John Gardner

In 2013 the Nuffield Council on Bioethics launched their report Novel Neurotechnologies: Intervening in the Brain. The report, which adopts the European Commission’s notion of Responsible Research and Innovation, puts forward a set of priorities to guide ethical research into, and the development of, new therapeutic neurotechnologies. In this paper, we critically engage with these priorities. We argue that the Nuffield Council’s priorities, and the Responsible Research and Innovation initiative as a whole, are laudable and should guide research and innovation in all areas of healthcare. However, we argue that operationalising Responsible Research and Innovation requires an in-depth understanding of the research and clinical contexts. Providing such an understanding is an important task for empirical ethics. Drawing on examples from sociology, science and technology studies, and related disciplines, we propose four avenues of social science research which can provide such an understanding. We suggest that these avenues can provide a manifesto for empirical ethics.

The clinical development of implantable neural devices raises complex ethical questions about post-trial responsibilities to participants. Continued support for participants who continue to use investigational implantable neural devices requires ongoing specialist care, technical expertise, access to tertiary clinical infrastructure, and substantial financial resources to pay for the device and related procedures. However, continued access may not be possible if the trial shows no benefit, if financial barriers limit commercial viability, or if safety concerns lead to suspension or early termination. Specific ethical guidance on post-trial responsibility is urgently needed. To address this challenge within the Australian innovation context, we conducted a modified Delphi study with a multidisciplinary panel of 24 experts, including representatives from industry, bioethics, law, neurosurgery, clinical psychology/neuropsychology, clinical research, neural engineering, regulation and governance, and lived experience advocacy. The process involved two workshops and a survey, guided by established RAND/UCLA methods with context-specific modifications. Drawing on prior empirical research and regulatory review, the panel developed 11 consensus recommendations for responsible post-trial practices. All recommendations achieved high levels of agreement and were rated as highly important for addressing ethical risks in the Australian environment. These are the first jurisdiction-specific recommendations of their kind, and we anticipate they will substantially enhance ethical and practical standards for post-trial responsibility in implantable neural device research in Australia and internationally.

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.

THE ELEMENTARY MORAL DISTINCTION. The ultimate objects of moral assessment are people and their lives. I will call this the "elementary moral distinction." Many today seem to have lost sight of it. How often are we told that we should show respect for other people, only to discover that what we are actually being asked to show respect for is how those other people live? The equation of the two should be resisted. We do not always respect a person by respecting how he lives. Sometimes quite the reverse. If someone is wasting his life but still deserves to be respected, the default way to show him the respect that he deserves is to do something that improves the way he is living- shake him out of it, block his path, change his incentives, shield him from further exploitation, and so forth. Sometimes, of course, there is no action open to us that will yield any improvement in how he lives, while on other occasions the only things we can do are disproportionate. In such cases we have to tolerate his continuing to live as badly he does. But toleration is one thing, and respect is quite another. Toleration is the moral virtue of those who appropriately curb their wish to eliminate what they do not respect. One cannot respect the way someone is living and tolerate it at the same 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

This paper has two parts. The first is an exposition of John Foster's argument that ultimate reality, whatever else it might be, is not physical, and could not be. The second part is a somewhat tentative discussion of this argument, in which I consider ways it might be challenged or amended. I suggest that while Foster's argument may not render materialism untenable, at the very least it forces the materialist to adopt certain other controversial views, and so is a force to be reckoned with. I shall use the term physical anti-realism to denote the thesis that ultimate reality does not, and cannot possibly, contain anything material or physical. By physicalism I mean the doctrine that ultimate reality can be physical, at least in part. What Foster means by "ultimate reality" will be explained shortly, but it can be taken roughly to mean: the world as it really is, objectively, as opposed to how it appears to be, or how we conceive it to be. The full-scale version of Foster's argument for physical anti-realism is to be found in the first eleven chapters of The Case for Idealism.2 In the remaining six chapters, he argues that the best way of accommodating this negative result is to adopt a version of phenomenalism, by holding that the physical world exists, but only as a "creation" of contingent constraints on the course of human sensory experience. In what follows, I shall be concerned only with the negative part of Foster's argument, his case against physicalism. Foster himself has recently provided a shorter version of his argument, in "The Succinct Case for Idealism".3 The latter work, henceforth The Succinct Case, as opposed to just The Case, is mainly given over to the anti-realist argument, and provides an excellent introduction to it. The exposition which follows may well be longer than the entire Succinct Case.

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 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.

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 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.

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