John Gardner

(1965 - 2019)

The rapid growth in psychedelic research raises novel ethical challenges for both research and psychedelic-assisted therapy. Despite these challenges, there is no consensus among researchers, clinicians, patients, and regulators on how these ethical issues may be avoided or managed. This study aimed to identify key ethical issues in psychedelic research and practice in the literature. A scoping review was performed, identifying fifty-one relevant articles. Content analysis revealed five main ethical concerns in the literature: 1) standards of practice, 2) equity, 3) integrity, 4) cultural appropriation, and 5) epistemic justice. A consultation workshop highlighted several key concerns that were neglected in the literature: 1) post-trial care, 2) lack of consensus on models of care and psychedelic practitioner competencies, and 3) how current research and its associated ethical issues will be translated into practice. Based on these findings the following future directions are recommended: designing clear competency frameworks, increased consultation with Indigenous and priority populations (e.g. ethnic and cultural minorities, under-served groups), guidelines for Indigenous recognition, management of post-trial care in clinical trials, and adequate governance of psychedelic prescribing practices.

In this paper, written for a volume on the work of Robert Alexy, I discuss the idea that law makes certain distinctive claims, an idea familiar from the work of both Alexy and Joseph Raz. I begin by refuting some criticisms by Ronald Dworkin of the very idea of law as a claim-maker. I then discuss whether, as Alexy and Raz agree, law's claim is a moral one. Having arrived at an affirmative verdict, I discuss the content of law's moral claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as Raz says, a claim to moral authority?

Forty years after his death, Hans Kelsen (1881-1973) remains one of the most discussed and influential legal philosophers of our time. This collection of new essays takes Kelsen's Pure Theory of Law as a stimulus, aiming to move forward the debate on several central issues in contemporary jurisprudence. The essays in Part I address legal validity, the normativity of law, and Kelsen's famous but puzzling idea of a legal system's 'basic norm'. Part II engages with the difficult issues raised by the social realities of law and the actual practices of legal officials. Part III focuses on conceptual features of legal systems and the logical structure of legal norms. All the essays were written for this volume by internationally renowned scholars from seven countries. Also included, in English translation, is an important polemical essay by Kelsen himself.

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of petty officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties.

How do laws resemble rules of games, moral rules, personal rules, rules found in religious teachings, school rules, and so on? Are laws rules at all? Are they all made by human beings? And if so how should we go about interpreting them? How are they organized into systems, and what does it mean for these systems to have 'constitutions'? Should everyone want to live under a system of law? Is there a special kind of 'legal justice'? Does it consist simply in applying the law of the system? And how does it relate to the ideal of 'the rule of law'?These and other classic questions in the philosophy of law form the subject-matter of Law as a Leap of Faith. In this book John Gardner collects, revisits, and supplements fifteen years of celebrated writings on general questions about law and legal systems - writings in which he attempts, without loss of philosophical finesse or insight, to cut through some of the technicalities with which the subject has become encrusted in the late twentieth century. Taking his agenda broadly from H.L.A. Hart's The Concept of Law (1961), Gardner shows how the key ideas in that work live on, and how they have been and can still be improved in modest ways to meet important criticisms - in some cases by concession, in some cases by circumvention, and in some cases by restatement. In the process Gardner engages with key ideas of other modern giants of the subject including Kelsen, Holmes, Raz, and Dworkin. Most importantly he presents the main elements of his own unique and refreshingly direct way of thinking about law, brought together in one place for the first time.

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.