judges specifically.  Here, Moses delivers these requirements to the Israelites collectively, as if to say that we all bear responsibility for the behavior of soceity’s officials.  We must make sure that those whom we appoint as justices and magistrates abide by principles of equality and fairness.

These three concepts present three aspects of judicial fairness.

Jewish law recognizes that judges are human beings.  A judge may not do anything in the court that would show favor to a wealthy person or an acquaintance.  Not only is a judge not allowed to take a bribe, for obvious reasons, a court is not allowed to charge fees to the plaintiffs in a case.  Mishnah Bechorot (4:6) states that “anyone who charges a fee to the litigants to judge – his judgment is nullified.”

The judge cannot allow anything to occur in the courtroom that might prevent a plaintiff from presenting the best possible case.

The judicial system the Torah describes is fairly uncomplicated.  In a real legal system, however, there are a lot more moving parts.  It is not difficult to imagine a flawed court that is comprised of well-intentioned, knowledgeable professionals of high moral character.

Regarding bail, the Talmud (BT Sanhedrin 78b) deals explicitly with the question of what to do with a suspect before the trial is held.  If it is a capital crime – in other words if the accused has been charged with murder – he must be jailed by the court until guilt or innocence can be determined.  In such a case, no bail is permitted.  If the accused has severely injured a person, and it is not clear if the victim will survive, he is also held in jail.  The reason is because the court does not yet know if he will need to be tried for murder or for injury.  Rashi explains that the accused is imprisoned out of a concern for flight-risk.  If the suspect injures another, but the injuries are not considered to be life-threatening, then he is released until the trial.  

The Mekhilta (Mishpatim, Ex. 21:19, 2), an early legal midrash collection on the book of Exodus, addresses the question of cash bail directly.  In the situation described in the Talmud, the accused is not permitted to post bail and go free.  He must remain incarcerated until the victim’s fate resolves.  

An entry under “Bail” in the 1906 Jewish Encyclopedia concludes as follows:

…as a rich man can readily give Bail and the poor man can not, the release of the prisoner on Bail would run counter to that other oft-repeated rule of the Torah, ‘One law there shall be to you.'”

Over the centuries, Jewish law has not traditionally employed incarceration as a punishment in the legal system.  It was basically used just for holding an accused murderer before trial out of concern for public safety and potential flight.

There are essentially three types of punishments that a Jewish court can administer.  For capital crimes, the punishment is death.  For sins, the court can administer lashes.  For civil and personal injury cases, there are fines.

One form of imprisonment that is mentioned in ancient sources is called the kippah.  It was a small cell in which a person would be imprisoned and fed meager rations until he died.  This could be used in a case in which a murderer was found guilty, but could not be sentenced to death because of a technicality.  There is no evidence that the kippah was ever actually used, though.

Dina d’malkhuta dina is an ancient concept that is applied in particular to monetary laws.  “The law of the land is the law.”  In order to participate in the economies of the societies in which they live, Jews need to adopt those society’s laws, including when they do not conform to Jewish law.

For most of the past two thousand years, Rabbis did not have the authority to issue legal rulings except in cases that were internal to the Jewish community.  Many of the discussions on criminal and civil law, therefore, are theoretical.  But there is a historical record of a cash bail system being utilized by a Jewish court.

Rabbi Yitzchak ben Sheshet Perfet, known by his acronym as the Rivash, was a 14th century Spanish Rabbi.  He wrote a teshuvah, a legal decision, that deals with a question of whether a debtor who could not pay off his debts could be incarcerated.  He rules that this would be forbidden under Jewish law.  But then he laments:

The truth is, in my own city, the judges’ custom is to imprison a person who is liable in this manner, according to an act of the community.  And they further enacted that even without being found guilty, any person can be held over a lawsuit, unless they pay collateral, and they call this a ruling of the court.  I did not want to allow this act to stand, because it is not in accordance with our Torah’s law.  And they said to me: this is in accordance with the “marketplace act” [a principle allowing new rules that make commerce smoother], because of swindlers, and so as not to bar the door in the face of borrowers. And I allowed their custom to stand. (Teshuvot HaRivash 484) 

In other words, in the Rivash’s day, Rabbinic courts were sending Jews to debtors prison and allowing them to post bail.  This was apparently the dominant practice in the area, and was deemed necessary by the leaders of the Jewish community to preserve the integrity of the marketplace.  Knowing that it was against the Torah, the Rivash reluctantly allowed it to stand.

The existence of the modern State of Israel has made the question of how to punish criminals in a Jewish legal system practical.  

Rabbi Haim David HaLevy, the former Chief Rabbi of Tel Aviv, who died in 1988, wrote a Tehuvah in which he stated categorically that a person who is being charged for a capital crime should be incarcerated without bail under any circumstance.  Citing the Rivash, he concludes that “that for all other crimes, for which the punishment is monetary, we let them go [on bail] until the determination of the sentence.”  (Aseh L’kha Rav 3:48)

Like any legal system, Jewish law is not perfect.  Nevertheless, for more than three thousand years, it has strived to conform to principles of justice and equity that are rooted in the Torah itself.  As such, it has something to teach us today.

I would never suggest that state or federal law must conform to Jewish law.  We Jews should be nervous whenever a religious group tries to impose its beliefs on secular law.

But our ancient tradition has much to teach us concerning the establishment of societies and institutions that are guided by justice and equality.  We would be wise to improve our understanding of Jewish law as we try to determine the best way forward for our community, our state, and our nation.

 

BIBLIOGRAPHY

Incarceration in Jewish Law: A Brief Overview

10 things you need to know about money bail