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Martha Minow: When Law Should Forgive: On the Limitations of Teshuva

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SUMMARY

This series is sponsored by Mira and Daniel Stokar, and this episode is sponsored by our friends at Shikey Press, a boutique publisher of Jewish content disrupting the traditional model of book publishing.

In this episode of the 18Forty Podcast, we talk to Martha Minow, a legal scholar and a professor at Harvard Law School, about forgiveness, law, and the boundaries of teshuva. In a world of ubiquitous transgression, our desire for justice and healing feels perpetually unsatisfied. Why is reconciliation seemingly so hard to get right? In this episode we discuss:
  • How is doing teshuva different from confessing in court?
  • What is the role of reparations in reconciliation?
  • Why is forgiveness such an important part of human culture?

Tune in to hear a conversation about why teshuva transcends our systems of justice.

Interview begins at 17:13.

Martha Minow is a legal scholar and professor at Harvard Law School, where she has taught since 1981. Martha serves as the 12th dean of Harvard Law School, was a candidate mentioned to replace Supreme Court Associate Justice John Paul Stevens upon his retirement, and has served as chair of the MacArthur Foundation. Martha clerked for Judge David Bazelon of the United States Court of Appeals for the D.C. Circuit and then for Justice Thurgood Marshall of the Supreme Court of the United States, and is the author of many articles and books on matters of civil procedure, constitutional law, and human and religious rights.

References:

Warren Studies Talmudic Law Here

The Rabbi As Symbolic Exemplar by Jack H. Bloom

Makkot 13b

When Should Law Forgive? by Martha Minow

Netivot Olam, Netiv Hatshuva 2

Resisei Layla 3

Takanat HaShavin 8

The Sunflower: On the Possibilities and Limits of Forgiveness by Simon Wiesenthal

On Apology by Aaron Lazare

Mea Culpa: A Sociology of Apology and Reconciliation by Nicholas Tavuchis

David Bashevkin: 
Hello and welcome to the 18Forty Podcast where each month we explore different topics, balancing modern sensibilities with traditional sensitivities to give you new approaches to timeless Jewish ideas. I’m your host, David Bashevkin, and this month we’re exploring the topic of teshuvah, repentance. Thank you so much to our series sponsor, Daniel and Mira Stokar. I so appreciate your generosity, support, and friendship.

And thank you so much to our episode sponsor, our friends at Shikey Press, a boutique publisher of Jewish content disrupting the traditional model of book publishing. Over the past few years, Shikey Press has published more than 50 books from Munkatch to Mizrahi and has published books from some of our generation’s leading Torah giants and academic scholars. To see their catalog of books, check out shikeypress.com, established by Menachem Butler and Rabbi Dr. David Shabtai in memory of Dr. Isaiah Shikey Bard, and join the revolution.

Let me just add in one word. This isn’t part of any script. On a personal level, Menachem has been an incredible friend to me. I think I could trace back nearly every major opportunity in my life in recent memory to man’s friendship support. He’s a creator of opportunities, he’s a friend promoter, and I’m so grateful for his support and friendship. Thank you so much, Menachem. This podcast is part of a larger exploration of those big juicy Jewish ideas, so be sure to check out 18forty.org. That’s one 18forty.org, where you can also find videos, articles, and recommended readings.

Depending on what your metric is for judging what the most famous Talmud lecture of all of history is, one could argue that on Friday night, September 13th, 1957, just about 65 years ago, there was the most famous Talmud lecture that was ever given, and if the metric you use is publicity, this is absolutely number one.

Why do I say that? Because on the front page of the New York Times of the next morning, this is Saturday, September 14th, 1957 on the front page, albeit beneath the fold, it’s not above the fold, it’s right beneath the fold, but on the bottom of the page, but on the front page, the New York Times reported on a Talmud lecture that took place at JTS, the Conservative seminary. Why was this on the front page of the New York Times? It’s not really because of what was said or how important the Talmud lecture was. It was really because who was in the crowd, not who was giving the Talmud lecture. The front page headlines, some September 14th, 1957 reads as follows, “Warren studies Talmudic Law here” and Warren of course is referring to Chief Justice Earl Warren and there is a picture of him with Dr. Lewis Finkelstein, who was the chancellor of JTS at the time.

Chief Justice Earl Warren, Earl Warren was the chief justice of the Supreme Court of the United States of America. He and President Harry Truman paid a visit to JTS. Now, JTS at the time was a conservative seminary Rabbi Saul Lieberman was giving lectures at the time and they showed up for a Friday night services, Shabbat services as well as to hear Talmud lectures afterwards. As the New York Time reports, and this is directly from the article, the Chief Justice don the Black Skull cap to attend Sabbath Eve services at the seminary in deference to the Orthodox and Conservative Jewish tradition of keeping the head covered in houses of worship. So you had the Chief Justice of the United States Supreme Court put on yarmulke, go to Shabbat services, and then they had dinner together with Rabbi Saul Lieberman, who was the dean of the seminary at the time. There’s a wonderful recollection, I’m so grateful to my friends, both Jake Sasson and my friend Elliot Kaufman who both called to my attention the recollection.
It’s actually Elliot Kaufman’s wife. She deserves the credit for this. But at that Shabbat night meal, somebody wrote a recollection, a student of JTSs named Rabbi Jack Bloom. Rabbi Jack Bloom, who was a graduate of JTS. He wrote a book called The Rabbi as Symbolic Exemplar, and he actually was at this meal and he has a very funny recollection where he writes, so it came to pass that I had Shabbat dinner with Professor Finkelstein, Chief Justice Earl Warren, President and Mrs. Harry Truman and Professor Saul Lieberman, and then he adds, this is the best anecdote I probably have ever heard. “I watched in horror as Professor Lieberman sucked tea through a sugar cube and then he adds in parentheses, Ma Yoru hagoyim? What will the gentiles say?”

I remember we always had sugar cubes in my refrigerator. Honestly, I thought they were just really sugary sucking candies. I would pop them into my mouth. You don’t see them so much anymore, but I remember my grandparents would drink tea with sugar cubes in their teeth. I guess that’s not the way that you are supposed to drink tea. Maybe that you’re supposed to put it directly into the tea glass, but I certainly remember people who did that, but they’re delicious sucking candies and if you ever do have dinner with the President of the United States and or the Chief Justice of the Supreme Court, then maybe from this story do not suck tea through that sugar cube because of course Ma Yoru hagoyim? What will the Gentiles say? One of my favorite anecdotes. Why am I bringing this up? Because although this made the front page of the New York Times because of who was in the crowd, Chief Justice Earl Warren and President Harry Truman, the Talmud lecture that Professor Lieberman gave is actually also really important and really significant.

What did he talk about? He actually spoke about the principle that’s known in the Talmud. I’ll say it first in its Hebrew and then of course I’ll translate: “A person cannot self incriminate themselves in court.” You cannot walk into court and confess all of your crimes. That testimony is not accepted in court. Why doesn’t the court accept that form of testimony? Why can’t you self incriminate? What is the issue with that? So it was actually kind of vague. The Rambam, Maimonides, seems to give both kind of a psychological explanation. We think a person is not really of sound in mind if they’re describing their own sins, their own crimes, their own difficulties, and he also says that it is a blanket rule that emerges from the Torah.

What Professor Lieberman did in this lecture, and I wasn’t there and I don’t have a recording, I really only know from later recollections, but he actually gave a very novel suggestion for why you can’t self incriminate in court and he said something that I think is quite remarkable and that is because the very act of self-incrimination is an act of teshuvah.

When you walk into court and you say what you did wrong, that confession in and of itself is an act of teshuvah and therefore once you’ve come in and confess what you have did wrong, that cannot incriminate you because the very confessional act is in and of itself a form of repentance. Now, this is obviously very significant in American Jewish history. You have to understand that in American law we also have rules about self-incrimination, and it was 10 years later that Chief Justice Earl Warren was the justice who penned the famous Supreme Court ruling of Miranda versus Arizona, which I’m sure all of our listeners are familiar with because of the Miranda rights which protect self-incrimination. Chief Justice Earl Warren actually in that decision makes reference to Jewish law, quotes Maimonides, I believe he quotes Rabbi Lamm. He does not Saul Lieberman.

But it’s hard to ignore the fact that this lecture about the limitations of self-incrimination in court and self-incrimination being in and of itself, an act of teshuvah may have percolated just a decade later is when Miranda v. Arizona was codified in, decided by the court really less than 10 years later, it was June of 1966, but I don’t think this is significant just because of the potential repercussions that it had for our current Miranda rights. It was actually the source of a very lively debate.

Many city blocks upwards in New York City. There is of course another Yeshiva, which I am affiliated with called Yeshiva University and in their beis medrash was Rabbi Joseph B. Soloveitchik who is known by many as The Rav. Joseph Ber Soloveitchik. He’s name is in Hebrew in English and Yiddish, different names. A lot of people just call him The Rav in America. His students, he was actually Rabbi Saul Lieberman’s cousin through marriage. Rabbi Saul Lieberman married Judith Lieberman who was a granddaughter of the Netiv who was part of the Soloveitchik family. They married in to the Netiv who was the Rosh Yeshiva of Volozhin. He married into the Soloveitchik family. I think I have that correct. But they were actually cousins through marriage. They undoubtedly knew each other though they obviously had very different approaches to Talmud study and Rabbi Soloveitchik found out about this.

I know this only because of Herschel Shachter has a work called Nefesh HaRav where he has recollections about Rabbi Soloveitchik and his rulings and his ideas and he said Rabbi Soloveitchik wasn’t reading the New York Times where it was on the front page, but he was actually reading Der Morgen Zshurnal, a newspaper, a Yiddish newspaper. I guess that’s the newspaper of choice when Yiddish is your first language as it was for Rabbi Soloveitchik rather than the New York Times. I don’t think that was the time where people like my father were banning the New York Times in the 1950s. My father has a long going feud with the New York Times, nothing riles his blood, gets his blood pressure pumping like something involving the New York Times. But Rabbi Soloveitchik, I assumed, just spoke Yiddish and Rabbi Soloveitchik read this in Der Morgen Zshurnal, which actually reported on the actual subject matter of what the lecture was about, and he said, this is impossible.

There’s no such thing as teshuvah in front of court. There was no such idea as coming before a court and being sentenced. And then you come in with, I don’t know, a kittel, a white yarmulke, you’re saying prayers in a loud voice and the court says, oh wow, this person did teshuvah. Unbelievable. So moving what a scene. You can imagine somebody convicted in a what’s known as a beit din, a Jewish court and it would come in the next morning. I don’t know, they’re wearing a Na Nachman yarmulke, they’re full-blown, “I did full teshuvah. I thought about what I did wrong. Let me walk out.” And the court lets him walk out. Rabbi Soloveitchik says that is never the case. We do not accept teshuvah in a Jewish court of law. Rabbi Soloveitchik actually quotes a medieval commentary for why in fact teshuvah is not accepted in court.

It’s kind of an obscure discussion that I don’t fully want to get into. There’s many questions for why Rabbi Soloveitchik justifies this principle by quoting it. There are actually passages in the Talmud quite explicit that seem to also say that we do not accept teshuvah in court. You can look that up if you are a fan of the Talmud. If you want to see it inside. It is the passage in the Talmud in Makkot on page 13b, which seems to say rather explicitly I have speculated for why he specifically quotes that to justify this principle. But that is really getting into the nitty-gritty that we don’t need to talk about now, but listeners can write in for why do you think Rabbi Soloveitchik quoted that and not a clear passage in Talmud on Makkot 13b? A little brain-teaser for some of our more Talmudic inclined listeners.

But beat as it may, we had this really fascinating disagreement that came to the fore on the front page of the New York Times, the most famous Talmud lecture I think of all time.

I don’t know any other Talmud lecture that made the front page of the New York Times, but there Professor Saul Lieberman said that you cannot incriminate himself. The reason why self-incrimination is not accepted in court is because that in of itself is an act of teshuvah. While Rabbi Soloveitchik disagreed and said, no, there are limitations to where teshuvah can be accepted. Why am I talking about this now? Because this is actually the subject matter of our guest, not in Jewish law, but in American law. Our guest professor Martha Minow, who’s the former dean of Harvard Law School, an incredibly accomplished scholar. Wrote a book called When Should Law Forgive, which of course my friend Menachem Butler who I dedicated this episode to, brought this book to my attention. It is an absolutely fascinating book and actually not such a difficult read at all.

It is made for a popular audience and it is all about how the law should integrate acts of repentance when a wrongdoer a criminal comes in to court and in a heartfelt, sincere way, confesses saying, I did wrong, I messed up, reads a statement, is that something that a court should consider?

She does not quote this debate between Professor Saul Lieberman and Rabbi Soloveitchik, but she does in fact really highlight a lot of the issues that come up when you try to consider, well, how would the law consider forgiveness? How would that even be possible if by coming into court and acting repentant and sincere and heartbroken, wouldn’t like every single person come into court and do that and get off and minimize their sentence? Is it right to be skeptical of somebody’s self-incrimination? She doesn’t quote this, but in fact, the Noda BiYhudah, Rav Yechezkel Landau, a very, very famous champion of Jewish law, a fascinating life. You can read his PhD by Rabbi Dovid Katz. He actually writes in a response of that, that is the reason why we do not allow teshuvah in judicial courts because if we did accept it, then every single criminal would walk in and start clapping Al Chet.

They’d start Yom Kippur davening inside after every single time that they’re convicted, they would say, okay, they would take out their Yom Kippur machzor and start clapping over their chest. This is ridiculous. There’s no way that teshuvah can have a place in court. I actually think the most moving answer is something that the Maharal, and in a similar way Rav Tzadok both addressed this. The Maharal’s in the second chapter, Netiv Hateshuvah. Rav Tzadok talks about this in a few places, but in Resisei Layla in chapter three as well as in Takanat HaShavin in chapter eight, they both say that teshuvah actually transcends and is beyond what we are doing in court. Court is very of this world and is about your relationship with society. It is about your relationship and fixing your wrongdoings with society. There is something that transcends that beyond even society itself and that is your relationship with God, your relationship with self.

And while criminal court is about running and maintaining a lawful society over there your shuvah has no place. This is not about a relationship, this is not about the divine necessarily. This is about integrating somebody into society in a way that they can be trusted and really taking responsibility for their wrongdoings, for their crimes as opposed to a relationship with God actually transcends that. And just because in a lower court someone would be unable to have their teshuvah accepted in court, that does not preclude a relationship with God. That higher level of teshuvah in a way, even if you’re going to be sentenced, even if you’re going to pay the dues for your crime, that does not mean that the gates to a relationship with God are ever shut. And in a very similar way in her book, she really deals with a very profound question, one that people may think is not relevant to them if you are not a judge or you are not a lawyer, but it actually is relevant to us because it is the question of how do we differentiate between judicial retribution and communal reconciliation?

This is a question that is roiling our community right now in a million different places. Anytime there is a lawsuit, whether it’s with a family, whether it’s with a Jewish institution, there are always two tracks that sometimes can be combined into one, but sometimes they veer. And that is the question of how do I hold somebody accountable in the court of law? And then there is a second track, so to speak, which is how do I create reconciliation? How can there be a reconciliation between perceived wrongdoings and the actual people who were wronged? And those two are not always mutually exclusive, but they can be. The law cannot always forgive exactly as Rabbi Soloveitchik said, you can’t just walk into court and you’re found guilty, you say I’m sorry, all is forgiven, all is healed, all is reconciled. We need other mechanisms besides the court because the court as Rabbi Soloveitchik insisted, is not always equipped to assess, to bring reconciliation and to bring healing.

And that is why it is such an absolute privilege and pleasure to speak to Professor Martha Minow, a world-renowned scholar to reflect and consider the limitations of repentance and ask ourselves when in fact should the law forgive. I guess I wanted to begin by asking the question. You touch upon it, but I think it underlies the entire book, which is what drew you to this subject, meaning you are a law professor, there are so many aspects of the law that are maybe even more sophisticated or impressive or detail-oriented tax code and bankruptcy law. And instead you chose to write a book on forgiveness that almost touches upon aspects that aren’t even purely legal, that some of it are psychological sociological. Why did you decide to write a book specifically about forgiveness?

Martha Minow: 
I have too many reasons to explain why I turned to the subject, but I’ll start with a couple. One is I had worked and produced a book quite a while before addressing responses by different countries and societies to mass violence, to genocide. And I entitled that book Between Vengeance and Forgiveness and compared the role of criminal trials, reparations, truth, commissions. And as I talked with people about those ideas where it seemed to me these structures were finding a path between revenge on the one hand and expecting people to forgive on the other. A lot of people said to me, what’s so bad about forgiveness? Why aren’t you pursuing forgiveness? And this was a question that I heard in many parts of the world because I had the chance when I was dean to speak about these issues in Asia, in South America, in Europe. So that’s one another is it’s just I’m Jewish, so you can’t help but think about forgiveness.

Certainly during the Days of Awe, it’s a major preoccupation, but also just in general. I mean it’s one of the ways in which you try to cultivate how to live with other human beings. So that’s another reason. And a third reason is that it just strikes me that in the United States, we are right now in a period where the legal system, particularly the criminal system, has swung very far in the direction of revenge and punishment and more so than at other times in this country and more so than other countries. And it struck me that the language of forgiveness cuts across political divisions, religious divisions, regional divisions, and might be a way to explore these issues.

And then just one more, I do think that comparison is one way that we learn, certainly a way that legal work proceeds. Let’s compare this case with that case, this field, with that case, that field. And it was very striking to me that we have much more forgiving attitudes when it comes to bankruptcy than we do with criminal law and more forgiving internationally than we do domestically. So that also was a reason for doing this work.

David Bashevkin: 
Your book is entitled with a question, meaning when should law forgive? And I guess I have read the book and maybe I didn’t read it carefully enough, but it doesn’t seem to land on a very concrete time and place. This is exactly when it should forgive. It’s really a reflection on the role of how forgiveness should at least be a very real factor that we should be grappling with. I’m curious if that was deliberate to phrase it as a question in picking and choosing the title, and did I misread your thesis? Meaning did I misread the conclusion of the book? It didn’t seem to me that you answer the question. It seemed to me that the book is almost bolstering the need for us collectively to ask this question.

Martha Minow: 
No, you have it completely right. And I am someone who believes that the questions are more important than the answers. And what we do by framing a question is we put something on the agenda. And also law in this respect is not so different than other fields, certainly not different than theology. There is no one right answer. These are enduring questions. There’s no formula. There’s no formula for when to forgive someone interpersonally. So it should not be a big surprise. What seems to me very much in need is to, as you say, make it a part of the consideration. So our legal institutions, at least in this country, have a lot of techniques where forgiveness is possible, but in law schools we don’t even talk about it. It’s not developed as a field. It’s not in the checklist of judgments and analysis. And I really am calling for that. And yes, I do believe that in certain instances there should be more forgiveness than there has been, but it’s not going to be by a formula.

David Bashevkin: 
Whenever I see someone or an aggrieved party bring a lawsuit to address their claims, my initial reaction is one of the lawsuit should be one of last resort. If your goal is to achieve reconciliation, if your goal is to acclimate yourself into a community, even let’s say with civil rights, I know there were so many efforts outside of the legal sphere and now in our community there are so many parties that feel marginalized and they’ll bring a lawsuit hoping that they can get not just equal rights, but they want to be reconciled with the community. And my concern always is that once we use the mechanism of the law, because it is not infused with the compassion that is associated with forgiveness, legal outcomes have winners and losers. That’s how it works. A couple that lawyers up in the divorce proceedings, there’s going to be a winner and there’s going to be a loser.

How can people proceed legally and get legal addressed, legal whether it’s lawsuits, monetary custody, and do that without losing sight or without letting go completely of the capacity to achieve reconciliation? I’m thinking on firstly the smallest scale, a couple in divorce proceeding, and I’m not just talking about arbitration. When they really lawyer up, I want everything, you want everything, there’s going to be a winner and a loser. This happens in businesses, partners, lawyer up. The very phrase lawyering up is like, no one’s looking for forgiveness right now we’re looking for a winner and a loser. What are the mechanisms that we could use within the law that could achieve forgiveness through the law, not after the lawsuit’s over. And then they come back together a year later after the lawsuit and say, you know what? We said some really ugly things. What are the ways within the law that legal grievances can be addressed while also bringing reconciliation and understanding?

Martha Minow: 
It’s a profound question because it actually puts on the table what is the goal of conflict resolution and not everyone’s goal is reconciliation. And also there are some rights and wrongs and some things should not be negotiated and there are principles that should be recognized. That said, most of the law is not in court. Vast majority of what lawyers do or what parties do when they have a conflict is they negotiate and they negotiate in the shadow of what have been decisions or what are rules. And you mentioned arbitration. There’s mediation which is conducted without a third-party intermediary at all. But there are also many, many techniques even within a court system to bring the parties into the chambers and say, what are your real goals? Can we work something out? Or I’ll give you 30 days, you come up with a solution or else we’re going to trial, or there are experiments in this country and elsewhere to come up with other institutions in the criminal system, even restorative justice where everybody who’s affected by the alleged wrongdoing participates in constructing a forward-looking solution.

Or there can be decisions made by the parties to structure a contract where we agree to the following terms. But look, I don’t think conflict or even lawsuits are necessarily always bad because even vengeance isn’t always bad. It reflects the wellspring of a sense of justice and injustice, and that’s a very important recognition that there are rights and there are wrongs. And so I think that the win-lose dilemma that’s framed by adjudication by courts is real, especially because many problems are not all on one side. There are merits on both sides, but I don’t think that the sheer fact of there being a winner and a loser is always bad sometimes.

You mentioned the civil rights movement. How about trying people charged with genocide? I mean that’s not something to negotiate. I don’t think I have been very preoccupied, however, with a particular very current subject where I think the win-lose framework is a mistake, and that is the growing number of claims for exemptions on the basis of religious belief from laws that govern retail, stores that govern who a psychologist should treat that govern public accommodations, that govern healthcare, et cetera, et cetera.

And although I supported the Religious Freedom Restoration Act, I’m a big believer in religious freedom, if everybody in the planet can argue for I need an exemption because I have a sincere belief that’s in conflict with the government’s law, then we don’t have law. We don’t have a rule of law. So I do think though that courts are terrible places to resolve these matters because as you say, it’s a win-lose. And typically there’s some argument on both sides. Can’t we work out some accommodation? Maybe you can’t work on Saturdays, but can we work out a schedule where you can share some of the overtime with other people? Courts can’t do that. And other formats like the ones that we were mentioning, mediation, negotiation, they can negotiate, they can work out a solution. So I really wish that more courts would hesitate before proceeding in those cases and try to pursue these alternatives.

David Bashevkin: 
You had mentioned obviously the most heinous crimes, and maybe we could start with the largest mass genocide. This is not a theoretical, you talk about it a great deal in your book as it deals with South Africa and obviously as you mentioned, and as two Jews speaking together, it’s hard to avoid the questions of the Holocaust. I mean the questions of forgiveness and reparations following the Holocaust were dealt with in the book Sunflower by Weisenthal. I’m curious for you, there was a big debate in the state of Israel about accepting reparations from the government of Germany. Should we even allow them to have these reparations? How do you conceptualize the question of allowing and being filled, so to speak, getting some remuneration, getting some repayment, but also saying you’ll never be able to fully wash your hands of this sin. And then there’s a third factor that I really want to talk about a little bit more, which is the actual people who did the violence, the people who were most guilty, they’re not alive anymore, they don’t exist anymore.

The people in America, it would be slave owners, ostensibly, I would hope in Germany it would be the members of the Nazi party. Maybe a couple exist today, and obviously I’m not talking about neo-Nazi sympathizers, but the government weren’t alive, many of them during. So there are really three factors. Number one, by accepting you’re kind of allowing them to wash their hands of it, is that proper, and this is a question that’s obviously animating our country, the United States. Secondly, a lot of people who are forced to pay say, “I had nothing to do with this. I was born in the 80s. I don’t know from this.” How do you conceptualize these mass kind of entities, governments, organizations, when the guilty parties don’t even exist and maybe the crimes can never be fully forgiven?

Martha Minow: 
Again, a very deep and important question. I’m sure that I’m affected by the Jewish ideas about forgiveness. That real shuvah, real turning away from the wrongdoing requires action. It’s not enough to say something. It’s not enough to ask forgiveness. It’s about how do you behave. It’s about the action. And so in that sense, I think developing political and legal structures that encourage wrongdoers to come forward and say, I’m going to act differently, that’s a good thing. That’s not a bad thing. Harms are not just in the past. They persist in the present and they construct a future and undertaking steps that can make a different future that’s better for people on both sides of a harm. You raised though the question that when lots of time has passed and none of the individuals who were directly involved are still there, and the Holocaust is an example, American slavery is an example.

Even the apartheid is an example. Certainly with Native Americans, their treatment, there’s so many. I think nonetheless, even though particular individuals are no longer around the structures, the institutions, the practices, the expectations that we’re set in motion are not only around but persist. It’s very hard to see it, but to recognize that if you have white skin, you’re Caucasian in the United States, you’re treated differently than someone who doesn’t and you have a benefit. It can be called white privilege, whatever, but the taxis will stop for you. The stores will not lock up when you come to the doorway to ring the buzzer, et cetera. So it’s not so much about blame, it’s about how do we build a better future and who can participate in building the better future? That’s a little different than the post World War II reparations from Germany to Israel where lots of the people involved were still around.

And indeed the companies that participated in financing the final solution, the companies that benefited from their collaboration, they were around. So I don’t even think we have to go to this idea of constructing a better future and wouldn’t we all be better off. There I think there was very good justification for there to be a call for reparations. Then on the other side, should Israel accept them? I think that reparations can never make people whole. It can’t bring the human beings back to life. It can’t undo the harms, but it’s a step. So you suggest the problem is maybe they shouldn’t be accepted because it implies that people can wash their hands once and for all. I think that if we really face the problem, they can’t wash their hands once and for all, but they can take steps that will make things better. And in that sense, the same could be said about reparations in other contexts.

I do think that this time dimension, thinking not just about the past but about the future is very important and you raised reconciliation. That’s a future oriented goal or even just justice is not just about the past, it’s about the future. And I think reparations can play a role in building a better future.

David Bashevkin: 
I want to phrase this question a drop more personally, but it relates to me, and I think it relates to nearly anybody who is affiliated with an older organization. We have affiliations that have done wrongdoing in the past, whether it’s an old university, whether it is a Jewish organization, whether it’s a synagogue, if it’s old enough, somebody has done something that has hurt somebody and victims can come forward many years after, let’s say people were fired and people were let go and victims can come back and they can approach you and say, you are affiliated with this organization. That has hurt me. And I guess I’m really asking not on the organizational level because if they have rights and there’s a window to bring a lawsuit against a corporate entity or an organizational entity, it’s well within their rights to do so. But I’m curious about the affiliates and employees.

Sometimes on social media, people will resort and say, Hey, he works there, they work there. What do you think is the personal responsibility for employees of organizations that have done wrongdoings in the past, but you were hired and you weren’t even born when these things were happening. So even though there is still a window to be addressed legally, what responsibilities do you think lie on the personal level? Do you think it’s fair? Because I’ve grappled with this, I am affiliated with many organizations, many of which have done things of varying degrees of awfulness. I’m approached and I sometimes feel like I don’t know that I could say or do anything to help you. I wasn’t born when this was happening and I know I am affiliated, but I got to have a job. I have to work somewhere. Should I quit in protest?

Again, assuming that people were fired and there is a corporate entity still. What do you think is the personal responsibility of our affiliations to organizations? That the organization is old enough, they’ve done something wrong in the past, so where does that leave us who are current employees or affiliated in whichever which way?

Martha Minow: 
Well, of course I experienced this as well. I have worked in most of my career for Harvard University, which is 386 years old, and I currently serve as one of the participants in implementing a university report on Harvard and the legacy of slavery. Wow. So I’m spending a lot of time thinking about exactly this question. I wasn’t here 386 years ago and let’s be clear, at the time it was lawful slavery was lawful Harvard’s older than the country. It’s certainly older than the Civil War. It’s older than the abolition of slavery in Massachusetts, but I am in the institution. I benefit from being in the institution. The institution continues to benefit from the resources that were mounted not just by enslaved people’s labor, but by the financiers who financed the slave trade and the cotton industry and they contributed to Harvard. For me personally, I don’t think that the question is should I be paying money, but should I be doing something to make my institution actually accountable and build some kind of better response to the past?
Yes, so I am, is it ever enough? No, it’s never enough. But to be affiliated with an institution that has in the past done some wrong, if you have the ability to influence its policies, then that’s one of the goals that you should address. That said, I do think that this idea of a statute of limitations in the law is a good idea in general after a certain period of time, except for the most heinous crimes, there’s a time limit for victims coming forward because at some point the intuition you have, people have changed. It’s a different generation. I wasn’t even here, but even more you have to have some freedom from the Sword of Damocles hanging over your head, when will I be charged? What will be our responsibilities? But I said, it’s except for the most heinous crimes and where your institution, your group was involved in a heinous crime like slavery, like genocide, there is no statute of limitations murder.

There is no statute of limitations. These are ongoing obligations. I do also though think that one of the dilemmas that you point to, especially the social media example, is that we’re living in a time of taint, guilt by association, in an unnuanced, it’s a very primitive way to think about the world. It’s that you touch someone who touched someone who touched someone. So it’s treif, but there’s one thing to have a wall around the harm. This is walls around walls, around walls. I think that we need more nuanced, more subtle understandings about responsibility. Now, responsibility itself is an ambiguous term. Does it mean actual causal responsibility relationship to decision-making in action, or does it mean the ability to respond already? Already to ask that question is to invite a different kind of conversation. I think that the taint and guilt by association comes when people assume.

It’s always about the former. It’s always about who’s a bad person and let’s cancel you, and we don’t want to have anything to do with you and you shouldn’t have anything to do with that institution. That’s, as I say, a very simplistic way to think about the world. Most of the complex issues of right and wrong about the past are not so simple, but is there a responsibility in the sense of capacity to respond now? Yes. And that’s what the current day individuals who were not there 30 years ago, 386 years ago, there still are ethical obligations. What do you do now?

David Bashevkin: 
One thing that I have been thinking about, and I actually got criticized for just airing my own reflection, is the current state, how we punish even the most serious but white-collar crime. I don’t want to ask you because you may have very real position and effect to comment on any specific cases, though you’re certainly welcome to, but there have been very high profile sentencing around white-collar crime that it seems in our country the only tool we have learned how to use to bring justice is sentencing people to prison. And I wondered out loud, why hasn’t our country learned more creative solutions aside from prison? It’s very interesting, the notion of prison though there are a lot of other very vicious punishments in the Bible. The Bible, and even in Talmudic law does not really have a prison system. There were other ways that people can pay back.

And I voiced this out loud and I was accused of some of my more right-wing co-religionists who I love deeply, but I was accused pretty publicly of being some woke bleeding heart liberal, which I may or may not be. I just didn’t think that’s not where it was coming from. I was really coming from just like the utter lack of creativity. Yet I also kind of push myself really because of your book. Because when it comes to white-collar crime, and it’s not literally why it’s called white collar as far as I know, but white-collar crime is predominantly perpetuated by people who are white.

And it’s very easy to look at somebody who looks like me and has the educational pedigree that I have and lives in the same socioeconomic and has a nice home and a nice kitchen, and maybe they stole or their multi–billion-dollar company fell apart and they stole from investors. But I caught myself. Am I being sympathetic because they look like me or am I coming from a real place where we don’t have anything more creative than just locking somebody away? These are talented bright people.

I’m a big fan of Seinfeld. Two of my friends have a blog called Seinfeld Law where they analyze the episodes based on legal precepts. And in Seinfeld, Jerry and George pitch a sitcom, the show within a show, and the plot of their sitcom is that George and Jerry’s character, they get into some altercation and Jerry is sold to George to be his butler. He has to be his butler, and they try to sell this sitcom to NBC. And I said, Seinfeld came up with a half decent approach. I’m not saying that people should be sold, God forbidden into slavery, but I don’t know, why don’t we force them to work at the DMV for a couple of decades instead of locking them away in prison?

I’m curious how you think about number one, the sympathy that is for somebody like myself, educational pedigree grew up in a nice socio—so I questioned my sympathy, but I also have to hit, there’s got to be a better way than the way that we are dealing with white collar offenders. Can’t we put them to work on behalf of the government? These people know how to code. They have multimillion dollar educations. What do you think is preventing us from thinking and addressing white collar crime in a more thoughtful and creative way?

Martha Minow: 
One of my favorite New Yorker cartoons shows a judge with a big nose and a big mustache, and he is looking down from the bench at a defendant who has the identical nose and the identical mustache, and the judge leans over and says, “Obviously not guilty.” So the issue of sympathy and its differential application and bias that’s very present and Aristotle defined fairness as treating likes alike. The question is who’s alike and who’s not alike?

Sentencing in the United States is notoriously marked by discretion, and discretion opens up to bias. As a result, the federal courts are now governed by guidelines that really restrict discretion and that produces another set of criticisms because what’s alike and what’s not alike? Is it just the offense? What about the circumstance? This one has three kids. Where does that fit? So this is an insoluble problem in terms of what’s treating people alike.

You identify white-collar criminals, people who’ve been convicted of a white-collar crime, but what about all criminals? Why does this country have so many people incarcerated? We have more people just as a percentage of the population incarcerated than any other society in the history of humanity, not just today, but all of time. So it surely shows a lack of imagination. It’s hugely expensive. One reason that you have states like Texas, not exactly bleeding-heart liberal state experimenting with alternatives is that it’s extremely expensive. So when I said earlier that I think that the pendulum has swung too far to vengeance. We have a political system where people run to be sheriff or prosecuting attorney based on how many years they sentence people and convict people. We need other measures to judge our public officials. Besides how many years are people sentenced to prison? There are alternatives you suggest some that may have to do with tapping into people’s skills. Community service is an alternative.

Scandinavian countries are an example. Even for murder, they typically sentence someone to much less time than we do, and also to settings where people have educational options and other options. I think that developing more creative ideas is one of the solutions to the question, when should law forgive? If the only alternative is lock people up, that diminishes building a better future for everybody. Restorative justice framework that I suggested before is specifically devoted to that. If those who committed harm and those who were affected by it directly and indirectly are all together brainstorming, okay, what can we do to repair and to make a better future? The alternatives are limitless. What role can this person play in as you say, employment, but also education, also service, and also what actual obligations or help can others give that individual?

The creativity is on both sides. An example of restorative justice that I can share, there was a man who was at an automatic teller and he was removing money with his card and someone comes by and hits him on the head, tried to take the money, and the injury was so severe the individual died. So the offender was charged with murder and he was prosecuted for murder. And while the sentencing hadn’t happened yet, this was a court system and the prosecutor agreed that there could be a restorative justice process about the sentence and the wrongdoer. He meets in a room with the children of the man who died and with other people, and he apologizes. And then he tells his story, and his story is he had no money. He’s going to be evicted. He had a child. The children of the deceased were sympathetic, and they actually went to the prosecutor and they said, please don’t give him a life sentence.

He’s in a terrible situation. And they worked out something that was less than that. That’s an example. But even so, why was he in a situation where he had no money and he had a child? And what other things could the society be developing to prevent crimes like that? I would hope that we would develop justice systems that are not just looking backwards, but looking forward and asking, Well, what can we do to prevent this crime? And who else can act responsibility as the ability to respond? But I absolutely agree with you. There can and should be much more creativity, not just for white-collar offenders. There’s a lot of talent, there’s a lot of entrepreneurship, there’s a lot of creativity throughout all of society. What a waste.

David Bashevkin: 
I’m curious, and I wrote about this a few years ago in the Journal about reflecting on the successes and some of the struggles and challenges of the broad movements for justice. I was specifically talking about the Me Too movement and some of my concerns, though obviously the goals of the Me Too movement in preventing sexual abuse and manipulation in any way, I 100% wholeheartedly share. Some of my concern had to do with the way law and specifically HR departments were trying to broker forgiveness and reconciliation when I think very often when the law is dangling in the background or your employment is dangling in the background, instead, you kind of retreat to your corner and do the safest choice, which is usually to cover up to skirt around the law to do the exact bare minimum.

And my concern and question is, is the reliance on law, and I don’t just mean law, I’m talking about HR protocols and what we’ve seen in the last two years are relied upon to bring a more empathetic and sympathetic society. A lot of times it doesn’t cultivate sincerity and forgiveness. I’m sure both of us at some point have sat through a sexual-harassment workshop. We’ve both clicked through some online. I’m trying to imagine somebody very sincerely engaging with an online sexual-harassment disclaimer. And it would almost be like a Saturday Night Live skit watching somebody taking it seriously and sincerely and tearing up and being self-reflective. To even imagine it is almost comical, which itself is a sad reflection on how we’ve gone about addressing the ugliness that we all harbor in our lives.

And my question is, when you think about the steps that we’ve taken, have we moved closer to forgiveness, sincerity and real reconciliation or have some of these measures almost built barriers in our ability to achieve real reconciliation responsibility and authenticity in our organizational professional lives and more largely in society?

Martha Minow: 
Look, sexual assault and abuse, bullying just shouldn’t happen. So it’s not even about reconciliation. We want to prevent it. And what you’re identifying is really shortfalls in the mechanisms to try to develop prevention compared with the goal. Online tutorials is not a way to change a culture. It might be the dog who’s hitting the buttons. There’s no meeting of the minds, there’s no involvement of the heart, et cetera. That’s a failure of those who are trying to implement a worthy goal, what the methods are to actually change people’s hearts and minds. I don’t know. But it’s probably more effective to have sessions where people actually see a skit and try to evaluate was that unwanted? What are the rules? And maybe there should be rules about no romantic relationships at the workplace. What are the better ways to handle these issues? You can imagine we have this on campus in a very big way, and every student and every faculty member, every staff member has those trainings, and every year we have problems.

So we clearly have not solved it, but I’m not sure that forgiveness is the right frame. I think it’s about how do you change a culture? And law has some very crude tools. Most of those systems are adopted to try to insulate the relevant institution from liability by saying, well, we took these steps. That’s not a way to change a culture that’s about insulating from liability. So if you’re really serious about it, there are people, there are teams, there are even law firms that specialize in culture change usually involves leadership at the top.

But on the issue of sexual assault in particular, we are talking about real change in attitudes. Does no mean no? And it’s also on both sides. Do you have to say no? Well, yeah, you do have to say no. You cannot be a mind reader, right? That’s what I mean about role plays. But we are talking about changing people’s attitudes and expectations of what they were taught when they were growing up. And I think there’s much, much more work to be done there. And no, these systems are not effective and they can be counterproductive. They can turn people off. Again, I don’t think it’s about forgiveness or reconciliation, it’s about failures to actually come up with effective culture change.

David Bashevkin: 
I’m always fascinated by how writing about any topic affects somebody’s personal life. I once heard from somebody, and I’ve mentioned this before on 18Forty on the podcast, I heard from somebody who wrote a commentary on the siddur on the prayer book that ever since he wrote this commentary, he’s had a harder time praying. He’s had a harder time davening. Wow. And I’m curious for you, has apologizing and asking for forgiveness become easier and harder? And what has been your relationship? You don’t really talk a great deal about it in the book.

I’m curious if you have ever had to either ask or grant forgiveness, have you ever withheld forgiveness? And maybe you could talk a little bit on the most personal level that you’re comfortable about after reflecting on a book, both the before and after. How do you grapple with forgiveness in your own life?

Martha Minow: 
Well, you’re really asking at least two questions. One is whether writing about this subject has affected me and the other is just in my personal life, my relationship to this. Well, on the second I can say, have I been asked to forgive? Yes. Have I withheld forgiveness? Yes. Have I given forgiveness? Yes. Have I asked for forgiveness? Yes. Have I been given forgiveness? Yes. Have I been denied forgiveness? Yes. So look, I’m fascinated to learn that people who study large mammals, apes, have I identified forgiveness rituals within their communities. It turns out, do you need some mechanisms to deal with what will be the clashes and the harms and the hurts that large mammals inflict on each other? I think that we need much more practice on learning how to ask for forgiveness, how to apologize. I think that there are now contests for the most terrible non-apology apology, and we’ve all seen it.

If you were, I’m sorry, where is the taking responsibility? So certainly writing about this to go to the first question has made me much more conscious about that. That if I am engaged on one side or another with an apology and forgiveness, I’m much more conscious about is there explicit acknowledgement in a way that the one who was hurt recognizes? I think that we probably need more explicit instruction on how to apologize and how to forgive when to forgive, how to know that you don’t have to forgive and don’t have to feel guilty about not forgiving. The topic when I first started working on it in the nineties, was only available in the libraries at Harvard, at the Divinity school. There was nothing anywhere else. Now it’s an explosion. The medical school has huge amounts of information about the impact of forgiveness on people’s blood pressure, and there are actually length of life. And political forgiveness is a topic in the government department.

So I think that there is a recognition of deep wisdom. Every religion, every philosophic tradition, values forgiveness and apology they don’t all mean the same thing by it. I think it’s a good thing, and I am delighted to see so much more academic work on it. It does bridge into all of our lives, all of our personal lives. Absolutely. And I have a wonderful family, and now everybody sends me, Look at this TV show. They have an episode on forgiveness and you should watch it. And I’m delighted about that. I have lots to learn too. Also, I drive in Boston, so I have to learn how to forgive. And also I’m not forgiving because I drive in Boston.

David Bashevkin: 
There’s a show, I don’t know if this is the one that your family sent you, but I thought a lot about your book. I even tried to get the star of the show on, I don’t know if he’s going to come on, but there’s a show called Barry on HBO where the entire show is about a former assassin who tries to find some reconciliation. And the whole show is really a reflection on sincerity and authenticity because it’s set, the assassin becomes an actor. So the question of sincerity really animates the entire show.

Martha Minow: 
I’m so glad you mentioned sincerity because when I was first working on this area, I went to South Africa, which was in the midst of its now famous Truth and Reconciliation Commission, and I met with the commissioners and I said, I understand that you have a process to give amnesty freedom from prosecution for people who come forward and tell what they had done. I said, why don’t you require them to seek forgiveness? And it was fascinating to me, and it really affected me. The commissioner said, because then we’ll never know when it’s genuine. If we require it’s a contrivance. We will never know that it’s real. Whereas if we don’t require it when it is, people ask for forgiveness. When freedoms is granted, then it’s seen. There’s no legal reason for it, but it’s an obligation that people feel interpersonally or maybe it’s a gift of grace as some of the Christians would say. So I’ve learned a lot from that, and that really affected me.

David Bashevkin: 
Did that resonate with you?

Martha Minow: 
Totally resonated with me. And I am not a fan of legal systems, of legal rules, of judges even in this country who turn to a defendant and say, apologize, and then I’ll sentence you because it’s a performance. It’s not something genuine. There are even some legal systems in the world that demand the wrong word to kneel down, to enact a kind of ritual. As you say, that’s not about sincerity. But a Jewish thought is so interesting about the inner life versus the outer life and sometimes the outer life. We can’t change the inner life, but we can change the behaviors. So I don’t think the bowing down or even the asking of apology is so great necessarily, but there could be some requirement of acts, even if the inner life doesn’t change, that’s worth doing. And sometimes you do enough acts, it changes your inner life too.

David Bashevkin: 
My dearest friend, Menachem Butler, who you may know and-

Martha Minow: 
I do know, and I adore Menachem. Yes.

David Bashevkin: 
He invited me the one time I ever spoke at Harvard Law School, and I actually spoke about this issue as it relates to Jewish law, and it is a major question about what the role of teshuvah is before the Jewish legal courts and whether or not it’s even accepted, will it chain punishment? Most people assume that it will not be accepted. I wanted to just ask you about your own memories and reflections on Yom Kippur, the days of awe, somebody who grew up and whatever your affiliation was. I’m curious what your memories are of Yom Kippur, if there are any specific prayers or rituals that have stuck out at you. As somebody who spent so much time thinking about forgiveness, how has Yom Kippur informed your life and what are your memories, those formative memories about Yom Kippur that really stick with you?

Martha Minow: 
Well, the image of the Book of Life and who will be written and who won’t. So profound as a child thinking about that and feeling very intensely, oh my goodness, I better start apologizing to people. So that’s one. I was always perplexed, why is Yom Kippur after Rosh Hashanah? And so I’ve read some about that. I’m still very fascinated by that. But to have this period of time when you have a new year, but there’s still this period, the Days of Awe, what do you read? Who do you talk to? That’s very significant to this day. But probably the most significant was, and remains very influential for me now, is that for wrongdoing between people, you have to go to a person. Sins against God, you go to God.

That was such an insight and such a profound insight. And as I’ve gotten to know people who are of other religions, it’s really a different approach than some other religions take. But I actually had the chance to be on a panel with a senior person, Monsignor, in the Catholic Church. And I said that and he said, no, no, we want people to act differently as well and to talk with the humans that they’ve heard as well. But I said, well, what about you go and you confess and you’re told to say Hail Mary’s, and he said, well, we think that helps too. So it was interesting to learn about that.

David Bashevkin: 
I always end my interviews with more rapid-fire questions. I’m curious, aside from your own book, you have a very robust bibliography. I’m curious, what is a book that has really shaped your understanding of what forgiveness is about? And I’m talking on the most personal level, something for our listeners. Obviously the legal implications, and you talk about this as well in your book, but what are the formative books on forgiveness that really shaped your understanding of the concept?

Martha Minow: 
Well, as I said, when I started working on it, there really wasn’t that much and now there’s much more. There’s a book by Aaron Lazare, who’s a psychiatrist On Apology and a book by a man named Tavuchis on apology. Those two I found very, very helpful, but now I’m reading much more recent work on political forgiveness, for example, that I find very instructive and I don’t agree with everybody, but I have learned a lot. It’s not a book, but my own rabbi once gave a sermon in which he talked about atonement is at one mint.

David Bashevkin: 
Yes.

Martha Minow: 
I still think about that, and it’s this idea of reconciling becoming connected that has a very vivid idea.

David Bashevkin: 
The Hebrew word for forgiveness, mechilah, which happens to be a rabbinic neologism that was kind of invented by the rabbis. I write this in my book. It’s from somebody else’s suggestion, comes from the word chalal, which means to create space for another. To be mochel somebody means to create space for somebody else in your life, which is something that has always moved me into something. I always think about.
My next question, which is always strange to ask a former dean no less a dean of Harvard Law School. But if somebody gave you a great deal of money and allowed you to take a sabbatical with no responsibilities whatsoever, to go back to school and get a PhD, write a thesis in whatever subject you wanted, what do you think the subject and title of your dissertation would be?

Martha Minow: 
Well, first I have to say something about that definition about make space. Moshe Halbertal, who’s a great scholar. I learned a lot from him, and he describes Talmudic understandings of you have to be proximate physically so that there is the chance for someone to apologize and forgive. And that too had a big influence on me. So the making space ideas, isn’t it?

David Bashevkin: 
Yes.

Martha Minow: 
It’s so interesting. I would love to go back to school and study so many subjects, but the great secret, maybe not so secret reason to be an academic is that you can go back to school every year. So that’s what I do and I sit in on classes and I try to learn a lot. You mentioned that my book is kind of dabbling in a lot of different fields. That’s what I do. I’m very interested in history and biology. I’m interested in comparative religion. I’m interested in actually subjects like computer science right now. I got interested in whether forgiveness is possible in an algorithmic age if you have things being decided by algorithm. So it’s a good fortune to continually learn.

David Bashevkin: 
My final question, I’m always curious about people’s sleep schedules. What time do you go to sleep at night and what time do you wake up in the morning?

Martha Minow: 
I am very lucky to not need much sleep, so I go to bed between midnight and 1:00, 1:30. I get up between 7:00 and 8:00, so not a lot to sleep.

David Bashevkin: 
That’s great. Right within the bell curve that we have and I very much appreciate it. Professor Minow, thank you so much for your time, your thoughtfulness and what your scholarship has done really for society. It means a great deal.

Martha Minow: 
Thank you for the wonderful questions and the conversation.

David Bashevkin: 
If we assume for a moment that Rabbi Soloveitchik is in fact correct and likely in Jewish law, it seems that most people agree with the principle that teshuvah, repentance is not something that is accepted in court. And if we agree with that principle, a lot of people look at that and actually think like, oh wow, I thought shuvah would be more powerful, would be even greater, would be something that could overturn. There’s this wild question that Rav Herschel Schacter quotes in his work, Eretz HaTzvi. It’s a wild question. I’m going to say it just because it’s so fascinating. He cites it from the Piskei Teshuvah, which is a legal commentary that was asked the following question. There’s a principle that if you have a certain types of inappropriate relationships, the child that is born from that relationship is called a mamzer, which is usually translated as a bastard child.

I don’t want to get into all of the details of that. It’s a very, very painful part of Jewish law we try to avoid at all costs. Having a child that could have the moniker, a mamzer, which is actually sometimes used colloquially as a slur, like, oh, that person’s such a mamzer, but it’s actually a legal term, and somebody actually asked, I have a way to remove the status of all mamzerim, all children who have the status of mamzer. What am I going to do? This is ingenious like wild. It said it’s a child who was born out of an inappropriate relationship. So why don’t we suggest as follows, have people do teshuvah meahava, a teshuvah from love, repentance from love, which the Talmud says has the ability to literally take our sins and turn them into merits. If somebody repents from real love, perhaps that can overturn the illicit relationship that created this mamzer.

And now it wasn’t a sin anymore, it was a merit. And this child now no longer has that legal status, that terrible legal status that we really try to avoid at all costs in Jewish law. Unfortunately, of course, that does not work. And one of the main reasons why it doesn’t work is because teshuvah for our worldly actions does not work in that way. It is in some ways can be seen as a limitation on teshuvah. I actually look at it as the exact opposite. I look at teshuvah and the fact that it is not absolving sins in court. It’s not changing status of mamzer actually to be part of the strength, part of the transcendence of teshuvah itself. It means that even a criminal, even somebody who was convicted sitting behind bars, even somebody who had relationships that overturned their life and broke lives and broke commitments in all these ways, still has a pathway to teshuvah.

It means that teshuvah transcends, shuva is not a part of this-worldly process of taking responsibility. That is in your hands, you need to face the core. We need to take responsibility for what we do to heal our wrongdoings. But that doesn’t mean that a relationship with God, a relationship with the divine is ever closed to us. Teshuvah, there is always a window to the relationship with the divine, even the lowest of the low. Even somebody who has made mistakes that cannot be fixed, even somebody who is sitting behind bars in jail, there is still a possibility for repentance and the fact that it is not considered in court, while a limitation is actually a reflection on the transcendent relationship that one can have in their religious life. Our religiosity and relationship to the divine does not stop at the doors of our home or our perfect lives, but actually informs the very brokenness of our lives and that I actually find uplifting.

And I think there’s actually another very important lesson that emerges not only between the conversation between Rabbi Saul Lieberman and Rabbi Soloveitchik, but from the work of Professor Minow. And that is not how we see self-incrimination. What does it mean in court when you self incriminate yourself? But I think there’s a larger question of how we receive, how we hear self-incrimination when somebody comes to us and says that they messed up and says that they did wrong and pours their hearts out to a friend with honesty. I think in that circumstance, even Rabbi Soloveitchik would agree that this is not a formal beit din hearing, and over there, there is room to receive someone as a step towards teshuvah, as an act of teshuvah. And I think very often, and maybe it’s because we’re so many PR statements, so many apologies that we hear that we’re almost programmed initially to receive any apology with a measure of cynicism, with a measure of skepticism. Like, come on, is that really sincere?

And whether or not that’s warranted, I think it reflects in some ways poorly on us, that when somebody comes and really confesses and says, “Look, I really messed up. I did something wrong.” To find a place in our hearts to not be so instinctively cynical, to not be so instinctively skeptical, but to remind ourselves that there is a place in this world, whether it’s the jury of social media, whether it’s you talking to a friend who, again, it is an act of courage. It is an act of bravery to somebody to really open up and be honest and be real and be authentic. That I messed up, I did something wrong. And to be able to receive that very act of self-incrimination as an act of teshuvah, I think is something that everybody can connect with and everybody can receive.

And I think that’s part of the beauty of Yom Kippur, that instead of dividing the lines as we so often do, between the wrong and the wrong doers and the innocent, the guilty and the innocent on Yom Kippur, we all participate. We all confess, we all self-incriminate. And maybe in a way, the reason why we’re all doing this together is to almost soften our cynicism and skepticism and remind us that we’re all involved in this process. We’re all carrying parts of guilt, we’re all carrying wrongdoing. And maybe if we all come together before Yom Kippur during these times, before the high holidays through Elul, Rosh Hashanah, Yom Kippur, and really reflect on things that we’ve done wrong, then the people who we have wronged and who we open up to and we apologize and we say, I’m sorry. I’m sorry I hurt you. I’m sorry I hurt your feelings.

Maybe we can have the strength to receive that, not with cynicism, not with skepticism, but be able to let go of the hurt and create space for another, which the very word for mechilah means to be mochel, to create a chalal, to create a space. That is what we are doing. And I just want to end with a very moving conclusion to Professor Minow’s book. She quotes from Paul Bose, “Forgiveness does not change the past, but it can enlarge the future. Ultimately forgiveness points towards the future, not just towards the past. And thus, it offers an important dimension for designers and agents of the law and in our own lives where we are not all lawyers and judges of the court, but lawyers and judges of others, of friendships, of relationships, perhaps we can learn to receive and create more capacity for how we hear and receive the forgiveness, the self-incrimination and the teshuvah of our friends.”

So thank you so much for listening, and thank you of course to our series sponsors, Daniel and Mira Stokar, and thank you again to our episode sponsor Shikey Press, our friends at Shikey Press, which is a boutique publisher of Jewish content disrupting the traditional model of book publishing. Over the past few years, Shikey Press has published more than 50 books from Munkatch to Mizrahi and has published books from some of our generation’s leading Torah giants and academic scholars.

To see their catalog of books, check out shikeypress.com, shikeypress.com, established by Menachem Butler and Rabbi Dr. David Shabtai, in memory of Dr. Isaiah Shikey Bard, and join the revolution. Once again, I am so appreciative on a very personal level to Menachem Butler’s friendship and support. Menachem, you and I both know this episode would not have happened without your connection that you introducing me to Professor Minow, and I’m so grateful to you and your ongoing support and friendship.

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