James Edwards

I’m an academic based at the University of Oxford. I mostly work in legal and moral philosophy. Below, you can find out what I’ve written, and what I’m working on now.

About me

I’m a Fellow of Worcester College, a Lecturer at Brasenose College, and an Associate Professor in the Oxford Faculty of Law.

Before Worcester, I was a Fellow of Christ’s College, Cambridge.

Before Christ’s, I was a graduate student at Magdalen College, Oxford (for the BCL) and at University College, Oxford (for my doctorate).

Before Oxford, I read law as an undergraduate at Cambridge.

Before Cambridge, I lived in York, in the north of England, where I attended the Joseph Rowntree School, my local comprehensive.

Contact

james.edwards@law.ox.ac.uk

Work in progress

Where I have a draft, I’ll happily share it.

Authority’s Service

• I consider four theses about practical authority and argue that they cannot stand together. I ask which we should discard and which we should embrace. The four theses:
  • Power: practical authority is a normative power.
  • Choice: P has a normative power when and because it is all-things-considered desirable that P has the ability to choose whether or not to change the normative situation in the respects in which the power enables P to change it.
  • Service: practical authority is justified (in the normal case) by the service it provides to those who are subject to the authority.
  • Normal Justification: P has practical authority over Q (in the normal case) when and because Q is likely to better conform to reasons that apply to Q by trying to follow P’s directives than by trying to follow those reasons directly.

On Practical Justification

• I defend an account of practical justification (i.e. the justification of action rather than belief). Let φ be an action. Let P be a person. Let r be a reason for P to φ. According to
  • The Tripartite View—P is justified in φing if and only if (i) r is undefeated; (ii) P φs for r; and (iii) P lives up to our expectations of her, as a responsible agent, in using r as she does. 
• I begin by locating practical justification within the normative landscape. I then clarify the components of the tripartite view and compare it with some rivals. To decide which we should prefer, we need a standard of success. I propose what I call the evaluative test: an account of justification succeeds only if the acts it counts as justified are those acts which realise the value of justification. The tripartite view should be preferred to its rivals, I ultimately argue, because it is the account of justification that meets this test.

The Power to Forgive (with Adam Perry)

• What is it to forgive? The dominant view is that A forgives B if and only if A undergoes the right kind of emotional change. This view should be rejected: it counts too few acts as forgiveness, and fails to explain the normative difference forgiveness can make. Instead, we should endorse a pluralist view, according to which A forgives B if and only if A either (1) undergoes the right kind of emotional change or (2) makes the right kind of declaration. A declaration of the right kind is an exercise of a normative power, which reverses certain normative changes brought about by that for which B is forgiven. A has this power when and because it is desirable that A have a means of conserving the status quo ante in her personal relations with B. Undergoing the right kind of emotional change serves a similar conservative function, which unifies the two species of forgiveness. Endorsing this pluralist view helps to explain why only some people can forgive, why some acts may be unforgivable, and why both questions have been so vexed.

Published Work

A. Chapters and Entries

1. ‘Justification and Duty’ (with Andrew Simester) in L Green and B Leiter (eds) Oxford Studies in Philosophy of Law: Volume 5 (OUP forthcoming).
2. ‘What We Can Say to Each Other’ in R Chang and A Srinivasan (eds) Conversations in Normative Philosophy (OUP forthcoming).
   • What can we say to each other? It is now commonly claimed that an adequate answer to this question must be speaker-relative. It must acknowledge that what we can say to each other depends not just on what we propose to utter, but also on which of us proposes to utter it. One question is: why do facts about us make it wrong for us to criticise others? A second is: why do such facts deprive us of the power to obligate others to explain themselves to us? Though attention has lately been paid to the former question, the focus of this chapter is the latter. It explores a range of cases in which, as a matter of conventional morality, speakers are deprived of (what I call) the explanatory power on biographical grounds. And it asks why, as a matter of critical morality, speakers ought to lack that power on those grounds. The chapter also argues that no single explanation is forthcoming: it is disunity, not unity, that characterises the range of considerations that determine what we can (and cannot) say to each other.
3. ‘Explaining Ourselves in Court’ in MM Dempsey and F Tanguay-Renaud (eds) From Law to Morality and Back Again: A Liber Amicorum for John Gardner (OUP 2023).
   • Justifications and excuses figure in our lives apart from the law. Why, if at all, should they figure in the life of the criminal law? John Gardner offers us an arresting answer to this question: eliciting justifications and excuses from responsible agents, he claims, is the primary function of the criminal law. This chapter offers some reasons to doubt that the arresting answer is the right one. It does not deny that eliciting rational explanations from responsible agents is a function of the criminal law. It does claim, however, that the explanatory function is parasitic on others, and that it lacks primacy in two senses of that term. The chapter concludes by suggesting that we should agree with HLA Hart. Criminal law’s primary function, it is claimed, is not explanatory but preventive: it is fulfilled by criminal laws that harness our responsible agency in ways that help reduce the incidence of wrongdoing.
4. ‘John Gardner’ in M Sellers and S Kirste (eds) Encyclopedia of the Philosophy of Law and Social Philosophy (Springer 2021).
5. ‘The Legal Enforcement of Morality’ in M Sellers and S Kirste (eds) Encyclopedia of the Philosophy of Law and Social Philosophy (Springer 2021).
6. ‘No Offence’ in L Alexander and KK Ferzan (eds), The Palgrave Handbook of Applied Ethics and Criminal Law (Palgrave 2019).
   • According to the offense principle, the fact that wrongs are offensive makes them eligible for criminalization. Section I unpacks this principle. Section II discusses what it is for X to be offensive. Section III argues that, whether we interpret offensiveness subjectively or objectively, the offense principle is not a sound principle. The fact that a wrong is objectively offensive does not bear on whether it should be criminalized. The fact that a wrong is subjectively offensive is no reason to tackle it using the criminal law. Section IV considers the conditions under which offense has value. It argues that, under some conditions, the fact that X is subjectively offensive counts against criminalizing X, while the fact that X is not subjectively offensive counts in favor of criminalization. Feinberg’s version of the offense principle—which holds that subjective offensiveness gives us reason to criminalize—is something close to the opposite of the truth.
7. ‘Theories of Criminal Law’ in Zalta (ed), The Stanford Encyclopedia of Philosophy (2018).
   • Any theory of criminal law must explain why criminal law is distinctive—why it is a body of law worthy of separate attention. This entry begins by identifying features of criminal law that make this so (§1). It then asks what functions that body of law fulfills (§2), and what justifies its creation and continued existence (§3). If criminal law should be retained, we must consider its proper limits (§4). We must consider the conditions under which agents should be criminally responsible for whatever falls within those limits (§5). And we must ask which rules of procedure and evidence should govern efforts to establish criminal responsibility (§6). The focus of this entry is Anglo-American criminal law and scholarship thereon. Many of the questions raised, and many of the answers considered, are nonetheless of general application.
8. ‘An Instrumental Legal Moralism’ in L Green and B Leiter (eds) Oxford Studies in Philosophy of Law: Volume 3 (OUP 2018)
   • Many writers defend or attack the position nowadays known as legal moralism. According to the most common formulation, legal moralists endorse the following thesis: the fact that φing is morally wrong is a reason to criminalize φing. This chapter considers a different kind of legal moralism, here called instrumental legal moralism (ILM). According to ILM: the fact that criminalizing φing will probably prevent moral wrongs is a reason to criminalize φing. Section I draws some relevant distinctions. In doing so, it clarifies the difference between ILM and the act-centred legal moralism (ALM) commonly discussed in the literature. Sections II–IV consider two prominent arguments for ALM: the retributivist argument, offered by Michael Moore, and the answerability argument, offered by Antony Duff. The chapter shows that, contrary to the intentions of these authors, both arguments in fact support ILM.
9. ‘Prevention with a Moral Voice’ (with Andrew Simester) in Simester, du Bois-Pedain and Neumann (eds), Liberal Criminal Theory: Essays for Andreas von Hirsch (Hart 2014).
10. ‘Hart’s Readers’ (with Luis Duarte d’Almeida and Andrea Dolcetti) in Duarte d’Almeida Edwards and Dolcetti (eds), Reading HLA Hart’s The Concept of Law (Hart Publishing, 2013).
11. ‘Criminal Law’ (with John Gardner) in LaFollette (ed), The International Encyclopedia of Ethics (Wiley, 2013).

B. Journal Articles

1. ‘Legal Imperfectionism’ (2024) Jurisprudence (available online).
   • What role do moral norms play in the justification of legal norms? I explore an answer that emphasises the moral significance of imperfection—of the fact that we are imperfect people, who live imperfect lives, and who have imperfect tools at our disposal for responding to our predicament. These imperfections, I argue, help make the case for (one version of) the harm principle. And they help make the case against the claim traditionally associated with legal moralism, namely that moral duties give law-makers reason to create legal duties with the same content. To accept all this is compatible with accepting—as I also claim here—that legal norms which help us better conform to moral norms are legal norms there is reason for law-makers to create. Those who accept this are nowadays dubbed perfectionists. Following John Gardner, I suggest that they are better thought of as legal imperfectionists. 
2. ‘Justification and Motivation’ (2023) Criminal Law and Philosophy (available online).
   • According to the motivational thesis (MT), we are justified in performing an action if and only if we perform that action for the right reason(s). Proponents of MT disagree about how it is best interpreted—about what count as reasons of the right kind. In Fundamentals of Criminal Law, Andrew Simester criticises an interpretation offered by John Gardner. Here, I explore some of Simester’s reasons for objecting to that interpretation, and I argue—partly on the basis of those same reasons—that Simester’s own interpretation of MT should be revised. I conclude with a preliminary defence of an alternative interpretation, which I call the tripartite view of justification.
3. ‘The Internal Morality of Criminal Law’ (with Tarek Yusari) (2023) 43 Oxford Journal of Legal Studies 475.
   • According to a popular picture, criminal law lives up to the demands of its internal morality when its norms have counterparts with the same content in morality—when it conforms to what we call the mirror principle. This article argues that the popular picture must be redrawn by relying on a second principle which we call the instrumental principle. Criminal law conforms to the instrumental principle when the existence of its norms helps to prevent or ameliorate moral wrongdoing. Our argument is that the instrumental principle forms part of the internal morality of criminal law, and supplies a justification for criminal laws that depart from the mirror principle. We further suggest that criminal law’s internal morality is asymmetrical: though departures from the mirror principle are sometimes justified by the instrumental principle, departures from the latter are not justified by the former.
4. ‘Standing to Hold Responsible’ (2019) 16 Journal of Moral Philosophy 437-462.
   • We often hold others responsible, and are held responsible ourselves. Many philosophers claim that to evaluate such holdings, we must consider the standing of the holder. Many also claim that both hypocrites and meddlers lack standing. Little has been said, however, about what exactly standing is—about what it is that hypocrites and meddlers are supposed to lack. Though talk of standing is now widespread, ‘we do not’, in Joseph Raz’s words, ‘have an unproblematic grasp of the phenomena referred to’ by such talk. In this paper I attempt to improve that grasp. I offer an account of what it is to have, and lack, standing to hold others responsible. And I offer some reasons why, if this account is accepted, both hypocrites and meddlers should lack standing.
5. ‘Crime, Blameworthiness, and Outcomes’ (with Andrew Simester) (2019) 39 Oxford Journal of Legal Studies 50-73.
   • If criminal law blamed in a way that accurately reflected blameworthiness, what would it say about the outcomes of our actions? On one view, criminal law would be outcome-insensitive: all crimes would be defined in the inchoate mode, and outcomes would be irrelevant to the quantum of punishment. On a second view, criminal law would be doubly outcome-sensitive: some crimes would be defined in terms of outcomes, and more punishment would be imposed where those outcomes occurred. Here, we reject both of these views in favour of a third. While the outcomes of our actions affect which wrongs we commit, they do not make us more blameworthy for committing them. A criminal law that accurately reflected blameworthiness would convict those who commit significantly different wrongs of different crimes. It would punish those who are equally blameworthy to the same degree. So the outcomes of our actions would be relevant to criminalisation. But they would be irrelevant to the quantum of punishment imposed.
6. ‘Laws That Are Made to Be Broken’ (2018) 12 Criminal Law and Philosophy 587-603.
   • Criminal laws are created to achieve various ends. These include (1) reducing the incidence of wrongdoing, and (2) holding wrongdoers responsible for their wrongs. Some criminal laws are created to further the first of these ends by means of compliance. The second end is to be furthered only if, regrettably, some fail to comply. These criminal laws are made to be followed. Other criminal laws are not created with compliance in mind. Conviction, in these cases, is no regrettable fallback. It is the primary means by which the law is to contribute to ends (1) and (2). Laws of this second kind are made to be broken. My concern in this paper is with the creation of such laws. Section 1 sharpens the contrast drawn above, and considers some arguments for enacting laws that are made to be broken. The following sections develop an argument against. Section 2 introduces what I call the identification principle. It argues that the principle is an implication of the ideal of the rule of law, and that it binds state officials who make, apply and enforce criminal laws. Section 3 argues that when laws are made to be broken, the identification principle is violated. Section 4 concludes.
7. ‘Criminal Law’s Asymmetry’ (2018) 9 Jurisprudence 276-299. 
   • Criminal law confers powers and grants permissions. In doing so it does not treat all alike. Some state officials (and some of their delegates) are given powers and permissions that are much more extensive than those given to private persons (who are not delegates). As a result, steps taken to achieve criminal justice are often serious crimes if taken by members of the latter group, while being perfectly lawful when taken by members of the former. My question here is what justifies this asymmetry. I consider two candidate explanations. One appeals to impossibility. Another appeals to efficiency. While explanations of the first kind have become increasingly popular, I offer some reasons to doubt that they succeed. I conclude with a preliminary defence of a view that appeals to efficiency.
8. ‘Criminalization Without Punishment’ (2017) 23 Legal Theory 69-95.
   • What is the relationship between a theory of permissible criminalization and a theory of permissible state punishment? One answer runs as follows: to identify the conditions under which it is permissible to criminalize, we must first identify the conditions under which it is permissible for the state to punish. The latter set of conditions doubles as part of the former set. Call this the punishment thesis. It is a thesis with some prominent advocates, but explicit defenses are hard to find. In this paper, I ask how such a defense might proceed. Section I clarifies the punishment thesis itself. Sections II–IV consider a number of arguments in its favor. My contention is that none of these arguments succeeds. Unless a better argument can be found, we should reject the punishment thesis.
9. ‘What’s Public About Crime?’ (with Andrew Simester) (2017) 37 Oxford Journal of Legal Studies 105-133.
   • It is often claimed that the fact that some wrongs are public is a fact that is important to our thinking about permissible criminalisation. We argue that it is not. Some say: what gives us reason to criminalise wrongs—when we have such a reason—is the fact that those wrongs are public. Others say: the fact that a wrong is public is a necessary condition of there being reason to criminalise that wrong, or of its permissible criminalisation. What we should make of these statements depends on what is meant by a public wrong. If the claim that a wrong is public is simply the conclusion of a sound argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements are true, but trivially so. If the claim that a wrong is public is a premise in an argument that there is reason to criminalise the wrong, or that the wrong is permissibly criminalised, the above statements, we argue, are false. We conclude that it would be better, when we think about permissible criminalisation, to do without the idea of a public wrong.
10.  ‘Harm Principles’ (2014) 20 Legal Theory 253-285.
    • Much time has been spent arguing about the soundness of “the harm principle.” But in the philosophical literature there is no single such principle; there are many harm principles. And many objections pressed against “the harm principle” are objections to only some of these principles. The first half of this paper draws a number of distinctions between harm principles. It then argues that each harm principle is compatible with many other principles that impose limits on the law, including but not limited to other harm principles. The second half of the paper applies the lessons of the first to a number of prominent objections to “the harm principle.” That principle has been accused of a) being underinclusive; b) misrepresenting the reasons why many act-types ought to be legally proscribed; c) permitting lawmakers to treat people as mere means of achieving their ends; and d) being overinclusive. The paper argues that one harm principle survives all four objections.
11. ‘Some Claims About Law’s Claims’ (with Luis Duarte d’Almeida) (2014) 33 Law and Philosophy 725-746.
    • Our paper has three parts. In Part 1, we discuss John Gardner’s thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner’s: that it makes no sense to ascribe to law the claim that there are legal obligations , and that law’s claim is the claim that there are moral obligations . We take issue with Gardner’s arguments for , and suggest that is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim.
12. ‘Wrongfulness and Prohibitions’ (with Andrew Simester) (2014) 8 Criminal Law and Philosophy 171-186.
    • This paper responds to Antje du-Bois Pedain’s discussion of the wrongfulness constraint on the criminal law. Du-Bois Pedain argues that the constraint is best interpreted as stating that φing is legitimately criminalised only if φing is wrongful for other-regarding reasons. We take issue with du-Bois Pedain’s arguments. In our view, it is neither a necessary nor sufficient condition of legitimate criminalisation that φing is wrongful in du-Bois Pedain’s sense. Rather, it is a necessary condition of legitimate criminalisation that φing is what we call bare wrongful —that is, that the reasons in favour of φing are defeated by the reasons against. Though du-Bois Pedain is critical of this view, we argue that her criticisms do not convince
13. ‘Coming Clean About the Criminal Law’ (2011) 5 Criminal Law and Philosophy 315-332.
    • This paper addresses three doctrinal phenomena of which it finds evidence in English law: the quiet extension of the criminal law so as to criminalise that which is by no means an obvious offence; the creation of offences the goal of which is not to guide potential offenders away from crime; and the existence of offending behaviour which is not itself thought to justify arrest or prosecution. While such phenomena have already been criticised by other criminal law theorists, this paper offers a critique to which little attention has yet been paid. It argues that the existence of these phenomena has been concealed from public view: that the organs of state have encouraged the belief that they are no part of English law. The paper then argues that it is high time the state came clean. The state owes its people answers for the imposition of the criminal law: it must account for the creation and enforcement of any given criminal offence. When the state misleads its people about the criminal law’s scope, goals and enforcement, it refuses to provide those people with the answers they are owed.
14. ‘Justice Denied: The Criminal Law and the Ouster of the Courts’ (2010) 30 Oxford Journal of Legal Studies 725-748.
    • The character of contemporary criminal law is changing. This article examines one aspect of that change: a type of criminal offence which, it is argued, effectively ousts the criminal courts. These ‘ouster offences’ are first distinguished from more conventional offences by virtue of their distinctive structure. The article then argues that to create an ouster offence is to oust the criminal courts by depriving them of the ability to adjudicate on whatever wrongdoing the offence-creator takes to justify prosecuting potential defendants. The article further argues that creating such an ouster is objectionable on a number of grounds. It deprives the courts of the ability to adjudicate independently, and undermines their ability to deliver procedural justice in both pure and imperfect form. While the ouster in question is by no means express, the article argues that it is nonetheless of the first importance.

C. Books

1. Key Ideas in Criminal Law (with Andrew Simester) (Bloomsbury forthcoming).
2. Reading H.L.A. Hart’s The Concept of Law (with Luis Duarte d’Almeida and Andrea Dolcetti) (Hart 2013).
   • More than 50 years after it was first published, The Concept of Law remains the most important work of legal philosophy in the English-speaking world. In this volume, written for both students and specialists, 13 leading scholars look afresh at Hart’s great book. The volume proceeds sequentially through all the main ideas in The Concept of Law: each contributor addresses a single chapter of Hart’s book, critically discussing its arguments in light of subsequent developments in the field. Four concluding essays assess the continued relevance for jurisprudence of the ‘persistent questions’ identified by Hart at the beginning of The Concept of Law. The collection also includes Hart’s ‘Answers to Eight Questions’, written in 1988 and never before published in English. 

D. Reviews

1. ‘Rationale-Based Defences in Criminal Law by Mark Dsouza’ (2018) 81(2) Modern Law Review 385-389. 
2. ‘Master Principles of Criminalisation’ (2016) 7(1) Jurisprudence 138-148.
3. ‘The Ends of Harm by Victor Tadros’ (2012) 128 Law Quarterly Review 466-469.
4. ‘Crimes, Harms, and Wrongs by AP Simester and Andreas von Hirsch’ (2012) 1 Criminal Law Review 75-78.