I remain convinced from the historical record that virtue of forgiveness was one motive for the Bankruptcy Act of 1841 (here), a first in any nation in the common law tradition. It is entirely possible that early 19th century American Evangelicals misconceived the prerogative of the State to legislate forgiveness of debts. Applying a little interpretive charity, however, we could say they lacked a certain precision of expression and sought not to make creditors forgive but to implement another, cognate virtue. But then what legitimate moral power couldjustify the discharge?
We could first observe that the decision to provide any legal remedy for breach of contract is not mandatory. From what I have written hereand here, I have argued that some remedy for lack of contractual fidelity is consistent with a series of widely held Christian doctrines (those of the creation of human beings in God’s image, the dominion mandate, and sin). Others in the Christian tradition have concluded that the power described in the Noahic covenant to execute capital judgment on account of murder (Genesis 9:6) justifies the implementation of lesser sanctions to rectify violations of other primary rights. (I address that more controversial topic in an upcoming article on human rights.) If the State has the power to provide a remedy for breach of contract, so the thinking might go, then it has the power to withhold that remedy as it sees fit.
But wait. If it is consistent with the notion of justice to provide a remedy for breach of contract, how could it be just to exclude certain breaches from the scope of the remedy? But for fuzzy edges that can be addressed by equity (epiekeia), it would be unjust to exclude otherwise remediable wrongs from the scope of legal sanctions. In for a penny, in for a pound. Once the civil authority has decided to lend its coercive powers to the rectification of wrongs, it should not arbitrarily limit those powers. It is inconsistent with the notion of justice to fail to afford it.
Yet perhaps another look at the Noahic covenant will give us a clue to a moral justification for the bankruptcy discharge. The rigor of the justice of the life-for-life principle of Genesis9:6 may be extenuated by the prologue to the divine covenant recorded a few verses earlier: “And while the Lord smelled the pleasing aroma, the Lord said in his heart, ‘I will never again curse the ground because of man, for [although] the intention of man’s heart is evil from his youth.’” (Genesis8:21a) Even though extensive human perversity engendered God’s judgment in the Flood (Genesis 6:5), God immediately thereafter promised not to judge human beings again by a flood regardless of their unabated evil intentions (and resultant evil actions). What gives?
Does this text indicate that God is unjust? Is God wrong not to judge postdiluvian human wickedness as he had that in the Flood? It’s all in the timing. The book of Romans alludes to the divine forbearance of the Noahic covenant when we read that “because of your hard and impenitent hearts you [humanity in general] are storing up wrath for yourself on the day of wrath when God’s righteous judgment will be revealed. He will render to each one according to his works . . .” (Romans 2:5-6) Clearly, the Apostle Paul does not equate divine forbearance with divine forgiveness. It merely delays God’s inevitable punctilious judgment.
Yet forbearance has another, more salutatory effect: it provides time for repentance and thus forgiveness. Such seems to be the teaching of the Petrine correspondence where it states that “the Lord is not slow to fulfill his promise [of judgment] as some count slowness, but is patient toward you, not wishing that any should perish, but that all should reach repentance.” (2 Peter 3:9) Justice delayed in not justice denied, at least from the divine perspective. In reality, justice delayed has a double effect: it permits the continual compounding of wrongs that will ultimately result in judgment while at the same time creating space for repentance, the condition precedent of divine forgiveness.
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