Phil 414 – Philosophy of Law

Instructor: Ken Himma

Office: Savery M347C

Telephone: 543.5384

e-mail: himma@u.washington.edu

Office Hours: TBA

Website: http://faculty.washington.edu/himma

Texts: H.L.A. Hart, The Concept of Law (Oxford UP, 1994); Ronald Dworkin, Taking Rights Seriously (Harvard UP, 1978)

Course Description: In this course, we will be concerned with attempts to explain the content of the concept of law, which usually proceed by describing existence conditions for law. In particular, we will examine a variety of classical and contemporary accounts of law, including classical natural law theory, legal positivism, and Dworkin’s third theory of law. Along the way, we will consider a number of theoretical issues: (1) What is the relationship between the concepts of law and morality? Are there conceptually necessary moral constraints on the content of law? (2) Does law have a special function that distinguishes it from other normative systems? (3) How does law create (legal) obligations? (4) What does it mean to say that someone or some norm is “authoritative?” (5) What does judicial disagreement in hard cases tell us about the nature of law? (6) If law is wholly conventional in character, can there be moral constraints on the content of law? (7) What is the proper methodology for theorizing about the nature of law? (8) Is there any point to theorizing about the nature of law? There are no prerequisites for this course other than a willingness to think deeply about these issues.

Course Requirements: There will be a midterm and final exam worth 100 points each. At the student’s election, a term paper of 12 to 15 pages may be substituted for one of the exams. With instructor approval, a term paper of 22 to 25 pages may be substituted for both exams.

Grading policy: Your writing assignments, including exams, will be graded with the following considerations in mind: (1) organizational structure; (2) substantive content (including quality of explanations and analysis); and (3) quality of writing.

Your analysis and writing should be addressed to a reasonably intelligent audience unfamiliar with the material (i.e., people who have not taken this course). Key concepts and principles should be explained, rather than assumed, in reasonably accessible language. In addition, all of the critical steps in your argument and supporting analysis should be explicit and organized in a logical way. (It will help, I think, if you think of yourself as teaching the material to the reader.) In general, your writing should be clear, concise, and free of grammatical errors.

Electronic Reserves: All readings not in the text will be on e-reserves. The course page can be found at:

https://eres.lib.washington.edu/coursepage.asp?cid=2419 .

Course Readings: The following represents a tentative outline of the readings that will be covered in the class. This outline may be revised as the course progresses. Students should attend class to find out what material is assigned for the week.

Week 1 (9/29-10/3): Course Introduction and Classical Natural Law Theory

St. Thomas Aquinas, Summa Theologica I-II

William Blackstone, Commentaries, 38-40

John Austin, Province of Jurisprudence Determined, 157-159

Week 2 (10/6-10/10): Early Positivism: The Command Theory of Law

Austin, Province, Lectures I, VI

H.L.A. Hart, The Concept of Law, 26-35, 82-85

Week 3 (10/13-10/17): Hartian Positivism I: Law as the Union of Primary and Secondary Rules and the Problems of Judicial Disagreement

H.L.A. Hart, The Concept of Law, Chapters 5 and 6

Ronald Dworkin, Taking Rights Seriously, Chapter 3 (excerpt)

Ronald Dworkin, Law’s Empire, 1-11, 15-20, 31-46

H.L.A. Hart, The Concept of Law, Postscript, 244-248

Week 4 (10/20-10/24): Hartian Positivism II: The Concept of Legal Obligation and Judicial Discretion

Roger Shiner, Norm and Nature, Chapter 6 (excerpt)

Andrei Marmor, “Legal Conventionalism,” (excerpt)

Ronald Dworkin, Taking Rights Seriously, Chapters 2 and 4 (excerpts)

Week 5 (10/27-10/31): Dworkin’s Third Theory of Law

Dworkin, “Natural Law Revisited”

Dworkin, Law’s Empire, Chapter 3

Himma, “Trouble in Law’s Empire”

First Exam: Tuesday, October 28

Week 6 (11/3-11/7): Inclusive Legal Positivism and the Problem of Authority

Joseph Raz, “Authority, Law, and Morality”

Dworkin, “Thirty Years On”

Stephen Perry, “Judicial Obligation, Precedent, and the Common Law”

Jules Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis”

Week 7 (11/10-11/14): Inclusive Legal Positivism, Legal Functionalism and the Practical Difference Thesis

Scott Shapiro, “On Hart’s Way Out”

Jules Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis”

Matthew Kramer, “How Morality Can Figure Into the Law”

Himma, “H.L.A. Hart and the Practical Difference Thesis”

No Class: Tuesday, November 11

Week 8 (11/17-11/21): The Methodology of Analytic Jurisprudence

Hart, The Concept of Law, Preface and 239-244

Neil MacCormick, “A Moralistic Case for A-Moralistic Law?”

Perry, “The Varieties of Legal Positivism”

Perry, “Hart’s Methodological Positivism”

Week 9 (11/24-11/28): The Methodology of Analytic Jurisprudence (cont.)

Brian Leiter, “Naturalism, and Naturalized Jurisprudence”

Frank Jackson, From Metaphysics to Ethics, Chapters 1 and 2

No Class: Thursday, November 27

Week 10 (12/1-12/5): TBA