John Gardner Oxford University
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  • Faculty, Oxford University
  • DPhil, Oxford University, 1994.

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  • None specified

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About me
Professor of Jurisprudence at the University of Oxford
My works
59 found

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  1.  63
    Prohibiting Immoralities.John Gardner - manuscript
    Destined for the Cardozo Law Review. Posted 28 November 2006.
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  2.  62
    Reply to Critics.John Gardner - manuscript
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  3. Some Types of Law.John Gardner - manuscript
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  4.  54
    Human Disability.John Gardner & Timothy Macklem - manuscript
    Draft, not yet submitted for publication. Posted 12 February 2008.
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  5. I-Egal Positivism: 5 Vi Myths.John Gardner - forthcoming - American Journal of Jurisprudence.
     
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  6.  19
    Fifteen Themes From Law as a Leap of Faith.John Gardner - 2015 - Jurisprudence 6 (3):601-623.
    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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  7.  4
    Lippert-Rasmussen, Kasper.Born Free and Equal? A Philosophical Inquiry Into the Nature of Discrimination.New York: Oxford University Press, 2014. Pp. Xii+317. $65.00. [REVIEW]John Gardner - 2015 - Ethics 125 (4):1204-1210.
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  8.  13
    Review: Kasper Lippert-Rasmussen, Born Free and Equal? A Philosophical Inquiry Into the Nature of Discrimination. [REVIEW]John Gardner - 2015 - Ethics 125 (4):1204-1210.
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  9.  17
    Law as a Leap of Faith as OTHERS See IT.John Gardner - 2014 - Law and Philosophy 33 (6):813-842.
    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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  10. Law as a Leap of Faith: Essays on Law in General.John Gardner - 2014 - Oxford University Press UK.
    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 (...)
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  11.  12
    Finnis on Justice.John Gardner - 2013 - In John Keown & Robert P. George (eds.), Reason, Morality, and Law: The Philosophy of John Finnis. Oxford University Press. pp. 151.
  12.  79
    Reasons and Abilities: Some Preliminaries.John Gardner - 2013 - American Journal of Jurisprudence 58 (1):63-74.
    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 (...)
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  13.  78
    How Law Claims, What Law Claims.John Gardner - 2012 - In Matthias Klatt (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy. Oxford University Press.
    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 (...)
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  14.  14
    Law as a Leap of Faith: Essays on Law in General.John Gardner - 2012 - Oxford University Press.
    Law as a leap of faith -- Legal positivism : 5 1/2 myths -- Some types of law -- Can there be a written constitution? -- How law claims, what law claims -- Nearly natural law -- The legality of law -- The supposed formality of the rule of law -- Hart on legality, justice, and morality -- The virtue of justice and the character of law -- Law in general.
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  15.  21
    Wrongdoing by Results: Moore's Experiential Argument.John Gardner - 2012 - Legal Theory 1 (1):1-13.
    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 In this comment I attempt to analyze Moore's in some detail and thereby to bring out why it does not (...)
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  16. Wrongdoing by Results: Moore's Experiential Argument: Wrongdoing by Results.John Gardner - 2012 - Legal Theory 18 (4):459-471.
    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 (...)
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  17.  56
    Can There Be a Written Constitution?John Gardner - 2011 - In Leslie Green & Brian Leiter (eds.), Oxford Studies in Philosophy of Law. Oxford University Press.
    The existence of unwritten constitutions, such as that of the UK, strikes some as puzzling. However the existence of unwritten constitutions turns out to be easier to explain than the existence of written constitutions, such as that of the US. In this paper I explore, and attempt to answer, some tricky conceptual questions thrown up by written constitutions.
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  18.  70
    Relations of Responsibility.John Gardner - 2011 - In Rowan Cruft, Matthew H. Kramer & Mark R. Reiff (eds.), Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff. Oxford University Press. pp. 87--102.
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  19.  37
    Desert and Avoidability in Self-Defense.John Gardner & François Tanguay-Renaud - 2011 - Ethics 122 (1):111-134.
  20. Ethics and Law.John Gardner - 2010 - In John Skorupski (ed.), The Routledge Companion to Ethics. Routledge.
     
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  21. Hart on Legality, Justice and Morality.John Gardner - 2010 - Jurisprudence 1 (2):253-265.
    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 (...)
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  22. Justification Under Authority.John Gardner - 2010 - Canadian Journal of Law and Jurisprudence 23 (1):71-98.
    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 (...)
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  23. Law and Morality.John Gardner - 2010 - In John Skorupski (ed.), The Routledge Companion to Ethics. Routledge.
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  24. What is Tort Law For? Part 1. The Place of Corrective Justice.John Gardner - 2010 - Law and Philosophy 30 (1):1-50.
    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 (...)
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  25.  8
    Legal Positivism.John Gardner - 2009 - In Aileen Kavanagh & John Oberdiek (eds.), Arguing About Law. Routledge. pp. 153.
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  26. The Logic of Excuses and the Rationality of Emotions.John Gardner - 2009 - Journal of Value Inquiry 43 (3):315-338.
    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 (...)
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  27.  97
    Hart and Feinberg on Responsibility.John Gardner - 2008 - In Matthew H. Kramer (ed.), The Legacy of H. Oxford University Press.
    Forthcoming in Kramer et al (eds), The Legacy of H.L.A. Hart. Posted 8 February 2008.
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  28. Hart on Responsibility.John Gardner - 2008 - In Matthew Kramer, Claire Grant, Ben Colburn & Antony Hatzistavrou (eds.), The Legacy of H.L.A. Hart: Legal, Political and Moral Philosophy. Oxford University Press.
     
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  29.  52
    Review of Douglas Husak, Overcriminalization: The Limits of the Criminal Law[REVIEW]John Gardner - 2008 - Notre Dame Philosophical Reviews 2008 (8).
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  30. Simply in Virtue of Being Human': The Whos and Whys of Human Rights.John Gardner - 2008 - Journal of Ethics and Social Philosophy 2 (2).
    In this paper I raise some questions about the familiar claim, recently reiterated by James Griffin, that human rights are rights that humans have….
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  31. Nearly Natural Law.John Gardner - 2007 - American Journal of Jurisprudence 52 (1):1-23.
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  32.  42
    Offences and Defences: Selected Essays in the Philosophy of Criminal Law.John Gardner - 2007 - Oxford University Press.
    The wrongness of rape -- Rationality and the rule of law in offences against the person -- Complicity and causality -- In defence of defences -- Justifications and reasons -- The gist of excuses -- Fletcher on offences and defences -- Provocation and pluralism -- The mark of responsibility -- The functions and justifications of criminal law and punishment -- Crime : in proportion and in perspective -- Reply to critics.
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  33. Complicity and Causality.John Gardner - 2007 - Criminal Law and Philosophy 1 (2):127-141.
    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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  34. Law's Aims in Law's Empire.John Gardner - 2006 - In Scott Hershovitz (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin. Oxford University Press.
     
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  35.  80
    Value, Interest, and Well-Being.Timothy Macklem & John Gardner - 2006 - Utilitas 18 (4):362-382.
    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 (...)
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  36.  27
    Wrongs and Faults.John Gardner - 2005 - Review of Metaphysics 59 (1):95 - 132.
  37. 15 Backward and Forward with Tort Law.John Gardner & Torts as Wrongs - 2005 - In Joseph Keim Campbell, Michael O'Rourke & David Shier (eds.), Law and Social Justice. MIT Press. pp. 255.
     
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  38.  29
    The Legality of Law.John Gardner - 2004 - Ratio Juris 17 (2):168-181.
  39.  51
    The Wrongdoing That Gets Results.John Gardner - 2004 - Philosophical Perspectives 18 (1):53–88.
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  40. Christopher Kutz, Complicity: Ethics and Law for a Collective Age:Complicity: Ethics and Law for a Collective Age.John Gardner - 2004 - Ethics 114 (4):827-830.
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  41. Reasons.John Gardner & Timothy Macklem - 2004 - In Jules Coleman & Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford University Press.
     
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  42.  33
    Review of Nagel, Thomas, Concealment and Exposure and Other Essays[REVIEW]John Gardner - 2003 - Notre Dame Philosophical Reviews 2003 (7).
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  43.  18
    The Mark of Responsibility.John Gardner - 2003 - Oxford Journal of Legal Studies 23 (2):157-171.
    This paper tackles three common misconceptions about responsibility. The first misconception is that it is against our interests to be responsible for our actions. The second is that our responsibility for our actions is fixed at the time when we act. The third is that we can only be responsible to someone in particular, not responsible full stop. The three misconceptions turn out to be related, and disabusing ourselves of them helps us to rediscover the most fundamental point of the (...)
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  44.  9
    Reasons for Teamwork.John Gardner - 2002 - Legal Theory 8 (4):495-509.
  45. Reasons, Reasoning, Reasonableness.John Gardner & Timothy Macklem - 2002 - In Jules Coleman & Scott J. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford University Press.
     
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  46. Legal Positivism: 5½ Myths.John Gardner - 2001 - American Journal of Jurisprudence 46 (1):199-227.
  47. LEGAL POSITIVISM: 5 1/2 MYTHS.John Gardner - 2001 - American Journal of Jurisprudence 46 (1):199-227.
  48.  5
    Review Article. On the Ground of Her Sex.J. Gardner - 1998 - Oxford Journal of Legal Studies 18 (1):167-178.
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  49.  12
    On the General Part of the Criminal Law.John Gardner - 1998 - In Antony Duff (ed.), Philosophy and the Criminal Law: Principle and Critique. Cambridge University Press. pp. 205--256.
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  50.  11
    Discrimination as Injustice.J. Gardner - 1996 - Oxford Journal of Legal Studies 16 (3):353-368.
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  51. Action and Value in Criminal Law.Stephen Shute, John Gardner & Jeremy Hor - 1996 - Law and Philosophy 15 (1):81-87.
     
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  52.  9
    Criminal Law and the Uses of Theory: A Reply to Laing.Gardner John - 1994 - Oxford Journal of Legal Studies 14 (2):217-228.
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  53.  43
    Action and Value in Criminal Law.Stephen Shute, John Gardner & Jeremy Horder (eds.) - 1993 - Oxford University Press.
    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, (...)
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  54.  9
    Making Sense of Mens Rea: Antony Duff's Account.John Gardner & Heike Jung - 1991 - Oxford Journal of Legal Studies 11 (4):559-588.
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  55.  15
    Liberals and Unlawful Discrimination.John Gardner - 1989 - Oxford Journal of Legal Studies 9 (1):1-22.
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  56.  5
    Concerning Permissive Sources and Gaps.Gardner John - 1988 - Oxford Journal of Legal Studies 8 (3):457-461.
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  57. Torts and Other Wrongs.John Gardner - unknown
    It is hard to think of any contemporary writers who have done more than John Goldberg and Ben Zipursky to reassert and reinvigorate what might be called the classical interpretation of the common law of torts. I, for one, am greatly in their debt. They have taught me a great deal, not only about torts but also about how to combine legal argument felicitously with philosophical insight and historical scholarship. Like them, and partly because of them, I believe that the (...)
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  58.  40
    The Idea of Justice.John Gardner - unknown
    Although famous as an economist, Amartya Sen is no less distinguished as a philosopher. In this he is far from unique. The same went for the founding father of economics, Adam Smith. But in these days of increased academic specialization the combination of philosopher and economist is rarer than once it was. Moreover the philosophical contributions of contemporary economists, such as they are, tend to be relatively narrow. Some, notably John Harsanyi and Thomas Schelling, are rightly lauded by philosophers for (...)
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  59.  55
    The Many Faces of the Reasonable Person.John Gardner - unknown
    In this paper I attempt a general explanation of the role played by the reasonable person in law, especially but not only in the common law. I relate my explanation to some problems about the very nature of law, and some problems about the ideal of the rule of law.
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