This volume contains eleven previously published essays on criminal law together with a new "Reply to Critics" by the Professor of Jurisprudence at Oxford, John Gardner. The principal themes of the essays, covering offences, defences, and punishment, are summarized in this review, which also highlights areas of controversy and various lines of criticism.

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. (shrink)

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. (shrink)

I. C. Jarvie interprets Popper's philosophy of science as a theory of the institution of science, explains how the social aspect of his theory developed, and suggests that an updated version of Popper's social theory should be used to study both scientific and nonscientific societies today. Although (1) Jarvie's description of the emergence of Popper's theory suffers because he takes no account Popper's research conducted before Logik der Forschung (1994), (2) his portrayal of Popper's framework overlooks important problems, and (3) (...) his program is by no means new, his essay throws light on the relation between Popper's philosophy of science, his social theory, and his social studies of science. (shrink)

In his absorbing book Art as Performance, David Davies argues that artworks should be identified, not with artistic products such as paintings or novels, but instead with the artistic actions or processes that produced such items. Such a view had an earlier incarnation in Currie’s widely criticized “action type hypothesis”, but Davies argues that it is instead action tokens rather than types with which artworks should be identified. This rich and complex work repays the closest study in spite of some (...) basic objections to be raised concerning Davies’s central concept of an action token. (shrink)

This article argues that John Gardner’s theory of corrective justice in _From Personal Life to Private Law_ relies on an overly narrow account of wrongdoing, one that it too heavily influenced by law to capture the broader conception of corrective justice that is his topic. I will suggest that these problems are avoided by a reconciliation theory of corrective justice.

Volume 19, Issue 7, July 2019, Page W4-W5.

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, 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. (shrink)

Professor John Gardner says on the jacket, “these essays – without exception insightful and penetrating – set a high standard for the rest of us to aspire to.” This collection of 15 essays by 16 Canadian authors originated in a conference at Osgoode Hall Law School, York University. The majority of contributors are based in southern Ontario . Two are from western Canada , two from the UK and one from the US . The essays are arranged in (...) three parts, the first being subdivided according to subject matter. It is a good thing for criminal law theorists to interest themselves in all facets of the subject. On the other hand, some will be deterred by the presence of essays on topics outside their specialty. It must be said that it is a well-produced book, even containing a subject index. I hope this book has wide circulation. (shrink)

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.

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.

“Fearless, illuminating” criticism from a New York Times–bestselling author and legendary teacher, “proving... that true art is moral and not trivial” (Los Angeles Times). Novelist John Gardner’s thesis in On Moral Fiction is simple: “True art is by its nature moral.” It is also an audacious statement, as Gardner asserts an inherent value in life and in art. Since the book’s first publication, the passion behind Gardner’s assertion has both provoked and inspired readers. In examining the (...) work of his peers, Gardner analyzes what has gone wrong, in his view, in modern art and literature, and how shortcomings in artistic criticism have contributed to the problem. He develops his argument by showing how artists and critics can reintroduce morality and substance to their work to improve society and cultivate our morality. On Moral Fiction is an essential read in which Gardner presents his thoughtfully developed criteria for the elements he believes are essential to art and its creation. This ebook features an illustrated biography of John Gardner, including original letters, rare photos, and never-before-seen documents from the Gardner family and the University of Rochester Archives. (shrink)

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? (shrink)

This classic guide, from the renowned novelist and professor, has helped transform generations of aspiring writers into masterful writers—and will continue to do so for many years to come. John Gardner was almost as famous as a teacher of creative writing as he was for his own works. In this practical, instructive handbook, based on the courses and seminars that he gave, he explains, simply and cogently, the principles and techniques of good writing. Gardner’s lessons, exemplified with (...) detailed excerpts from classic works of literature, sweep across a complete range of topics—from the nature of aesthetics to the shape of a refined sentence. Written with passion, precision, and a deep respect for the art of writing, Gardner’s book serves by turns as a critic, mentor, and friend. Anyone who has ever thought of taking the step from reader to writer should begin here. (shrink)

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. (shrink)

It has long been one of the most fundamental problems of philosophy, and it is now, John Searle writes, "the most important problem in the biological sciences": What is consciousness? Is my inner awareness of myself something separate from my body? In what began as a series of essays in The New York Review of Books, John Searle evaluates the positions on consciousness of such well-known scientists and philosophers as Francis Crick, Gerald Edelman, Roger Penrose, Daniel Dennett, (...) David Chalmers, and Israel Rosenfield. He challenges claims that the mind works like a computer, and that brain functions can be reproduced by computer programs. With a sharp eye for confusion and contradiction, he points out which avenues of current research are most likely to come up with a biological examination of how conscious states are caused by the brain. Only when we understand how the brain works will we solve the mystery of consciousness, and only then will we begin to understand issues ranging from artificial intelligence to our very nature as human beings. (shrink)

Scientists and 'anti-scientists' alike need a more realistic image of science. The traditional mode of research, academic science, is not just a 'method': it is a distinctive culture, whose members win esteem and employment by making public their findings. Fierce competition for credibility is strictly regulated by established practices such as peer review. Highly specialized international communities of independent experts form spontaneously and generate the type of knowledge we call 'scientific' - systematic, theoretical, empirically-tested, quantitative, and so on. Ziman (...) shows that these familiar 'philosophical' features of scientific knowledge are inseparable from the ordinary cognitive capabilities and peculiar social relationships of its producers. This wide-angled close-up of the natural and human sciences recognizes their unique value, whilst revealing the limits of their rationality, reliability, and universal applicability. It also shows how, for better or worse, the new 'post-academic' research culture of teamwork, accountability, etc. is changing these supposedly eternal philosophical characteristics. (shrink)

This book analyzes the philosophical foundations of sensorimotor theory and discusses the most recent applications of sensorimotor theory to human computer interaction, child's play, virtual reality, robotics, and linguistics. -/- Why does a circle look curved and not angular? Why doesn't red sound like a bell? Why, as I interact with the world, is there something it is like to be me? These are simple questions to pose but more difficult to answer. An analytic philosopher might respond to the first (...) by merely observing, ``if we ponder the concept `circle' we find that it is the essence of a circle to be round''; but where does this definition come from? Was it set in stone by the gods, the divine arbiters of circle-ness (red-ness and conscious-ness)? It is a measure of the importance of Kevin O'Regan and Alva Noe's 2001 paper `A sensorimotor account of vision and visual consciousness' that it reveals deep scientific and philosophical insight on these foundational issues of perception. -/- Opening with a chapter from Kevin O'Regan, this collection of new essays continues by presenting fifteen additional essays on as many developments achieved in recent years in this field. It provides readers with a critical review of the sensorimotor theory and in so doing introduces them to a radically new approach in cognitive science. (shrink)

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.

Socially responsible investment is a rapidly emerging phenomenon within the field of personal investment. However, the factors that lead investors to choose socially responsible investment products are not well understood, especially in an Australian context. This study provides a comparative examination of conventional and socially responsible investors, with the aim of identifying such factors. A total of 55 conventional investors and 54 ethical investors participated in the study by completing mailed questionnaires about their investment and general behaviour and their attitudes (...) and beliefs. Results indicated some important differences between socially responsible and conventional investors in their beliefs of the importance of ethical issues, their investment decision-making style, and their perceptions of moral intensity. These results support the notion that socially responsible investors differ in critical ways to conventional investors, and are discussed in terms of theoretical and practical implications. (shrink)

This volume provides a forum for some of the best new philosophical work on law, by both senior and junior scholars from around the world. The chapters range widely over issues in general jurisprudence (the nature of law, adjudication, and legal reasoning); the philosophical foundations of specific areas of law (from criminal law to evidence to international law); the history of legal philosophy; and related philosophical topics that illuminate the problems of legal theory.

Classic work by one of the most brilliant figures in post-war analytic philosophy.

This essay reviews John Gardner’s recent books, From Personal Life to Private Law, and Torts and Other Wrongs. Both books offer profound insights into private law’s concerns with justice and our reasons for action. The essay focuses on Gardner’s continuity thesis, and in particular on his idea that a third party may act on behalf of a wrongdoer as her delegee. Three settings are considered. First, I will discuss settings in which the state or another third party (...) acts to remedy a wrong without the wrongdoer’s consent. Second, I will review settings in which the legal remedies at issue – e.g., general damages or punitive damages – may not fit well with the idea that the state is acting on behalf of a wrongdoer. Third, I will analyze settings in which the state may be acting on behalf of right holders, yet still be concerned with the continuity thesis. Assessing each of these contexts offers further insights into the purpose of private law remedies. (shrink)

The Strange Situation procedure was developed by Ainsworth two decades agoas a means of assessing the security of infant-parent attachment. Users of the procedureclaim that it provides a way of determining whether the infant has developed species-appropriate adaptive behavior as a result of rearing in an evolutionary appropriate context, characterized by a sensitively responsive parent. Only when the parent behaves in the sensitive, species-appropriate fashion is the baby said to behave in the adaptive or secure fashion. Furthermore, when infants are (...) observed repeatedly in the Strange Situation,the pattern of behavior is said to be highly similar, and this pattern is said to predict the infants' future behavior in a diverse array of contexts. After an exhaustive review of the literature, it is shown that these popular claims are empirically unsupported in their strong form, and that the interpretations in terms of biological adaptationare misguided. There is little reliable evidence about the specific dimensions of parental behavior that affect Strange Situation behavior, although there does appear to be some relationship between these constructs. Temporal stability in security of attachment ishigh only when there is stability in family and caretaking circumstances. Likewise, patterns of Strange Situation behavior only have substantial predictive validity in similarly stable families. Implications for future research and theorizing — particularly as they relate to the use of evolutionary biology in psychological theory — are discussed. (shrink)

In recounting his discovery of special relativity, Einstein recalled a debt to the philosophical writings of Hume and Mach. I review the path Einstein took to special relativity and urge that, at a critical juncture, he was aided decisively not by any specific doctrine of space and time, but by a general account of concepts that Einstein found in Hume and Mach’s writings. That account required that concepts, used to represent the physical, must be properly grounded in experience. In (...) so far as they extended beyond that grounding, they were fictional and to be abjured (Mach) or at best tolerated (Hume). Einstein drew a different moral. These fictional concepts revealed an arbitrariness in our physical theorizing and may still be introduced through freely chosen definitions, as long as these definitions do not commit us to false presumptions. After years of failed efforts to conform electrodynamics to the principle of relativity and with his frustration mounting, Einstein applied this account to the concept of simultaneity. The resulting definition of simultaneity provided the reconceptualization that solved the problem in electrodynamics and led directly to the special theory of relativity. (shrink)

My object here is to try to make the idea of moral criticism, and its foundation, moral art, sound at least a trifle less outrageous than it does at present. I'd like to explain why moral criticism is necessary and, in a democracy, essential; how it came about that the idea of moral criticism is generally hoo-hooed or spat upon by people who in other respects seem moderately intelligent and civil human beings; and that the right kind of moral criticism (...) is, or should be. Partly this involves explaining why sophisticated modern free society tends to be embarrassed by the whole idea of morality and by all its antique, Platonic- or scholastic-sounding manifestations: Beauty, Goodness, Truth. In other words, it involves, partly, explaining how perverse and false philosophers, and educated but sequacious mind, obscuring truths once widely acknowledged; and partly it involves sketching out a way of thinking that might supplant the cowardly Laodicean habits into which American intellectuals have in recent times fallen. John Gardner, novelist, poet, and essayist, has received the National Book Critics Circle Award for his latest novel, October Light. His other popular works of fiction include Grendel, The Sunlight Dialogues, and the book-length poem, Jason and Medeia. He has, as well, prepared modern versions of the Gawain poems, an alliterative Morte Arthure and five other Middle English poems and written The Construction of the Wakefield Cycle, The Poetry of Chaucer, and the biography, The Life and Times of Chaucer. "Death by Art" is the first chapter of a book concerned with morality in literature. (shrink)

Within international development [1], public health [2], and clinical medicine [3]–[5], there is increasing interest in determining whether cash payments or other economic incentives can be used to influence the choices and behavior of individuals and groups in order to promote desired health goals. However, a number of complex issues affect the review and approval by research ethics committees of research studying the effectiveness of using financial incentives to promote desired health goals. Current ethical and regulatory frameworks regard the (...) provision of gifts or cash payments to participants in human research as potentially problematic. Specifically, these frameworks imply that such incentives may undermine the autonomy of participant choice, hinder the disclosure of medical information, exacerbate social inequalities, or result in the exploitation or degradation of vulnerable populations [6]–[9]. Typically, these frameworks provide guidance about payment to research participants to reimburse expenses, to compensate for time and effort, to provide insurance coverage, or as an incentive to participate in the research itself. However, the issue of payment as a component of the research intervention is relatively new. RECs thus lack explicit guidance about ethical issues surrounding research that evaluates the use of financial incentives as an intervention to promote health. (shrink)

This review considers a number of recent theories on the neural basis of consciousness, with particular attention to the theories of Bogen, Crick, Llinás, Newman, and Changeux. These theories allot different roles to various key brain areas, in particular the reticular and intralaminar nuclei of the thalamus and the cortex. Crick's hypothesis is that awareness is a function of reverberating corticothalamic loops and that the spotlight ofintramodalattention is controlled by the reticular nucleus of the thalamus. He also proposed different (...) mechanisms for attention and intention . The current review presents a new hypothesis, based on elements from these hypotheses, includingintermodalattention and olfaction and pain, which may pose problems for Crick's original theory. This work reviews the possible role in awareness and intermodal attention and intention of the cholinergic system in the basal forebrain and the tegmentum; the reticular, the intralaminar, and the dorsomedial thalamic nuclei; the raphe and locus coeruleus; the reticular formation; the ventral striatum and extended amygdala; insula cortex, and other selected cortical areas. Both clinical and basic research data are covered. The conclusion is reached that the brain may work by largely nonlinear parallel processing and much intramodal shifts of attention may be effected by intracortical, or multiple corticothalamic mechanisms . But this is constrained by the functional anatomy of the circuits concerned and waking “awareness” is modulated by the many “nonspecific” systems . But the principal agents for intermodal attention shifts, the “searchlight,” may be two key nuclei of the cholinergic system in the mesencephalon. Clinical loss of consciousness results from damage to these nuclei but not from damage to the cholinergic nucleus basalis of the basal forebrain. (shrink)

Neurofeedback (NF) aims to alter neural activity by enhancing self-regulation skills. Over the past decade NF has received considerable attention as a potential intervention option for many somatic and mental conditions and ADHD in particular. However, placebo-controlled trials have demonstrated insufficient superiority of NF compared to treatment as usual and sham conditions. It has been argued that the reason for limited NF effects may be attributable to participants' challenges to self-regulate the targeted neural activity. Still, there is support of NF (...) efficacy when only considering so-called “standard protocols,” such as Slow Cortical Potential NF training (SCP-NF). This PROSPERO registered systematic review following PRISMA criteria searched literature databases for studies applying SCP-NF protocols. Our review focus concerned the operationalization of self-regulatory success, and protocol-details that could influence the evaluation of self-regulation. Such details included; electrode placement, number of trials, length per trial, proportions of training modalities, handling of artifacts and skill-transfer into daily-life. We identified a total of 63 eligible reports published in the year 2000 or later. SCP-NF protocol-details varied considerably on most variables, except for electrode placement. However, due to the increased availability of commercial systems, there was a trend to more uniform protocol-details. Although, token-systems are popular in SCP-NF for ADHD, only half reported a performance-based component. Also, transfer exercises have become a staple part of SCP-NF. Furthermore, multiple operationalizations of regulatory success were identified, limiting comparability between studies, and perhaps usefulness of so-called transfer-exercises, which purpose is to facilitate the transfer of the self-regulatory skills into every-day life. While studies utilizing SCP as Brain-Computer-Interface mainly focused on the acquisition of successful self-regulation, clinically oriented studies often neglected this. Congruently, rates of successful regulators in clinical studies were mostly low (<50%). The relation between SCP self-regulation and behavior, and how symptoms in different disorders are affected, is complex and not fully understood. Future studies need to report self-regulation based on standardized measures, in order to facilitate both comparability and understanding of the effects on symptoms. When applied as treatment, future SCP-NF studies also need to put greater emphasis on the acquisition of self-regulation (before evaluating symptom outcomes).Systematic review registrationhttps://www.crd.york.ac.uk/prospero/display_record.php?ID=CRD42021260087, Identifier: CRD42021260087. (shrink)

This volume is a state-of-the-art review of the evidence and theory supporting the existence and significance of automatic processes in our daily lives, with chapters by the leading researchers in this field today.

My purpose in this chapter is to survey some of the principal approaches to inductive inference in the philosophy of science literature. My first concern will be the general principles that underlie the many accounts of induction in this literature. When these accounts are considered in isolation, as is more commonly the case, it is easy to overlook that virtually all accounts depend on one of very few basic principles and that the proliferation of accounts can be understood as efforts (...) to ameliorate the weaknesses of those few principles. In the earlier sections, I will lay out three inductive principles and the families of accounts of induction they engender. In later sections I will review standard problems in the philosophical literature that have supported some pessimism about induction and suggest that their import has been greatly overrated. In the final sections I will return to the proliferation of accounts of induction that frustrates efforts at a final codification. I will suggest that this proliferation appears troublesome only as long as we expect inductive inference to be subsumed under a single formal theory. If we adopt a material theory of induction in which individual inductions are licensed by particular facts that prevail only in local domains, then the proliferation is expected and not problematic. (shrink)

Here, we briefly review the notion of observational indistinguishability within the context of classical general relativity. We settle a conjecture given by Malament (1977) concerning the subject and then strengthen the result considerably. The upshot is this: There seems to be a robust sense in which the global structure of every cosmological model is underdetermined.

NEITHER in the scholarly nor in the philosophical literature on Aristotle does his account of friendship occupy a very prominent place. I suppose this is partly, though certainly not wholly, to be explained by the fact that the modern ethical theories with which Aristotle’s might demand comparison hardly make room for the discussion of any parallel phenomenon. Whatever else friendship is, it is, at least typically, a personal relationship freely, even spontaneously, entered into, and ethics, as modern theorists tend to (...) conceive it, deals rather with the ways in which people are required to regard, and behave toward, one another, than with the organization of their private affairs. To the extent, then, that one shares this modern outlook one will tend to neglect, or treat merely as an historical curiosity, Aristotle’s efforts to define friendship and to place it within the framework of human eudaimonia, the theory of which is central to moral philosophy as he understands it. Yet in the Nicomachean Ethics the two books on φιλία make up nearly a fifth of the whole, and this seems to me a fair measure of the importance of this subject to the complete understanding both of Aristotle’s overall moral theory and even of many of the more circumscribed topics to which so much scholarly and philosophical attention has been devoted. If, as I suggest, the failure of commentators to appreciate its importance is partly the effect of distortions produced by the moral outlook that has predominated in modern moral philosophy, the careful study of these books may help to free us from constricting prejudices and perhaps even make it possible to discover in Aristotle a plausible and suggestive alternative to the theories constructed on the narrower base characteristic of recent times. (shrink)