Rabbi Lichtenstein: This Is the Tragedy of Choshen Mishpat

The head of the Har Etzion Yeshiva, Rabbi Moshe Lichtenstein, said that the halakhic field of the Choshen Mishpat section of the Shulchan Aruch has lost much of its practical force.

Rabbi Moshe Lichtenstein, head of the Har Etzion Yeshiva, spoke at the launch of Rabbi Noam Samet’s book New Heavens about the development of halakhic literature and the place of Ketzot HaChoshen in the world of study. During the conversation, he referred to what he called “the tragedy of Choshen Mishpat,” a process that intensified with the appearance of civil legal systems in modern states. Rabbi Lichtenstein explained that once a state establishes courts and its own civil legal system, the practical status of Choshen Mishpat changes. He stressed that the question of the halakhic relationship to secular courts was not the main point for him in this discussion, but rather the very existence of an alternative system with authority and enforcement power.

The rabbi compared different areas of halakha to Choshen Mishpat. A person who asks questions about lifestyle, Shabbat, or other areas of religious observance does so מתוך choice and a desire to be bound by the halakhic system. “A person who comes to a rabbi with a question is someone who has decided that he is bound to this complex system.” By contrast, in monetary law the situation is different. Rabbi Lichtenstein argued that in many cases the parties do not come to a rabbinical court by choice, but because the dispute requires a ruling. Often there is a need to compel litigants to come to a hearing, so the system’s ability to function depends heavily on its enforcement capacity.

He went on to explain that when a court lacks real coercive power, its ability to resolve disputes is weakened. Even when two observant Jews agree to appear before a beit din, in complicated cases the losing side may not respect the ruling. Rabbi Lichtenstein linked this to the existence of state enforcement mechanisms. Civil court rulings are respected in part because there are bodies that ensure they are carried out. “When there is no police and no enforcement office, it does not work,” he said, referring to the ability to enforce legal decisions.

As an example, he described a lengthy rabbinical arbitration process that lasted for years over a financial dispute. Each time one side lost, it asked to go to another court, and the proceedings dragged on for a very long time. In the end, the dispute reached forums that had real enforcement power.

He then described the process as a gradual phenomenon that unfolded over generations. He noted that his great-grandfather, Rabbi Moshe Soloveitchik, still dealt with monetary law within the community in which he lived, but even then it was already clear that the standing of the field was weakening. Rabbi Lichtenstein added that this process can also be seen in the responsa literature of recent generations. In his view, the center of gravity of halakhic creativity has increasingly shifted to other areas, while Choshen Mishpat has taken up a more limited place than in the past.

The decline in the number of practical questions also affects Torah creativity. “Necessity ultimately also brings creativity,” he explained, saying that when decisors are required to deal with practical problems from the public that turns to them, they are forced to develop new solutions, innovations, and analyses. As an example, he mentioned the halakhic treatment of fertility issues, which continues to develop because there are people who need practical answers. By contrast, in Choshen Mishpat, where the number of practical questions and discussions is shrinking, the incentive to develop new rulings also diminishes.

One result of this process is that the study of Choshen Mishpat has become more conceptual and theoretical. Instead of focusing on practical questions and concrete rulings, the discussion turns to conceptual foundations, definitions, and analytical inquiries. He then gave examples from well-known discussions in Ketzot HaChoshen. He noted that issues such as the status of a single witness, or foundational discussions in the laws of fines, have become central parts of the world of study, even though in practice they are usually not at the center of contemporary legal proceedings.

This reality, he said, illustrates the change the field has undergone, from halakhic literature intended first and foremost to answer practical questions for courts and communities, to a more theoretical world that seeks to analyze concepts, examine foundations, and deepen the theoretical structure of halakha. In his view, Ketzot HaChoshen has thus become a symbol both of the end of one era and the beginning of a new path in the study of Choshen Mishpat.