Debt discharge and the Bible

It might be appropriate to give one word (or two) of explanation why the following deliberations about a rather unpractical subject are devoted to an eminent practitioner such as the honouree of this “Festschrift” who has developed mastership in handling the legal technicalities of the entire field of insolvency law. First of all, the author of these lines trusts in the intellectual curiosity of the honouree who knows very well that behind all technicalities of the everyday work there is a huge background of cultural history which usually gets out of sight but which yet, occasionally, might unfold its powerful impact in unforeseen and unforeseeable situations and circumstances and which constitutes throughout the fundament of the entire insolvency and economic system.

Secondly, the modern insolvency law has become so much dominated by efficiency considerations as developed by the law & economics movement that not only the danger of a disastrous one-sidedness emerges but that this very danger has repeatedly already materialised; the US-American cases of “Johnston & Johnston” or of “Purdue Pharma” are notorious witnesses to this trend towards an instrumentalization of insolvency law for highly egoistic purposes.^[1] In sight of this danger, a reminder is needed that not only insolvency law is a legal instrument which tries to handle a situation with enormous social implications but also that the full understanding of insolvency law should be based on a multiplicity of strands – and one of which is theological. Others such as the historical, the anthropological, or the social one will not be dealt with in this article.^[2]

Occasionally, one finds concerns or even criticism when lawyers begin to talk about the Bible, thereby presupposing certain interpretations of certain biblical sources. In such contexts one gets the feeling that lawyers should get away, at least in their professional capacity. As understandable as this attitude might be, it should not blind us from the insight that the Bible is a historical text which contains innumerable information beyond and outside of the primary message of founding a religion. Apart from that it should be borne in mind that the entire Old Testament is a book of law for the Jews, but also the Christians do find there their Ten Commandments, among other prescripts. Moreover, the Old and New Testament gives us valuable insights into life in general in those days.

Take, for instance, the – even under modern standards – unbelievable travels of Paul. The truly impressive number of kilometres walked by the apostle through the enormous width of what nowadays would be called Near East and Eastern Europe^[3] is a strong evidence for the success of the Roman emperor Augustus’ policy of creating peace in the entire Empire. Another example is the trial of Paul,^[4] and even more so that of Jesus.^[5] In the first case, we find a nice example for the applicability of the Roman law rule of the provocatio ad populum, in the second one of the procedural rule confessus pro iudicato habetur.

Regarding the provocatio one might add as a legal historian the astonishment whether it really sufficed for Paul to ask the famous question “are you allowed to beat a Roman citizen?” to get out of the critical situation before the Roman captain. Or whether it was necessary for him to submit some proof for his claim? We then find that, indeed, Romans had testationes, i.e. some kind of “passport”. Regarding the trial of Jesus, one might arguably assume that the very same trial would have had the same outcome if it had taken place in any other part of the Empire. Imagine how much enmity could have taken out of the conflict between Christians and Jews.

Since the Bible, i.e. the Old Testament as well as the New one, emanate from and are placed into a real world with real people with their real concerns, fears, and angers, it is not surprising to find there people who are debtors and those who are creditors. In a book of similar character and from some centuries later, in the Qur’an, it is, thus, not surprising to find scattered throughout the text stories about debtors and creditors – including some remarks about debt forgiveness and, thus, about our present topic. Prof. Jason Kilborn has recently written on this subject^[6] so that we can concentrate here on the Bible alone.