Jewish Wisdom on Reparations and ‘Teshuvah’

In recent years, many cities have established commissions to study and implement reparations to compensate African Americans for the egregious harms of slavery and what followed from it. Cities such as Evanston, Ill.; Detroit; St. Paul; and Asheville, N.C., to name a few, have begun to act to repair the plethora of ways in which African Americans have been intentionally disadvantaged by laws and policies that caused them grievous harm, and often took their lives.

On Sept. 30, 2020, the California Legislature passed AB3121, establishing the first statewide Task Force on Reparations, whose purpose was to “study and develop reparation proposals for African Americans, with special consideration for African Americans who are descendants of persons enslaved in the United States.” The Task Force was charged to gather the voluminous evidence of the harmful effects of slavery from 1619-1865, and the lingering effects of slavery until our own day; to “recommend appropriate ways to educate the California public” about their work; and to “recommend appropriate remedies,” based on 12 categories of harm, including enslavement, racial terror, political disenfranchisement, housing segregation, educational inequity, environmental racism, an unjust legal system and the wealth gap. Crucially, the task force also hired four academic economists to quantify these impacts, where possible, in order to convey to the legislature and the public the extent of the harm done.

On June 30, 2023, the Task Force concluded its work by issuing a Final Report, including scores of recommendations to the State Legislature for its consideration. The conversation now moves to the public square, where citizens of different opinions will seek to influence the legislature’s thinking and action. Even in the famously blue state of California, a robust debate is unfolding.

In this context, Jewish communities are organizing to raise the voice of Jewish Californians and bring the wisdom of Jewish tradition to bear on the collective conversation, and to persuade the legislature of our moral convictions on this matter. Many have written eloquently about the clear congruence between the idea and practice of reparations, on the one hand, and Judaism and the Jewish experience, on the other.[i]

There are three chief reasons for this:

1. The Prohibition on Benefiting from Theft

Jewish law is very explicit that it is forbidden to benefit from stolen goods. Examples of such texts are here:

It is forbidden for anyone to benefit from an article obtained by robbery even after its rightful owner has despaired of its return, if one knows for certain that this object was obtained through robbery. What is implied? If one knows for certain that a particular animal was obtained by robbery, it is forbidden to ride on it or plow with it. (Maimonides, Mishneh Torah, Book of Damages, Laws of Robbery and Loss, 5:2)

When a person obtains a house or a field by robbery, it is forbidden to pass through it or enter it. This applies even merely to seek shade or shelter from the rain. (Ibid, 5:3)

If we come across objects that were stolen, even stolen by someone else, we are unquestionably obliged to return them. Of course, the Torah explicitly commands that we return lost objects (Deuteronomy 22:1-3), but the Rambam wants to clarify the special case of an object or animal that had been stolen before it came into our hands. To derive benefit from the stolen object is to be an accessory to the crime. We may not be enriched by theft and injustice. This prohibition even applies (in the second text above) to deriving minimal benefit from a stolen house, as in temporarily seeking shade or shelter in it.

In a contemporary context, these texts suggest that we are forbidden from gaining advantage from buildings, roads and businesses that were built using stolen labor. Arguably, the American economy as we know it is substantially built on the basis of slave labor (and the banishment and destruction of Native American lands and communities). By this logic, a great many of the benefits generated by the American economy we live with are stolen goods, and therefore forbidden. Just by participating in this economy, we are benefiting from theft, unless we pay restitution to the owners whose goods, health and livelihood were stolen.

2. Jewish Morality is Communitarian

Jewish tradition and practice are highly focused on the communal sphere. Although, of course, we have much wisdom guiding the spiritual life of the individual, to a striking degree, the language of Jewish texts is in the plural form. Even presumably intensely personal prayers of confession on Yom Kippur are recited in the first-person plural: “We have sinned, we have betrayed others, we have stolen, we have slandered, we have caused others to sin” — and on and on through 23 sins — all recited in the first-person plural. Everyone in synagogue rises and recites this prayer of confession again and again throughout the day of Yom Kippur, without asking, “Well, am I actually at fault for that one?” Someone in my community has surely committed this sin, and so the obligation to confess and atone is mine as well.

This is dramatically illustrated in a piece of ancient Torah law:

If the community leadership of Israel has erred and the matter escapes the notice of the congregation, so that they [the leaders] do any of the things which by God’s commandments ought not to be done, and they realize guilt — when the sin through which they incurred guilt becomes known, the congregation shall offer a bull of the herd as a sin offering, and bring it before the Tent of Meeting. The elders of the community shall lay their hands upon the head of the bull before God, and the bull shall be slaughtered before God. (Leviticus 4:13-15)

In the time of the desert mishkan, if a person sinned, they were obligated to bring sin offerings to expiate their sin. Interestingly, in our context, if the leaders of the Israelite community sinned, then the entire congregation is obliged to bring a sin offering. Individuals in the community may not say, “Why should I contribute my money to expiate a sin that someone else committed?” The sin committed by the leaders is collective and obligates everyone who is part of the community.

A more complex but fascinating example concerns a situation in which a dead body is found in an uninhabited area, not within the jurisdiction of any of the surrounding cities.

If, in the land that the LORD your God is assigning you to possess, someone slain is found lying in the open, the identity of the slayer not being known … . (Deuteronomy 21:1)

Then all the elders of the town nearest to the corpse shall wash their hands over the heifer whose neck was broken in the wadi. And they shall make this declaration: “Our hands did not shed this blood, nor did our eyes see it done. Absolve, O God, Your people Israel whom You redeemed, and do not let guilt for the blood of the innocent remain among Your people Israel.” And they will be absolved of bloodguilt. (Deuteronomy 21:6-8)

The people of the surrounding areas seem to need a ritual of absolution, in the presence of lingering doubt and guilt about the crime. The law states that the elders of the town closest to where the body was found break the neck of a heifer, wash their hands over the neck of the animal and declare, “Our hands did not shed this blood nor did our eyes see it done.” Through this enigmatic ritual, the community’s guilt is expiated.

The Babylonian Talmud (Sotah 46b) asks how anyone could have imagined that the Beit Din of the town had been implicated in the murder, such that they would have to proclaim that they had had no hand in the killing. Rather, the proclamation is understood to be metaphorical, with the leaders saying, “No one came within our jurisdiction whom we discharged without food and whom we did not see and whom we left without providing him an escort.

That is, the leaders swear that they did not fail to help a migrant in need of care who had come within their borders. Had such a person come to their town, they would have provided them with food and an escort in order to be sure no harm would come to them when they set out on their way.

I find this text heartbreakingly beautiful. Can you imagine a community in which the leadership could testify that no person in need in their territory temporarily could have left without receiving the help they needed to be safe and nourished?

For our purposes, though, the point is that the case of a dead body in an unclaimed area gives rise to the understanding that the whole community is responsible, even by sins of omission. Thus, the leaders can effect atonement for everyone.

3. ‘Teshuvah’ and Repair

Most of all, the theology and practice of teshuvah, usually translated as “repentance,” lies at the very heart of Jewish tradition and Jewish life. When we have harmed another, we are to undergo an elaborate process of atonement, composed of no less than seven steps.[ii] What follows is a description of these steps, each described first in cases of interpersonal harm, and then as applied to collective wrongdoing.

Step One. We must come to awareness about the transgression we have committed. We must realize that we have done this thing, not deny the truth by outright lying, minimizing or blaming others.

On the collective level, this step corresponds to the extended period of racial reckoning unfolding in our nation, unfortunately, followed by a furious backlash, not unlike what has unfolded at earlier stages of the movement for racial liberation. As a nation, we are struggling with the difficulty of becoming aware of our national misdeeds in the past and present. It is not easy work, and it is only the beginning of the journey.

Step Two. We must acknowledge that what we did was wrong and experience remorse. This steps beyond the claim that what we did was “no big deal,” or that the victim was just “being oversensitive.” We did this, and we must come to feel remorse.

Step Three. We must confess in public to what we have done.

Step Four. We must apologize to the victim, if possible, for what we have done. And if the victim is dead, Jewish law requires apology at the person’s grave. (Mishneh Torah, Hilkhot Teshuvah, 2:11)

On the national level, Steps One through Four are generally done at once. They can evoke powerful resistance, but this is the work that must be done, and we have recent historical precedents for this process. In 1988, President Ronald Reagan signed the Civil Liberties Act, compensating more than 100,000 Americans of Japanese descent who were incarcerated in internment camps during World War II. The legislation offered a formal apology and paid out $20,000 in compensation to each surviving victim. In 1997, President Bill Clinton issued a public apology for the medical torture inflicted on Black men (most of them by then deceased) in the U.S. government-sponsored “Tuskegee Experiment.” The statement also included promises for changes in medical practice, to ensure that such abuses would not recur.

Step Five. We must pay restitution. Words, even heartfelt words of apology, are not enough without returning what was taken or compensating the victim for the harm that was done. Some of these harms can be quantified, so compensation is possible — for example, for the loss of property and the loss of opportunity to build wealth by purchasing a home with government assistance.

Some of the harm inflicted on Black Americans, during slavery and to this day, includes loss of honor, disenfranchisement and criminalization. Such losses are not easily quantified. But a full reparations process must include the non-monetary goal of restoring victims to the situation of their lives before the offenses, or to the kind of life they might have had without the crimes of racism.

The California Task Force has considered monetary payments to descendants of enslaved people. (For many people, the logistics and cost of such payments make a reparations program impossible.) However, the Task Force (and cities around the country) also envisions positive investment in policies and structures that will create opportunities long denied to Black Americans as a central part of the reparations process. Such interventions are reparations in a broader sense of the word: Not only cash payments to descendants of enslaved people, but laws and policies that would restore the opportunity and dignity that Black people have been denied in this country since 1619.

Words are not enough without returning what was taken or compensating the victim for the harm that was done.

Step Six. In Jewish tradition, payment of restitution is not enough. What is required is a transformation of the heart. As individual sinners, we must undergo what the tradition calls “soul-reckoning.” We must deeply explore the part of ourselves that allowed us to transgress in these ways and what needs to be done to change ourselves so we can never act that way again.

So, too, the process of reparations requires a transformation of the soul of America. But we need not wait until the national heshbon hanefesh is complete. A great deal of ethical repair can be done while the national reckoning continues to unfold.

Step Seven. The final step of the teshuvah process is the test: When we have the opportunity to cause the same kind of harm again and we choose not to do so, then and only then is our process of repentance complete. For an individual, this means that the needed inner work is durable.

This step corresponds to what in international law is called “guarantee of non-repetition,” a component of reparations included in the UNHCR resolution on “The Basic Principles and Guidelines on the Right to Remedy and Reparation.”

Thus, the well-known system of teshuvah for individual repentance has clear and compelling analogues in the case of collective harm.

Resistance

We have heard expressions of resistance to the idea of reparations.

“I didn’t construct the systems of racist oppression. My ancestors weren’t even here when those systems were created.”

“Why should just Black people be entitled to reparations? My people have been oppressed, too.”

“How could we possibly compensate an enormous number of people for unfathomable losses that have taken place over 400 years?”

To these questions, there are compelling answers in Jewish tradition:

1. According to the laws of teshuvah, we are responsible to pay restitution even for debts and obligations incurred by our ancestors and by the society to which we belong. If you value your American passport, if you vote in American elections, if you sing the national anthem, then you are part of American society, and therefore share culpability with the American collective of which you are a part.
2. We are responsible to pay restitution to the descendants of those harmed even after the victims have died, even if creative arrangements need to be made to effect the payment. (Mishneh Torah, ibid)
3. Yes, the debt owed to descendants of American slavery is enormous and daunting. A beloved Jewish moral principle applies here: we are not obligated to complete the task, but neither are we free to desist from it. (Mishnah Avot, 2:16)

The California Reparations Task Force has made scores of recommendations to the California legislature to create new support systems for Black people in California, to invest in communities that have been ravaged and marginalized by a racist society. These proposals, if enacted, would change a wide range of state and local policies that have disadvantaged Black people in education, residential segregation, medical care, political disenfranchisement, an unjust legal system, environmental racism, the wealth gap and more.

Such investments represent reparations in a broad sense, seeking to restore collective opportunity and dignity to Black people and Black communities. Members of the Task Force believe in cash payments to direct descendants of American slavery, but they are not recommending such payments at this time. Even infusions of resources on the level of policy and community development are imagined as a multi-year investment by the state. A dedicated 1% of the overall state budget, spent over the next 10 to 20 years, would provide a meaningful way to address the enormous debt owed to Black Americans.

Thus, we must not be deterred by the reflexive exclamation that reparations would simply be too expensive to even consider. When we recognize the depth and breadth of the debts that are owed, and the many ways in which reparations can be offered, we have a path forward.

The Jewish Experience of Reparations

One final word must be added. Jewish thinking about reparations must include reference not only to Jewish text and theology, but to the Jewish experience. Obviously, Jews were the beneficiaries of a massive reparations program by West Germany after World War II.

It is well known that Germany paid large sums of money to survivors in very partial atonement for the crimes of the Shoah. What is not so well known is that the agreement was made not with individual survivors but with the State of Israel.

Immediately after the end of the war, Chaim Weizmann, on behalf of the Jewish Agency, submitted a demand that Germany pay reparations to the Jewish people for the crimes of the Holocaust.[iii] In 1951, Israel’s Foreign Minister, Moshe Sharett, restarted the negotiations with the Allied powers, ultimately resulting in the payment of $845 million: $100 million to be allocated by the Conference on Jewish Material Claims Against Germany to individual survivors and the remainder to the State of Israel. The funds paid to the state were to pay for Israel’s purchase of oil from the United Kingdom and chemical, industrial and agricultural products and metals from Germany.[iv]

In our context, it is extremely important to note that reparations were paid not only to individual survivors, as crucial as those have been, but to the State of Israel, as the representative of the Jewish people. Reparations were paid by one nation — not by individual perpetrators — and paid to a collective entity representing the victims.

Reparations are completely aligned with Jewish law, theology and experience.

Surely, it requires a stretch of moral imagination to envision a meaningful reparations program for Black Americans hundreds of years after their ancestors were enslaved. But the example of German reparations to Israel demonstrates — in the heart of the Jewish experience — that reparations are owed to the class of people to whom the victims belonged. This fact should open the collective mind and heart of the American Jewish community to a reparations program for Black Americans in the 21st century.

The California Reparations Task Force has provided a fine model for other localities, states, and ultimately, the federal government to follow. Fair-minded people can certainly disagree about specific recommendations. But on the fundamental ethical obligation, there can be no question. The way forward has been demonstrated by the two years of voluminous and penetrating work done by the Task Force. I hope that the California state legislature will do what is required and that others will follow.

Most of all, I hope that the Jewish community will move beyond superficial objections and recognize that on many levels, reparations are completely aligned with Jewish law, theology and experience. As my colleague Rabbi Heather Miller, an accomplished teacher of Judaism and DEI work, says: “If you believe in Torah, you must believe in reparations.”

[i] See Aryeh Bernstein, “The Torah Case for Reparations”; Aryeh Bernstein, “Are We Responsible for the Sins of Our Ancestors: The Case for Reparations, Part Two”); and Rabbi Sharon Brous, “Why Jews Should Support Reparations for Slavery,” https://www.latimes.com/opinion/op-ed/la-oe-brous-reparations-slavery-jews-holocaust-20180307-story.html, Rabbi Toba Spitzer, Slavery and Its Atonement, to name a few, as well as the resolutions of the RRA and Reconstructing Judaism).

[ii] See Abramson, H. M. (2017). Maimonides on Teshuvah: The Ways of Repentance. Retrieved from https://touroscholar.touro.edu/lcas_books/1; Louis E Newman, Repentance: The Meaning and Practice of Teshuvah, Jewish Lights (2009) p. 78.

[iii] https://www.jewishvirtuallibrary.org/german-holocaust-reparations

[iv] Ibid.