Question

In the article on the portion of Korach, 5767, you wrote about the difference in Jewish law between a constitutive system and a directive system, and about the distinction in this respect between monetary law and Choshen Mishpat (a directive system) and the realm of prohibitions (usually a constitutive system). In the Kuntresei Shiurim on the law of damage that is not externally perceptible, he brings an approach that seemed to me quite similar, and I wondered whether in your view too it fits what you wrote. This is his language: “And it seems to me that there is also a third approach, entirely novel, in explaining the law of damage that is not externally perceptible: that it is not called damage if the damage depends on the laws of prohibition and permission or on the commandments of the Torah. For monetary law and tort law are one thing, and the laws of prohibitions and commandments are another. The section of tort law was stated only where, even without the laws of prohibition, there is still damage from the standpoint of monetary law alone, which are laws between one person and another. But in a case where, without the prohibition or without the commandment—which is between a person and God—there is no damage at all, and only the prohibition or commandment creates the damage, in such a case the Torah did not state the laws of torts. For there is no monetary liability for prohibitions and commandments, only for damages and monetary laws between one person and another. Therefore, one is liable for payment only for damage where, from the standpoint of monetary law alone (the laws of Choshen Mishpat), there is a damager, an injured party, and damage; but if from the standpoint of monetary law alone there is no damage, and one must add the laws of prohibition and permission (the laws of Yoreh De’ah) or the laws of commandments (Orach Chayim), then regarding such damage the section of tort law was not stated, for liability for damages has no connection whatsoever to prohibitions and commandments, for even someone who is exempt from all the commandments of the Torah is nevertheless liable for damages.”