Chevruta
January 11, 2023

What Is Debt and When Can We Refuse to Pay?

An investigation through Jewish text.

Allen Lipson in conversation with Sparky Abraham and Eleni Schirmer
All photos: Paul Salveson. Courtesy of the artist, JTT, and François Ghebaly.

Christine Sun Kim: How Do You Hold Your Debt, 2022, charcoal on paper, 44 x 44 in (detail)

Chevruta is a new column that aims to address the ethical and spiritual problems confronting the left. For each installment of the column—named for the traditional method of Jewish study, in which a pair of students analyzes a religious text together—Jewish Currents will match leftist thinkers and organizers with a rabbi or Torah scholar. The activists will bring an urgent question that arises in their own work; the Torah scholar will lead them in exploring their question through Jewish text. By routing contemporary political questions through traditional religious sources, we hope to discover new and unexpected avenues for inquiry into today’s most pressing problems.

You can find an audio version of this conversation here, and a stand-alone source sheet for group study here.

In August, when Joe Biden announced the cancellation of thousands of dollars in federal student loans for many borrowers, he reignited a long-standing political argument over the moral implications of debt. At the core of the right’s objections to loan forgiveness lies the belief, spelled out by writers like National Review columnist Charles C.W. Cooke, that borrowers chose to take on debt and therefore bear full responsibility for repayment. Contesting this commonsense notion, advocates of loan forgiveness on the left argue that debt today can never be purely voluntary because it is “wrapped around every necessity of life,” as Astra Taylor—cofounder of the Debt Collective, the nation’s first debtors’ union—recently wrote in The New York Times. For Taylor, debt’s power “as a core building block of our economy and unequal social order” partly derives from the shame we feel when we can’t pay it.

Whatever the fate of the White House’s proposal—which is currently being decided in federal courts—it has surfaced a set of underexamined moral intuitions about what we owe to lenders, to the state, and to each other. As the anthropologist David Graeber points out in his far-reaching study Debt: The First 5,000 Years, Western thought has long conflated debt and sin; words like “guilt,” “reckoning,” and “redemption” all emerged from lending transactions. Indeed, this pattern has a long Jewish history: The biblical word for economic debt, “chovah,” shares a root with the word for both positive obligation and culpability for sin, “chiyuv.” A famous passage in Pirkei Avot imagines God as a moneylender collecting from each human being at the moment of death. Linking debt with sin can help justify a political and economic status quo; if even God is like an unforgiving lender, then perhaps entrenched social structures of debt inequality aren’t all that bad. But over the past two centuries, religious Jewish socialists like Rabbi Abraham Bick have read the motif of God-as-debt-enforcer against the grain: Only God has the right to call in debts, so all human political authority is open to question by comparison.

As a rabbinical student and community organizer, I was excited to explore debt’s moral implications in traditional Jewish thought with two organizers from the Debt Collective, which has purchased and canceled tens of millions of dollars in medical, student, probation, and payday loan debt; organized the country’s first student debt strike; and worked with congressional Democrats to introduce debt forgiveness legislation. Eleni Schirmer is a writer and postdoctoral researcher at Concordia University’s Social Justice Centre in Montreal; Sparky Abraham is the Debt Collective’s legal strategist and the founder of Jubilee Legal, a debtors’ rights law practice in California.

As a starting point for our discussion, I selected a rabbinic responsum from 14th-century Spain by Rabbi Isaac bar Sheshet Perfet, generally known as the Rivash, on the question of whether a debtor can be seized and imprisoned according to Torah law. (Since the responsum seems to have never appeared in English, I translated and condensed it with an eye toward readability.) The Rivash’s historical moment felt just right for our purposes—familiar enough to relate to, but strange enough to draw out our unspoken assumptions through contrast. Then as now, debt is taken for granted as inevitable. And yet the Rivash and his interlocutors are talking about a very different sort of debt than ours: not a byzantine financial instrument packaged and traded by centralized banks, but a natural outgrowth of small-scale, reciprocal exchanges between basically equal parties. In this very different world, the Rivash grapples with his ambivalence toward debt enforcement, raising questions about state force and economic consent that still resonate.

Religiously and politically, I see our text learning as a small act of opposition to what the British philosopher Mark Fisher calls “capitalist realism”—as he defines it in his brief book of the same name, “the widespread sense that not only is capitalism the only viable political and economic system, but also that it is now impossible to even imagine a coherent alternative to it.” In his own plodding, measured fashion, the Rivash imagines a society that won’t coerce those who can’t pay, calling into question the political common sense of his time and ours.

—Allen Lipson


Allen Lipson: What brought you to this conversation about debt?

Eleni Schirmer: What drew me into the work is the question: What is debt, and how does it become this means of moral and social control that sanctifies violence and justifies coercion? My entry point into this, like so many people’s, was probably reading David Graeber’s Debt: The First 5,000 Years. Graeber says debt’s power is rooted in the very flexibility of the concept. Debt is shifty; one person’s debt is another person’s asset. To see debt as something that can be made over and over again in different ways for different times is incredibly helpful for organizing purposes—we’re always trying to draw out that debt is socially constructed.

Sparky Abraham: One of the things that has been inspiring for me in working with the Debt Collective and helping people with debt-related issues has been connecting the work to broader movements and longer time lines—to take it out of the narrow tunnel vision that we often get in when we’re dealing with our own debt. Coming to this conversation, I’m thinking about questions like: When is a debt unjust and when can we refuse to pay? What’s the role of the state in enforcing a debt? What kind of violence can be used, if any? What’s the same or different about our current moment in terms of debt?

Allen: Let’s dive in. I chose this niche text, a teshuvah by the Rivash. A teshuvah is literally an answer—a rabbinic Q&A, sort of like a Dear Abby. A petitioner writes a question to the rabbi and the rabbi writes a response drawing on precedent and particular textual sources. I love this teshuvah literature because it’s dialogical, it’s narrative—you’re able to get a certain depth of emotion.

The Rivash was born to a mercantile family in Spain in the early 1300s at a time of rising Christian antisemitism. Alongside several other leading scholars of the Jewish community of Spain, he spent almost a year in prison on unknown charges until he was proved innocent. He wound up fleeing widespread anti-Jewish riots, ultimately landing in Algeria. This letter was written around 1380 and concerns themes that are still extremely relevant today—imprisonment, intercommunal conflict, and Christian hegemony in relation to the state. In the passage we’re going to read, a rabbi named Isaac Alitansi has written to the Rivash with his question as a sort of appeal to a superior court. In traditional Jewish fashion, I’m going to ask each of you to read the passages aloud.

Eleni reads.

This is sent from Huesca, a city in the kingdom of Aragon, in modern-day northern Spain. The question is: Reuven borrowed from Shimon[1] under the law of alfarda.[2] The Christian government of Aragon enforced that law, which said that if one didn’t have any available assets to pay with, they’d get thrown into prison. Now, Shimon the lender demanded his money from Reuven, and Reuven didn’t have it. Shimon asked the court to throw Reuven in prison because of the debt. But Reuven claimed that physically seizing him would be illegal, since nowhere in Torah law do we find a Jewish person getting physically forced into bondage. So the judge asked me who the law goes with.

Christine Sun Kim: How Do You Hold Your Debt, 2022, charcoal on paper, 44 x 44 in (detail)

Allen: So, what is going on in this case? How would you put it into your own words?

Eleni: Reuven has borrowed money from Shimon and hasn’t paid him back. But the reigning laws, which are Christian, say that if you can’t pay back a loan you can be physically seized. Shimon is invoking that law and demanding that Reuven pay him back. When Reuven can’t, he demands that Reuven be physically seized, but Reuven contests this, saying that according to Torah law a Jewish person can’t be seized into bondage.

Allen: My question for you both is, how is this case similar to or different from what you’ve encountered in your own experiences with debt organizing?

Eleni: This is basically every debt situation we deal with. People are being forced to pay for something they don’t have the means to pay and are resisting. Often, it’s not through moral righteousness but through material reality: “We can’t pay and we won’t pay.” What I’m seeing in this passage is a bit different. It’s, “We can’t pay and we shouldn’t be made to pay at the cost of our basic rights.” This is closer to the position of the Debt Collective: We oppose the punitive ways people are forced to repay debts, especially around basic needs like college or health care.

Sparky: One line around debt is, “Well, you borrowed it, you agreed to it, so you’ve got to pay it.” The question in this context seems to be whether there is an action you simply can’t take to enforce a debt, even if somebody has agreed to it in advance, as the case seems to be here. That’s a question I’m constantly arguing about as an attorney, saying, “Yeah, maybe the contract said this thing, but contracts can’t say that. That’s illegal, that’s unenforceable.”

Allen: There are a couple of themes I’m hearing. One is the question of legitimacy—when is an agreement legitimate? What is consent? Let’s see what the Rivash has to say.

Sparky reads.

The Rivash answers: The law goes with Reuven the borrower. No one can conditionally agree to be physically seized, for others to physically hurt him, or for the court to coerce him. One proof is that the Talmud says about a wage worker: “He can walk off the job even in the middle of the day.”[3]

So it goes without saying that a condition that one be locked up in a prison, what the Bible calls “a dungeon of those who sit in darkness,”[4] has no legal force. Another proof: Even when the court impounds a debtor’s possessions, the Talmud tells us, “We make arrangements for him. We give him food for a month, clothes for a year, a bed, a mattress”—and his shoes, and his tefillin.[5] And if he’s an artisan, we give him two of each and every tool of his trade, even if all his property’s been mortgaged.[6] Furthermore, the Torah says, “A handmill or an upper millstone can’t be taken as a pawn, because that would be taking someone’s life in pawn.”[7] Given all this, how could we possibly allow anyone to pawn out their very body, the body they’ll go out with in the marketplace and the streets in search of a living!

And Shimon the lender’s claim that the law of the kingdom is binding[8] has no weight whatsoever. It’s usually neither the law of the kingdom nor a law at all that a person should be physically seized for the sake of a debt. Only the alfarda has this rule. So if anyone conditionally agrees to go into debt for a loan based on this law, our Torah rules that the condition has no legal force.

Allen: What do you make of these two proofs—the worker and the debtor? Are they helpful or unhelpful for thinking about the kinds of debt experienced today?

Sparky: I really appreciate the analogy between the debtor and the hired worker. People so often get into debt in order to replace insufficient wages. One of the ways I’ve come to think about debt is that it is a claim on future labor: We’ve sold our future labor for something we need now.

Christine Sun Kim: How Do You Hold Your Debt, 2022, charcoal on paper, 44 x 44 in (detail)

Eleni: Even just the contents of the package that a debtor is entitled to when his other possessions are impounded are interesting—basic needs are provided for. When one garment gets threadbare, there will be another to replace it. It’s the inverse of the conditions we find ourselves in today. Debtors often have basic sustenance wiped out from them: Social Security garnished, houses put liens on or the deed sold off, water shut off. Being indebted is a license to take away those provisions. What’s more—and this is really one of the key differences—people go into debt in pursuit of social welfare, to get health care, to get housing, to get an education. They’re becoming indebted for seeking some path to try to obtain social welfare, and when they can’t pay for it, they’re punished. Here they say you need to give an artisan double what they need to pursue their trades. Today, instead of enabling people to continue practicing their craft, debt repayment is disabling people, like when not repaying law school loans leads to disbarment or not repaying student debt gets your transcripts withheld.

Allen: I feel ambivalent as a scholar here. On the one hand, all of the potentially radical conclusions you’re sharing are present in the text: The Rivash at least implies that state coercion to enforce work contracts or debt may run up against basic moral and religious obstacles. But it should be noted that the reality on the ground was more conservative. It’s clear that the rabbinic literature assumes a fundamental equality between the two parties, and that they’re talking about a precapitalist society. I don’t even know what they would have to say to these massive financial arrangements of debt that we see today. The conditions for, say, large-scale student debt just weren’t there. The basic medieval opinion as laid out in the Shulchan Aruch, the code of Jewish law, is that a parent doesn’t ever have to spend more than 20% of their annual income on school for all of their children; the obligation falls first and foremost on the community. But medieval Jews—sometimes pawnbrokers or merchants, but often poor townspeople—turned debts against each other all the time. And other sources reflect that conservatism: Major authorities like Maimonides and the Shulchan Aruch take the responsibilities of a borrower to a lender, or of a worker to an employer, extremely seriously. As we’re about to see, the Rivash himself runs into some resistance when he actually tries to put his principles into practice.

Eleni reads.

The truth is that in our city, the judge’s order borrowers thrown in prison when they’re in debt, in line with a community decree. (The community also made a second decree that a person could be thrown in prison for failure to pay not just debt, but any sort of monetary claim made against them,[9] or forced to give property as security against a claim.) I tried to stop them from enforcing this decree, since it’s against Torah law. But they said, “This is an economic decree against scoundrels, and it makes sure that borrowers still have access to loans.”[10] So I left them to their practice. However, one might say that the court could possibly pressure or imprison a borrower who’s assumed to have assets and flees.

Allen: What do you make of this community leader­ship’s arguments that if we make it too easy on the borrowers, lenders won’t want to lend, which will ultimately be bad for the borrowers?

Sparky: You go back to the 14th century, and you just hear the same stuff! This is a very well trod argument used today by lobbyists for payday lenders who say, “If you restrict us down to only several hundred percent interest on loans, that means we’ll be able to make fewer loans, and then people who use our loans to get their medicine or college education won’t be able to get it. So you’re actually hurting the people you’re trying to help by not letting us make massive profits off of them.” It prescribes or at the very least assumes a continuation of some form of economy where debt is necessary for people to meet their needs.

What’s interesting is that part of what the Rivash was getting at with the bankruptcy package was: What’s the point of punishing the borrower? It doesn’t do anybody any good. It’s just punitive. But here he is saying, “Well, I don’t know, maybe we have to punish people because otherwise they’re getting off too easy.”

Eleni: One thing that stuck out to me was the explicit distinction between how debtors with assets are treated relative to debtors without assets. It suggests that when you have both debt and assets, you’re more likely to be punished, to be thrown into jail. Whereas today, if you have both debt and assets, you can leverage your debt in different ways than if you have debt without assets.

Allen: My first read of the line about the borrower with assets felt morally intuitive for a moment. Of course, if someone has the money to pay it back, and they run away, you’re gonna punish them. I wonder whether the two of you would push back against that reasoning?

Christine Sun Kim: How Do You Hold Your Debt, 2022, charcoal on paper, 44 x 44 in (detail)

Sparky: This goes back to some of the discourse around the foreclosure crisis, which is this idea of the strategic defaulter who has the ability to pay and just doesn’t want to for purely self-interested reasons: “My house is underwater so they can keep it.” With the many clients I’ve had over the years, I have never encountered somebody with such a simple situation or solution. I’m not sure they exist. Of course now there are people who are refusing to pay their student loans for political reasons, but that seems very different. For one, they’re doing it at great personal risk, because you can’t simply walk away from your student loans like you can, in some circumstances, walk away from a mortgage. But even if purely self-interested strategic defaulters do exist, my thinking is that your lender is doing everything they can legally—and sometimes illegally—to collect as much money from you as possible. And in doing that, they’re also charging you based on the idea that you’re going to do everything you can to pay them as little money as possible. That’s what risk-based pricing is: They charge you more money if they think you are more likely to find some way out of repaying. So why would you do any different?

Allen: We come back to this question of the limits of enforcement in this next section.

Sparky reads.

If the borrower is poor, though, and has nothing left to pay, it’s very clearly forbidden to throw him in prison and afflict his spirit. Consider: The Talmud teaches that even walking by a borrower to shame him into paying is certainly forbidden. It says: “How do we know that one who has lent a sum he knows his fellow can’t repay is forbidden even to walk by him? Because the Torah says: ‘Don’t be like a creditor to your fellow.’ ”[11]

And how can a court be required to help the lender with a task that the Torah forbids? All the more so, since the condition to be thrown in prison or anything like it has no legal force, as I’ve written above. I can’t see any legal way to physically seize a borrower with nothing to repay with—unless the borrower swears in advance to put himself in jail and not leave until his debt is paid. This would be like the existing practice of ostage, where a person swears to be physically seized as part of an oath.[12]

Allen: This last note about “ostage,” or house arrest, is particularly fascinating—the use of the Catalan word in Hebrew letters.

Sparky: One of the things I really appreciate about this text is that it complicates the idea of what the state is. This is a question about Torah law within a Jewish community that is also within the violent power of some broader Christian authority. Who has the power to enforce the contract? Here’s the Rivash giving his opinion, and it’s a little bit more complicated than just, “What does the state think?”

Allen: And again, keep in mind that the Rivash is going to get kicked out of Spain by force within ten years.

Sparky: Still, at the beginning of this passage it seemed like the Rivash was saying there’s no basis to physically seize a borrower even if he can’t pay, but by the end he comes back and says, “Well, I don’t know, maybe if he has some stuff, and he flees . . .”

Eleni: Yeah, he sort of walks it back: “A little means testing might be okay.”

Allen: So this last source the Rivash brings—“Lo tihyeh lo k’nosheh,” “don’t be like a creditor”—is basically ignored by later authorities, and you can see why; it would make any system of debt enforcement extremely difficult. What are your reactions to that source, the reading of the Rivash, and his ultimate conclusion that throwing someone in prison for not being able to pay a debt is totally against Jewish law—with this weird exception of the ostage situation?

Eleni: Well, I did like the cheeky thing of turning creditor into a pejorative: “Don’t be such a creditor, man.” I’d like to bring that back.

Sparky: This is so rich: “Since surely even walking by a borrower to shame him into paying is forbidden.” That is a more nuanced and realistic understanding of the psychology of debt than we often get now. It makes me think about contemporary American law, where we often have to jump through a lot of hoops in order to show some concrete financial harm to somebody from illegal debt collection tactics, just in order to get in the door in court and make them stop.

Allen: This actually comes up in a 20th-century Haredi responsum. The rabbi, Moshe Stern, imagines a guy who’s lent money to a fellow congregant in a synagogue and who wants to know, given this source, “How can I continue to sit next to him? In the synagogue, when I’m walking before him, he’s going to be embarrassed. Do I have to go to another synagogue?” And the rabbi writes, “You don’t have to take that so literally. Going to the other synagogue would also make him embarrassed.” In any case, the social pressure there is very real.

But I wanted to return to ostage for a moment. Either because he is convinced it’s the best public policy for borrowers, or because he lacks the power to oppose the lenders, the Rivash realizes he’s going to have to come up with a heter, or leniency, to permit the enforcement of loans in some way. His best shot to thread the needle of allowing some form of coercion might be ostage, where the borrower is freely consenting to the arrangement of being a hostage. Do you buy this? Is this real consent?

Christine Sun Kim: Long Echo, 2022, charcoal on paper, 44.5 x 88 in (detail)

Eleni: We often find in our work that people act as though they have taken a version of this oath: They are willing to walk themselves into the jails, whether or not the jail should be there. That’s the fundamental organizing project we’re engaged in: trying to tell people, “You don’t need to promise to dispossess yourself, you don’t need to pledge to imprison yourself, imprison your future, imprison your money.” The Rivash maybe offered this as a little loophole, but I think the majority of people today—even people who are consciously aware that their loans are usurious, who are unable to pay them back, who are planning to go on a debt strike—even these people will oftentimes say, “I would pay it back!” They want to be seen as abiding in good faith negotiations.

Sparky: I can kind of see the needle the Rivash might be trying to thread. But that whole first section about the fact that it’s both forbidden and unreasonable to restrict people’s freedom for not paying back a debt—it’s hard for me to understand coming back around to be like, “Maybe if somebody agrees with that, it’s okay.” It creates fake agency, because the reality is, if you tell people that the only way they can get money to pay their bills is to swear an oath to put themselves in jail if they can’t pay it back, they’re gonna do it. We see this often now with health care debt, student debt, utility debt, transportation debt: There are all these structures that make it seem like you’re making choices, but in really looking at the material circumstances, it’s not actually a choice.

Allen: I feel a lot of appreciation for the Rivash here. He is caught between a rock and a hard place. He has his community, he has the Christian government, and he has his conscience—plus his personal experience of a year in prison. Also, the sources themselves, as he’s noting, are not always crystal clear. What comes up for me is, is it possible and practical to live in a society that takes the Rivash’s initial vision seriously, that is not founded upon some form of coercion in borrowing and lending money? What would that even look like?

Sparky: I’m tempted to take that back to Graeber. The thing that’s particularly bothersome for me about these systems is the degree to which they have overrun everything else. If we were living in a far more egalitarian society—one in which people had the ability to provision themselves with their basic needs, and your creditor went to your synagogue as opposed to your creditor being Citibank—I would feel less worried about coercion. Some form of reasonable coercion, some form of restrictions that you can place on yourself—this is just the basis of contracts, in that you commit yourself to something in the future. The place where it goes off the rails is where you start getting into situations where the power is imbalanced between creditors and debtors, just like the power is imbalanced between workers and bosses.

Eleni: In this text we don’t know exactly what the debts are. But we presume that they’re financial, that it’s about money. We opened with questions like, what actually is a debt? And it feels much more important to me to say that we have a debt to history, we have ecological debts, we have ancestral debts. With the financial ones, one of the things that is so different now is the securitization of claims: One person’s debt is another person’s millions.

Sparky: And still the conversation in this text sounds so familiar! Creditors pushing the bounds of collection tactics, the shame dynamic, the same arguments about how more debtor protections will reduce “access to credit”—it’s all here. Maybe we are just doomed to keep having the same debates over and over.

Eleni: What feels somewhat different in the text is that there’s someone who does have a moral pillar, someone pointing to an authority and saying, “Maybe debt doesn’t need to be a license to coerce.” If a hired worker can walk off the job halfway through, then the oppressed are licensed to resist by violating the terms of an agreement. I want more of that.

Jewish Currents contributing writer Raphael Magarik contributes to the creation of this column.

1

“Reuven” and “Shimon” are generic legal names similar to John Doe and Jane Doe. With minimal context, it’s hard to say whether we’re talking about an exchange between peers or professional moneylending.

2

The Arabic word “alfarda” refers to a tax leveled by the state against minority groups—at this time Jews and Muslims.

3

For example, if a worker is hired for eight hours, and walks off the job halfway through, they can’t be legally prosecuted and have a right to compensation for the time they put in (Bava Metzia 10a). This is a core passage of Jewish labor law, especially for 20th-century debates around striking workers’ rights.

4

Isaiah 42:7

5

Tefillin are ritual apparel for daily prayers, a costly leather set of boxes with handwritten scrolls inside. Note that the debtor’s “bankruptcy package” includes not only physical possessions, but religious and social needs.

6

Bava Metzia 113b

7

Deuteronomy 24:7

8

Halakha treats state law as binding unless it contradicts Jewish law.

9

For example, if one were to negligently burn down a neighbor’s house and didn’t have the money to replace it, this court would consider throwing them in prison.

10

Literally, “not to shut the door
against borrowers.” This is an age-old rabbinic principle first invoked in the first century CE by Hillel, who eliminated the sabbatical year’s loan forgiveness program.

11

The Torah verse is Exodus 22:24,
and the Talmud passage comes from Bava Metzia 75b. It is an unusual statement: Taken literally, it seems to suggest that taking action to collect a debt is legally forbidden. The key post-Talmudic legal authorities (Maimonides, the Tur, the Shulchan Aruch) all mention it at the start
of their sections dealing with debt, only to proceed to explain at length exactly how debt should be collected.

12

The medieval Christian institution of ostage (in English, “hostageship”) meant confining a borrower to his own house or a “house of hostages” if he failed to repay a loan. Before receiving the loan, the borrower would take an oath along these lines: “If the time for repayment comes and I don’t have the money, I swear not to leave the city’s hostage house until I’ve gathered it.” On a formal level, this differs from the case under discussion in that the borrower makes an oath to God rather than to a lender, and in that hostage houses often involved a shorter and less severe level of confinement than prisons. Nonetheless, it serves a similar function.

Allen Lipson is a rabbinical student and community organizer learning at Hebrew College and the Yashrut Institute. He has organized with UNITE HERE and Faith in Action, and his writing has been published in Review of Rabbinic Judaism and Zeramim.

Sparky Abraham is the legal strategist for the Debt Collective and the founder of Jubilee Legal, a debtors’ rights law practice in California.

Eleni Schirmer is a writer and postdoc at Concordia University’s Social Justice Centre in Montréal. She organizes with the Debt Collective.

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