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112Value, interest, and well-beingUtilitas 18 (4): 362-382. 2006.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…Read more
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133How law claims, what law claimsIn Matthias Klatt (ed.), Institutionalized reason: the jurisprudence of Robert Alexy, Oxford University Press. 2012.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…Read more
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187The logic of excuses and the rationality of emotionsJournal of Value Inquiry 43 (3): 315-338. 2009.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 a…Read more
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45Review: Kasper Lippert-Rasmussen, Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination (review)Ethics 125 (4): 1204-1210. 2015.
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121Justification under AuthorityCanadian Journal of Law and Jurisprudence 23 (1): 71-98. 2010.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 T…Read more
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265What is Tort Law For? Part 1. The Place of Corrective JusticeLaw and Philosophy 30 (1): 1-50. 2011.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 co…Read more
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43Fifteen Themes from Law as a Leap of FaithJurisprudence 6 (3): 601-623. 2015.This 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
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74Destined for the Cardozo Law Review. Posted 28 November 2006.
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250Hart on Legality, Justice and MoralityJurisprudence 1 (2): 253-265. 2010.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 …Read more
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60The Legality of LawRatio Juris 17 (2): 168-181. 2004.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 discus…Read more
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15 Backward and Forward with Tort LawIn Joseph Keim Campbell, Michael O'Rourke & David Shier (eds.), Law and social justice, Mit Press. pp. 255. 2005.
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65Review of Douglas Husak, Overcriminalization: The Limits of the Criminal Law (review)Notre Dame Philosophical Reviews 2008 (8). 2008.
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41Law as a Leap of Faith as OTHERS see ITLaw and Philosophy 33 (6): 813-842. 2014.This is my reply to five extended critical assessments of my book Law as a Leap of Faith, appearing together in a symposium issue of Law and Philosophy. The critics are Kevin Toh, Luís Duarte d’Almeida and James Edwards, Fábio Perin Shecaira, Cristina Redondo, and Matthew Smith. The topics include H.L.A. Hart’s philosophical legacy, the moral claims of law, the nature of legal reasoning, the doctrine of legal positivism, and the possibility of alienation from law
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243Complicity and causalityCriminal Law and Philosophy 1 (2): 127-141. 2007.This paper considers some aspects of the morality of complicity, understood as participation in the wrongs of another. The central question is whether there is some way of participating in the wrongs of another other than by making a causal contribution to them. I suggest that there is not. In defending this view I encounter, and resist, the claim that it undermines the distinction between principals and accomplices. I argue that this distinction is embedded in the structure of rational agency
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104Hart and Feinberg on responsibilityIn Matthew H. Kramer (ed.), The legacy of H.L.A. Hart: legal, political, and moral philosophy, Oxford University Press. 2008.Forthcoming in Kramer et al (eds), The Legacy of H.L.A. Hart. Posted 8 February 2008.
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40Torts and Other WrongsOxford University Press. 2019.This book collects John Gardner's celebrated essays on the theory of private law, alongside two new essays. Together they range across the central puzzles in understanding the significance of outcomes, the role of justice in private law, strict liability, the reasonable person standard, and the role of public policy in tort law.
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123Reasons and Abilities: Some PreliminariesAmerican Journal of Jurisprudence 58 (1): 63-74. 2013.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 th…Read more
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1Hart on ResponsibilityIn Matthew H. Kramer, Claire Grant, Ben Colburn & Antony Hatzistavrou (eds.), The legacy of H.L.A. Hart: legal, political, and moral philosophy, Oxford University Press. 2008.