24 June 2011

Justice, Forgiveness, and the Bankruptcy Discharge – Part 3

Let’s complete the circle. An unexcused/unjustified breach of contract often exhibits the vice of lack of fidelity. It is also a wrong against the aggrieved party. Such a wrong creates in the aggrieved party a secondary right, a right of correction. In the state-centric world of the 21st century, the State lends its coercive powers to enforce this secondary right and rectify the wrong by creating a legal remedy. In so doing, the State enacts a species of justice.

Many modern States, the United States leader among them, withhold the legal remedies they have created upon certain conditions, e.g. , the federal Bankruptcy Code grants the so-called discharge of debts. Notwithstanding both the imprecise language of some of its Evangelical supporters in the 1830s and its broad-sounding name, the discharge does no such thing. It simply withdraws the recourse of the aggrieved party to legal remedies to vindicate her secondary rights of correction. The discharge under §524 of the Bankruptcy Code goes even further and disables the aggrieved party even from exercising many non-legal corrective rights. But none of this amounts to a “discharge” or forgiveness: the debt and other secondary rights of correction remain (witness the acknowledgment in Bankruptcy Code §524(f) of the power of the discharged debtor to repay the discharged debts).

The bankruptcy discharge does, however, bring the creditor up short. It also reminds the debtor, or at least it should, that opportunity for repentance (and thus forgiveness and reconciliation) remains. That most debtors fail to repent should not surprise us. After all, most human beings fail to utilize the divinely created window of opportunity recorded in Genesis 8:21.

Thus I conclude that the bankruptcy discharge is indirectly “grounded in” the virtue of forgiveness. The discharge neither amounts to forgiveness nor can it compel the wronged person to forgive. Instead, it directly instantiates the virtue of forbearance. It provides the breathing space within which repentance, forgiveness, and ultimately reconciliation can take place.

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