John Gardner

(1965 - 2019)

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 “experiential argument.” In this comment I attempt to analyze Moore's “experiential argument” in some detail and thereby to bring out why it does not 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.

In a recent paper in the Yale Law Journal, Malcolm Thorburn argued that to enjoy a justificatory defence in the criminal law is to have a normative power that is exercised in the circumstances which give rise to the justification. He also argued that where such powers are conferred on private citizens, those citizens should be understood as acting as public officials pro tempore when they exercise them. In this extended reply, I resist both propositions and reply to some of the criticisms that Thorburn makes of my own rival views. I also take the opportunity to explore, philosophically, some of the criminal law relating to consent, self-defence and arrest, and to discuss the connections between the debate over the nature of criminal-law justifications and the debate over the nature of law

In this article we consider and cast doubt on two doctrines given prominence and prestige by the utilitarian tradition in ethics. According to the interest theory of value, value is realized only in the advancement of people's interests. According to the well-being theory of interests, people's interests are advanced only in the augmentation of their well-being. We argue that it is possible to resist these doctrines without abandoning the value-humanist doctrine that the value of anything has to be explained in terms of its potential to contribute to human lives and their quality. (Published Online November 24 2006).

Sometimes emotions excuse. Fear and anger, for example, sometimes excuse under the headings of (respectively) duress and provocation. Although most legal systems draw the line at this point, the list of potentially excusatory emotions outside the law seems to be longer. One can readily imagine cases in which, for example, grief or despair could be cited as part of a case for relaxing or even eliminating our negative verdicts on those who performed admittedly unjustified wrongs. To be sure, the availability of such excuses depends on what wrong one is trying to excuse. No excuse is available in respect of all wrongs. Some wrongs, indeed, are inexcusable. This throws up the interesting question of what makes a particular emotion apt to excuse a particular wrong. Why is fear, for example, more apt to excuse more serious wrongs than, say, pride or shame? This question leads naturally to another. Why are some emotions, such as lust, greed, and envy, apparently not apt to furnish any excuses at all? Can one not be overcome by them? Can they not drive one to wrongdoing as readily as fear and grief? Or is that not the point?

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

HLA Hart has sometimes been associated with the false proposition that there is 'no necessary connection between law and morality'. Nigel Simmonds is the latest critic to make the association. He offers an 'ironic' interpretation of a famous passage in Hart's The Concept of Law in which the proposition is apparently rejected as false by Hart. In this paper I explain why, even if Simmonds's ironic interpretation is tenable, it does not associate Hart with the proposition in the way that Simmonds believes that it does. More affirmatively, I show that among several necessary connections between law and morality that Hart defends, there is an important indirect one that runs from law to legality, from legality to justice, and from justice to morality

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 challenging collection of new essays, leading philosophers and criminal lawyers from the United States, the United Kingdom, and Canada break with the tradition of treating the philosophical foundations of criminal law as an adjunct to the study of punishment. Focusing clearly on the central issues of moral luck, mistake, and mental illness, this volume aims to reorient the study of criminal law. In the process of retrieving valuable material from traditional law classifications, the contributors break down false associations, reveal hidden truths, and establish new patterns of thought. Their always illuminating and sometimes startling conclusions makes this essential reading for all those interested in the philosophy of criminal law.

In this paper I outline various different objects of investigation that may be picked out by word “law” (or its cognates). All of these objects must be investigated in an integrated way before one can provide a complete philosophical explanation of the nature of law. I begin with the distinction between laws (artefacts) and law (the genre to which the artefacts belong). This leads me to the distinction between the law (of a particular legal system) and law (the genre of artefacts). Then I discuss the contrast between law (the genre of artefacts) and law (the practice). Finally I comment on legality as the name of an ideal for laws and legal systems to live up to. I commend H. L. A. Hart's explanation of the nature of law for investigating these various objects in an integraed way, while nevertheless respecting the distinctions among them. I also criticise some of R. M. Dworkin's work for failing to respect the same distinctions.

I. Often, I have a reason to φ and derived from it I have a reason to try to φ. But not always. A reason for me to try to φ derives from a reason for me to φ only if my trying to φ will contribute to my φing. In cases of two distinct types my trying to φ does not pass this test. In cases of the first type, I lack the ability to φ at all, so nothing that I do (including but not limited to my trying to φ) will contribute to my φing. I will never sing like Ella Fitzgerald whatever I do, so there’s nothing to be gained by trying. In cases of the second type, I have the ability to φ but lack the ability to φ-by-trying-to: trying to φ is counterproductive; it would be better, from the point of view of my φing, if I aimed at something else instead, possibly even at −φing. Trying to impress people, or trying to be funny, or trying to make oneself popular may all have the opposite effect. The funniest thing, indeed, is sometimes trying to be serious in the face of absurdity. On such an occasion a reason to be funny yields no reason to try to be funny, but it does yield a reason to try not to be funny.