There is a remarkable discussion in the Gemara that, at first encounter, seems to turn justice upon its head.
A thief decides to repent. He acknowledges what he has done and wants to return what he has stolen. One would imagine that the response of our Sages would be straightforward: return everything, repay everyone, and only then can the process of teshuvah begin.
Instead, our Sages recognised that there are circumstances in which the victim should refuse to accept the restitution.
That requires some explanation.
The Torah is unequivocal about the obligation of someone who has stolen: והשיב את הגזלה אשר גזל — veheshiv et hagezelah asher gazal — “he shall return that which he stole” (Vayikra 5:23). Repentance cannot consist merely of regretting wrongdoing while deliberately retaining its proceeds. A person who has taken what belongs to another must be willing to give it back.
But Bava Kamma 94b presents our Sages with a deeper human problem.
The Gemara tells of a thief who wanted to repent. His wife pointed out what repentance might mean in practical terms: if he attempted to repay everything he had taken, he would be left with virtually nothing — not even his belt. Confronted with the enormity of what restitution would require, the man abandoned his attempt to repent.
Our Sages understood the danger immediately.
They instituted what became known as תקנת השבים — takkanat hashavim — “the enactment for those who return.” Under the circumstances to which the enactment applies, when thieves or others possessing improperly acquired money came forward seeking genuinely to repent, those entitled to repayment were encouraged not to accept it.
The principle is profound because it distinguishes between two entirely different questions.
What must the wrongdoer be prepared to do?
And what should the person who has been wronged be prepared to do?
The wrongdoer must be willing to surrender what he acquired dishonestly. His repentance cannot depend upon being permitted to enjoy the fruits of his wrongdoing.
But the victim can sometimes answer: I see that you are genuinely trying to change. I will not allow what you owe me to become the reason that you believe change is impossible.
The thief offers to return it.
The victim refuses to take it.
Both relinquish something.
This becomes especially significant when we consider the habitual offender.
Someone who commits a single dishonest act may be able to identify the victim, return the property and repair the damage. But imagine someone who has lived dishonestly for ten, twenty or thirty years. There may be countless transactions. Some victims may no longer be identifiable. Property may have disappeared long ago. Money may have been spent. The accumulated liability may exceed everything the person now possesses.
Then one day he decides: Enough. From today onwards, I will be an honest man.
What should Judaism say to him?
Should we tell him that before he can become honest he must first accomplish something that may now be practically impossible?
If so, we have created a terrible paradox: the worse his past has been, the more difficult we make it for him to have a different future.
Our Sages refused to accept that proposition.
This does not mean that yesterday's wrongdoing becomes permissible because today's offender has expressed regret. Nor does תקנת השבים provide a convenient mechanism by which someone can retain the benefits of dishonesty while announcing that he has repented.
The change must be real.
He must stop.
He must recognise the wrong.
He must be willing to make restitution.
He must accept whatever obligations Halakhah actually places upon him.
But once the desire to return is genuine, Judaism does not demand that everyone around him erect additional barriers to ensure that he can never escape the person he once was.
That is the extraordinary wisdom contained in תקנת השבים.
There is justice in requiring a thief to return what he stole. But there can also be righteousness in the victim saying, Keep what you have offered to return, and use the opportunity I am giving you to ensure that you never steal again.
The debt has not been declared imaginary. The wrong has not been rewritten as right. Rather, the person who was wronged has chosen something greater than recovering what was lost: he has chosen to assist in the recovery of the human being who took it.
Yechezkel expresses the principle with extraordinary force. If the wicked person turns away from his sins and begins to live according to G-D's commandments, בחטאתו אשר חטא בהם לא יזכרו לו — “the sins that he committed shall not be remembered against him” (Yechezkel 18:22).
This does not erase monetary obligations between one person and another; those remain governed by Halakhah. But it tells us something fundamental about how G-D regards teshuvah.
A person's past does not possess an eternal veto over his future.
We often speak about repentance as though its principal purpose were to settle accounts with the past. Perhaps we should think about it differently. Teshuvah certainly requires us to confront the past, but its ultimate purpose is to create a different future.
That is why the habitual offender who finally chooses honesty presents us with such a powerful test.
We can continue to identify him exclusively by everything he has done before. We can make certain that he carries yesterday permanently around his neck. We can insist that because he has failed repeatedly, his declaration that he intends to change deserves nothing but suspicion.
Or we can remain cautious while nevertheless leaving the door open.
Our Sages left the door open.
They understood something about human beings that remains as important today as it was when they instituted תקנת השבים: if we genuinely believe in teshuvah, we must believe that a person can become something other than what he has been.
The habitual thief must eventually be permitted to become the honest man.
Otherwise, we believe in punishment.
But we do not really believe in teshuvah.