John Gardner FBA is a Senior Research Fellow at All Souls College, Oxford, with the title of Professor of Law and Philosophy in the University of Oxford. From 2000 to 2016 he held Oxford's Chair of Jurisprudence. Before that he was Reader in Legal Philosophy at King's College London (1996-2000), Fellow and Tutor in Law at Brasenose College, Oxford (1991-6) and Examination ('Prize') Fellow of All Souls College, Oxford (1986-91). He has also held visiting positions at Columbia University, Yale University, the University of Texas at Austin, Princeton University, the Australian National University, the University of Auckland, and most recently Cornell University. He serves on the editorial boards of numerous journals including the Oxford Journal of Legal Studies, Ethics, 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). He was elected a Fellow of the British Academy in 2013.
- ISBN: 0010-1958DOI: 10.1093/jrls/jlx011ISBN: 2219-7125The short paper is a reply to bob Watt, who takes issue in an interesting way with the moral psychology implicit in my old paper 'The Wrongness of Rape' (co-authored with Stephen Shute). Watt says that Shute and I make a sideshow of the emotions by holding them answerable to reasons. I show that this charge is false. I show that it is actually Watt who makes a sideshow of the emotions by presenting them as unresponsive to reasons. I also respond to Watt's criticism of the concrete proposal that Shute and I make, namely that rape is sheer use of a person.ISBN: 0269 1922DOI: 10.1111/1468-2230.12240This contribution distinguishes two kinds of responsibility: the basic (or ‘metaphysical’) kind that we all inescapably have as functioning human beings; and the assignable (or ‘political’) kind that connects each of us with some particular tasks, and not with others. Having explored some differences between the two, and in particular the role of law's authority in connection with each, the discussion turns to the negligence standard, especially but not only as it figures in tort law. Recently, several philosophers have attempted to find a role for the negligence standard in the metaphysics of basic responsibility. This contribution resists that development and stands up for the traditional lawyer's view that the negligence standard belongs to the pliable politics of assignable responsibility. Basic responsibility, it is argued, is fundamentally strict.ISBN: 0026-7961DOI: 10.1093/jrls/jlw013Actually published March 2017 (although dated December 2016)ISBN: 2219-7125DOI: 10.1080/20403313.2015.1067489This article contains the author's responses to five critics of his book Law as a Leap of Faith whose criticisms appear in this journal. The critics are Kimberley Brownlee, Antony Hatzistavrou, Kristen Rundle, Sari Kisilevsky and Nicola Lacey. The criticisms and responses pick up the following fifteen themes from the book: law, morality, society, explanation, continuity, rationality, ends, instruments, values, justice, allocation, games, modalities, generalities, jurisprudence.ISBN: 2040-3313ISBN: 0023-933XDOI: 10.5235/096157184.108.40.206ISBN: 0961-5768DOI: 10.1007/s10982-014-9218-5ISBN: 0167-5249DOI: 10.1093/acprof:oso/9780198729327.003.0010ISBN: 9780198729327DOI: 10.1093/acprof:oso/9780198701385.003.0017ISBN: 9780198701385ISBN: 9781849463249DOI: 10.1002/9781444367072.wbiee640ISBN: 978-1405186414DOI: 10.1093/acprof:oso/9780199673872.003.0006ISBN: 978-0-19-967387-2DOI: 10.1093/acprof:oso/9780199675500.003.0011ISBN: 978-0-19-967550-0DOI: 10.1093/ajj/aut004This 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 onin some ways its broadest interpretationthe 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.DOI: 10.1093/acprof:oso/9780199696796.003.0001ISBN: 978-0-19-969679-6ISBN: 1825-0173ISBN: 978-0-19-958206-8DOI: 10.1093/jrls/4.1.110ISBN: 2219-7125DOI: 10.1093/acprof:oso/9780199695553.001.00011: 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.ISBN: 978-0-19-969555-3ISBN: 9780199941230ISBN: 0096-3070Michael 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.ISBN: 1352-3252An extended critical notice of Amartya Sen's book The Idea of Justice.ISBN: 1939-7917DOI: 10.1093/acprof:oso/9780199606443.001.0001ISBN: 978-0-19-960644-3DOI: 10.1415/34411In 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.ISBN: 1720-2396DOI: 10.1093/acprof:oso/9780199592814.003.0006ISBN: 978-0-19-959281-4DOI: 10.1007/s10982-010-9086-6In 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 ones wrongs, including ones 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.ISBN: 0167-5249ISBN: 978-0-415-41362-6DOI: 10.5235/204033210793524276In 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.ISBN: 2040-3313In 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.ISBN: 0841-8209DOI: 10.1007/s10790-009-9181-9ISBN: 0022-5363ISBN: 978-0-19-954289-5ISBN: 978-0-19-953478-4ISBN: 0041-9907In 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.ISBN: 1559-3061DOI: 10.1007/s11572-006-9018-6ISBN: 1871-9791ISBN: 0065-8995DOI: 10.1093/acprof:oso/9780199239351.001.0001This 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.ISBN: 978-0-19-923935-1DOI: 10.1017/CBO9780511551116.003ISBN: 9780521846424ISBN: 0-19-927435-5DOI: 10.1017/S0953820806002160ISBN: 0953-8208ISBN: 0-262-03340-2