Professor of Jurisprudence*
John Gardner FBA is Professor of Jurisprudence and a Fellow of University College. He was formerly Reader in Legal Philosophy at King's College London (1996-2000), Fellow and Tutor in Law at Brasenose College, Oxford (1991-6) and Fellow of All Souls College, Oxford (1986-91). He has also held visiting positions at Columbia University, Yale University, the University of Texas, Princeton University, the Australian National University and the University of Auckland. He serves on the editorial boards of numerous journals including the Oxford Journal of Legal Studies, Legal Theory, Law and Philosophy, and The Journal of Moral Philosophy. Called to the Bar in 1988, he has been a Bencher of the Inner Temple since 2002 (although he does not practice).
John Gardner, 'Reasons and Abilities: Some Preliminaries' (2013) 58 American Journal of Jurisprudence 63 [...]
This paper takes some first steps in a study of the thesis that “ought” implies “can.” Considerable attention is given to the proper interpretation of the thesis, including the interpretation of “ought,” the interpretation of “can,” and the interpretation of “implies.” Having chosen a particular interpretation of the thesis to work on—in some ways its broadest interpretation—the paper tries to bring out some considerations that bear on its truth or falsity. After an excursion into the general theory of value, this paper finds it false. The paper concludes with the suggestion that part of its allure comes of confusion with another thesis, namely the thesis that “ought to try” implies “can succeed.” Suitably qualified, this last thesis is true, and the false thesis that “ought” implies “can” basks in the reflected glory. Left for another day are narrower interpretations of “ought” implies “can” which may protect it against my objections.
John Gardner, 'Corrective Justice, Corrected' (2012) 12 Diritto & Questioni Pubbliche 9
John Gardner, 'In Defence of Offences and Defences' (2012) 4 Jerusalem Review of Legal Studies 110
John Gardner, 'Torts and Other Wrongs' (2012) 39 Florida State University Law Review 43
John Gardner, 'Wrongdoing by Results: Moore\'s Experiential Argument' (2012) 18 Legal Theory 459 [...]
Michael Moore and I agree about the moral importance of how our actions turn out. We even agree about some of the arguments that establish that moral importance. In Causation and Responsibility, however, Moore foregrounds one argument that I do not find persuasive, or even helpful. In fact I doubt whether it even qualifies as an argument. He calls it the ï¿½experiential argumentï¿½. In this comment I attempt to analyze Mooreï¿½s ï¿½experiential argumentï¿½ in some detail and thereby to bring out why it doesnï¿½t help. In the process I raise some problems about the rationality of the emotions, which may be where Moore and I part company. We both believe that emotions should be taken more seriously by moral philosophy. But apparently we have radically different views about what this means.
John Gardner, 'Amartya Sen's The Idea of Justice' (2011) 6 Journal of Law, Philosophy and Culture 241 [...]
An extended critical notice of Amartya Sen's book The Idea of Justice.
John Gardner, 'Can There Be a Written Constitution?' (2011) 1 Oxford Studies in Philosophy of Law 162
Jeff McMahan rejects the relevance of desert to the morality of self-defense. In Killing in War he restates his rejection and adds to his reasons. We argue that the reasons are not decisive and that the rejection calls for further attention, which we provide. Although we end up agreeing with McMahan that the limits of morally acceptable self-defense are not determined by anyone’s deserts, we try to show that deserts may have some subsidiary roles in the morality of self-defense. We suggest that recognizing this might help McMahan to answer some unanswered questions to which his own position gives rise.
John Gardner and Timothy Macklem, 'Disibilità umane: su cosa significhi l\'avere accesso a un valore' (2011) 36 Ragion Pratica 9 [...]
In this essay (published in Italian) we reflect on some general theoretical questions about disability, beginning with some absences of ability that are conventionally classed as disabilities (lack of vision, lack of mobility). We move from there to ask whether those of us who are conventionally classed as non-disabled in fact suffer from disabilities, and in particular whether there are disabilities shared by all humans. We reflect on the idea of the superhero, and also on whether it makes sense to envy the abilities of other species that are not shared by human beings. This leads us into a critique of species-relativism about value. We defend the thesis that all value is value for everything. This draws us into some reflections on the importance of ability and disability, and in particular on the practical importance for rational beings of that which they cannot attain.
John Gardner, 'What is Tort Law For? Part 1: The Place of Corrective Justice' (2011) 30 Law and Philosophy 1 [...]
In this paper I discuss the proposal that the law of torts exists to do justice, more specifically corrective justice, between the parties to a tort case. My aims include clarifying the proposal and defending it against some objections (as well as saving it from some defences that it could do without). Gradually the paper turns to a discussion of the rationale for doing corrective justice. I defend what I call the ‘continuity thesis’ according to which at least part of the rationale for doing corrective justice is to mitigate one’s wrongs, including one’s torts. I try to show how much of the law of torts this thesis helps to explain, but also what it leaves unexplained. In the process I show (what I will discuss in a later companion paper) that ‘corrective justice’ cannot be a complete answer to the question of what tort law is for.
In this comment on Nigel Simmonds' book Law as a Moral Ideal, I take issue with Simmonds' interpretation of the work of H.L.A. Hart. I attempt to provide textual support for the view that Hart did find necessary connections - many of them - between law and morality. The bulk of the comment is devoted to exploring just one indirect necessary connection between law and morality that Hart may have noticed in The Concept of Law, viz. the connection from law to legality, from legality to justice, and from justice to morality. I find Hart surprisingly ambivalent about the last link in this chain, but do not find in this ambivalence any solace for Simmonds.
In this paper I discuss and reply to Malcolm Thorburn's important article 'Justifications, Powers, and Authority', Yale Law Journal 117 (2008), 1070. My discussion raises a wide range of conceptual and doctrinal questions about Thorburn's account of justification defences, and about the theory of justfication defences more generally. The paper also trespasses on some broader questions about the nature of law and its relationship to morality.
John Gardner, 'The Logic of Excuses and the Rationality of Emotions' (2009) 43 Journal of Value Inquiry 315
John Gardner, 'Moore on Complicity and Causality' (2008) 156 University of Pennsylvania Law Review PENNumbra 432
John Gardner, 'Simply in Virtue of Being Human: the Whos and Whys of Human Rights' (2008) 2 Journal of Ethics and Social Philosophy 1 [...]
In this paper I raise some questions about the familiar claim, recently reiterated by James Griffin, that human rights are rights that humans have 'simply in virtue of being human'. I ask, in particular, how we are to read the words 'simply in virtue of'. Are we speaking of who has the rights (A has them if and only if he or she is human) or why they have the rights (A has them because and only because he or she is human)? Griffin brings the two readings together, as two sides of the same coin. He offers a (more or less) universalistic case for (more or less) universalistic rights. I try to show how the two readings can be driven apart, how the universality of human rights need not be undermined merely by there being no adequate universalistic case for them. On the strength of this discussion I suggest an inversion of the relationship that is often thought to hold between human rights and human dignity. In a way our rights give us our dignity, not vice versa. And in a way this helps to make the case for the universality of human rights.
John Gardner, 'Complicity and Causality' (2007) 1 Criminal Law and Philosophy 127
John Gardner, 'Nearly Natural Law' (2007) 52 American Journal of Jurisprudence 1
John Gardner and T Macklem, 'Value, Interest, and Well-Being' (2006) 18 Utilitas 362
John Gardner, 'Fletcher on Offences and Defences' (2004) 39 University of Tulsa Law Review 817
John Gardner and T Macklem, 'No Provocation without Responsibility: A Reply to Mackay and Mitchell'  Criminal Law Review 213
John Gardner, 'The Legality of Law' (2004) 17 Ratio Juris 168
John Gardner, 'The Wrongdoing that Gets Results' (2004) 18 Philosophical Perspectives 53
John Gardner, 'The Mark of Responsibility' (2003) 23 Oxford Journal of Legal Studies 157
John Gardner, 'Reasons for Teamwork' (2002) 8 Legal Theory 495
John Gardner and T Macklem, 'Compassion without Respect? Nine Fallacies in R v Smith' (2001) Criminal Law Review 623
John Gardner, 'Legal Positivism: 5½ Myths' (2001) 46 American Journal of Jurisprudence 199
John Gardner and T Macklem, 'Provocation and Pluralism' (2001) 64 Modern Law Review 815
John Gardner, 'The Virtue of Justice and the Character of Law' (2000) 53 Current Legal Problems 1
John Gardner, Law as a Leap of Faith: Essays on Law in General (Oxford University Press 2012) [...]
1: Law as a Leap of Faith (first published 2000) 2: Legal Positivism: 5 1/2 Myths (2001) 3: Some Types of Law (2007) 4: Can There be a Written Constitution? (2011) 5: How Law Claims, What Law Claims (2012) 6: Nearly Natural Law (2007) 7: The Legality of Law (2004) 8: On the Supposed Formality of the Rule of Law (previously unpublished) 9: Hart on Legality, Justice, and Morality (2011) 10. The Virtue of Justice and the Character of Law (2000) 11: Law in General (previously unpublished) The eligible chapters for REF2014 are 4, 5, 8, 9, 11.
John Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (OUP 2007) [...]
This is a collection of essays, some of which were first published before 2001 (pp. 1-56, 91-140, 201-238). In addition pages 155-176 were written with Timothy Macklem (50:50). Original versions of essays have been left intact to provide context for a newly-written concluding chapter, ‘Reply to Critics’, pp. 321-378.
John Gardner and James Edwards, 'Criminal Law' in Hugh LaFollette (ed), International Encyclopedia of Ethics (Wiley-Blackwell 2013)
John Gardner, 'Criminals in Uniform' in R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo, and Victor Tadros (eds), The Constitution of Criminal Law (Oxford University Press 2013)
John Gardner, 'Finnis on Justice' in John Keown and Robert P. George (eds), Reason, Morality, and the Law: The Philosophy of John Finnis (Oxford University Press 2013)
John Gardner, 'Ashworth on Principles' in Julian Roberts and Lucia Zedner (eds), Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Oxford University Press 2012)
John Gardner, 'How Law Claims, What Law Claims' in Matthias Klatt (ed), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford University Press 2012)
John Gardner, 'Punishment and Compensation: A Comment' in Russell Christopher (ed), George Fletcher's Essays on Criminal Law (Oxford University Press 2012)
John Gardner, 'Relations of Responsibility' in Rowan Cruft, Matthew Kramer and Mark Reiff (eds), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff (Oxford University Press 2011)
John Gardner, 'Ethics and Law' in John Skorupski (ed), The Routledge Companion to Ethics (Routledge 2010)
John Gardner, 'Hart and Feinberg on Responsibility' in Matthew Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou (eds), The Legacy of H.L.A. Hart (Oxford University Press 2008)
John Gardner, 'Introduction' in H L A Hart, Punishment and Responsibility, Second Edition (Oxford University Press 2008)
John Gardner, 'Some Types of Law' in D Edlin (ed), Common Law Theory (Cambridge University Press 2007)
John Gardner, 'Law's Aim in Law's Empire' in Scott Hershovitz (ed), Exploring Law's Empire (Oxford University Press 2006)
John Gardner, 'Backwards and Forwards with Tort Law' in J Keim-Campbell, M O'Rourke and D Shier (eds), Law and Social Justice (MIT Press 2005)
John Gardner, 'Wrongs and Faults' in A P Simester (ed), Appraising Strict Liability (Oxford University Press 2005)
John Gardner, 'In Defence of Defences' in P Asp, C E Herlitz, L Holmqvist (eds), Flores Juris et Legum: Festskrift till Nils Jareborg (Iustus Forlag 2002)
John Gardner and T Macklem, 'Reasons' in J Coleman and S Shapiro (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press 2002)
John Gardner, 'The Virtue of Charity and its Foils' in C Mitchell and S Moody (eds), Foundations of Charity (Hart Publishing 2000)
John Gardner and S Shute, 'The Wrongness of Rape' in J Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (Oxford University Press 2000)
John Gardner and P Cane (eds), Relating to Responsibility: Essays for Tony Honoré (Hart Publishing 2001)
Professor John Gardner FBA
The Faculty of Law is delighted to announce that Professor John Gardner has been elected to the British Academy [more…]
Research: Philosophy of law (including philosophy of criminal law, private law, and public law); moral and political philosophy