The Continuity Thesis and Compensation for Justified Harm

Date & Time: July 18, 2025 (Friday) 12:00-13:00

Venue: Room 723, 7/F Cheng Yu Tung Tower, The University of Hong Kong

Language: English

(In-person event)

Abstract:

The Civil Code of the People’s Republic of China recognizes in some circumstances legal compensation for justified harm, where a harm-doer does not commit an all-things-considered wrongdoing to a victim. Similarly, in the common law of tort, courts sometimes also support a legal duty of compensation for justified harm. Advocates of the continuity thesis have made an effort to address a moral or legal duty of compensation for justified harm. However, I will show that advocates of the continuity thesis fail to give a consistent account of our different attitudes towards a moral duty of compensation in different kinds of cases involving justified harm.

The pro tanto duty approach insists that a harm-doer breaches a pro tanto primary duty in causing justified harm. It fails because it cannot explain why a harm-doer who breaches a pro tanto primary duty does not always have a duty to compensate for justified harm. The modest version of the reasons-continuity thesis appeals to reasons justifying a harm-doer’s pro tanto primary duty. It fails to account for a third-party beneficiary’s duty to compensate for justified harm. Ripstein’s incomplete privilege strategy seems to rely either on a pro tanto wrongdoing or a special and unclear sense of all-things-considered wrongdoing. Weinrib’s restitution strategy maintains that a primary duty continues in the absence of wrongdoing. Nevertheless, these two strategies fail to explain why a harm-doer who prevents herself from being harmed by a victim or who saves a third-party beneficiary in an emergency does not have a duty to compensate.

I will also point out that various versions of the continuity thesis overlook two important aspects of cases involving justified harm. One aspect is ‘benefit’. The other aspect is a harm-doer or a beneficiary’s agential authorship of the harm that a victim suffers. Overlooking these two aspects makes the continuity thesis unable to explain why a moral duty of compensation for justified harm is justified in some situations while it is not justified in some other cases. I conclude that a new approach is required and the two aspects above highlight the strong potential of outcome responsibility as a new account of compensation for justified harm.

Speaker:

Dr Ran Wu, is teaching jurisprudence at the School of Law, China University of Political Science and Law. Before joining CUPL, she obtained a doctorate from King’s College London (2024) and a doctorate from China University of Political Science and Law (2019). Her main research interests are general jurisprudence, the philosophy of tort law, moral philosophy, rights theory and responsibility theory.

Chair:
Professor Hui Jing is Assistant Professor of Law and Deputy Director of the Philip K. H. Wong Centre for Chinese Law at The University of Hong Kong.

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