Andrew Gold, ‘Delegation and the Continuity Thesis’

This essay reviews John Gardner’s recent books, From Personal Life to Private Law, and Torts and Other Wrongs. Both books offer profound insights into private law’s concerns with justice and our reasons for action. The essay focuses on Gardner’s continuity thesis, and in particular on his idea that a third party (such as the state) may act on behalf of a wrongdoer as her delegee. Three settings are considered. First, I will discuss settings in which the state or another third party acts to remedy a wrong without the wrongdoer’s consent. Second, I will review settings in which the legal remedies at issue – eg, general damages or punitive damages – may not fit well with the idea that the state is acting on behalf of a wrongdoer. Third, I will analyze settings in which the state may be acting on behalf of right holders (including plaintiffs), yet still be concerned with the continuity thesis. Assessing each of these contexts offers further insights into the purpose of private law remedies.

Andrew S Gold, Delegation and the Continuity Thesis, Law and Philosophy (2021), Published 11 August 2021.

First posted 2021-08-11 11:00:29

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