Turn It Again: Torah Wisdom for Today
In Pirkei Avot, a book of maxims in the Mishnah, an ancient rabbi, Ben Bag-Bag said about Torah study, “Hafokh bah, va’Hafokh vah, d’khola bah.” Turn it over and over, for everything is in it. For two thousand years, that’s what Jews have done. Here is another turning.
The Spirit of the Law
אֶ֨ת־כַּסְפְּךָ֔ לֹֽא־תִתֵּ֥ן ל֖וֹ בְּנֶ֑שֶׁךְ וּבְמַרְבִּ֖ית לֹא־תִתֵּ֥ן אׇכְלֶֽךָ׃
Do not lend your money at advance interest, nor give your food at accrued interest.
Leviticus 25:37 (The Contemporary Torah, JPS, 2006)
In a time of rising antisemitism, many old stereotypes have been given new life. Indeed, some of the claims levied against the Israeli government by anti-Zionists can seem like a reworking of medieval accusations against Jews, claiming that they are money-grubbing. Part of the historical basis for this springs from Leviticus 25:37, which forbade charging interest on money. The Catholic Church deemed this usury and made it illegal for Christians to lend money to other Christians while charging interest. This would have ground the European economy to a halt. To prevent this, the Church declared that since Jews were not bound by Christian religious law, they could be compelled to offer interest-bearing loans to Christians. Even though Jews were forced into this role by the dominant power structure, blame was placed on them rather than on the Church.
This law against interest has to be understood historically, for in Biblical times, people sought out a loan only when they became incapacitated or after a crop failure threatened their ability to eat. The Torah and Jewish ethics found it distasteful to profit off another person’s misery or their subsistence-level needs. It is forbidden to charge interest in such a circumstance. Issues arose, however, as economies became more advanced and as individuals sought out capital not for basic survival but to advance their business interests. If people were not permitted to earn interest while lending capital in these instances, it would have gone against the spirit of the Biblical law, which was to ensure people’s well-being.
Because of this, Jewish law needed to circumvent the prohibition against ribit, or charging interest for legitimate business ends. Jewish legal scholars created the heter iska as a workaround by restructuring the transaction as a business partnership rather than a loan.
All legal systems depend on such loopholes, yet it is essential that these legal solutions don’t end up appearing as legal fictions, or people will lose faith in the law. In Judaism, the term for such legal devices is ha’aramah. A ha’aramah is only permitted when the outcome is consistent with the spirit of the law or produces an outcome that is either ethically neutral or commendable. Extending individual’s capital for their legitimate business ends is a moral good that can benefit both the recipient and the person or bank giving the loan.
Jews today depend on this process whenever we sell our chametz before Passover. There are three ways that Jews can avoid transgressing the prohibition of possessing chametz during Pesach. We can consume, destroy, or sell all chametz before Passover. The path we chose is ethically neutral, which is why we are permitted to sell chametz.
Oftentimes, we invoke the phrase “spirit of the law,” when it seems someone is engaging in unethical behavior that is technically permitted. The heter iska reminds us that sometimes we can only fulfill the intention of the law by subverting it.
