JURISPRUDENCE (A595)
KENNETH EINAR HIMMA
Spring 2012
(Tuesday & Thursday, Room 212, 8:30 a.m.–10:20 a.m. Friday, April 20, May 4, Room
212, 8:30 a.m.–10:20 a.m.)
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OFFICE HOURS AND CONTACT INFORMATION
Office: Room 326│ Tel: (206) 240-9727│ E-mail: himma@uw.edu
Office hours: Tuesdays, 10:30 a.m. – 12:00 p.m, and by appointment.
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INTRODUCTION
This course is a survey of the classic questions in jurisprudence, the study of the nature,
norms, and justifications of legal systems. Questions addressed include: How do judges
decide cases? Do legal rules or standards constrain judicial decision-making? What
makes a rule (or norm) a rule of law? Is morality legally binding regardless of whether it
has been enacted into a law by a legislature? How should cases be decided when there is
no controlling "law"? Can there be "right" answers to legal disputes or is legal reasoning
essentially indeterminate? What is distinctive about judicial decision-making? The course
will cover the major twentieth- and twenty-first century schools of jurisprudential thought,
especially American Legal Realism, Natural Law, Legal Positivism, and Critical Legal
Theory. No familiarity with either jurisprudence or philosophy will be presupposed,
though some readings may be philosophically demanding.
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MATERIALS
The casebook for this course is HIMMA, K. (ED.), THE NATURE OF LAW: PHILOSOPHICAL
ISSUES IN CONCEPTUAL JURISPRUDENCE AND LEGAL THEORY (FOUNDATION PRESS, 2011)
In addition, I will occasionally assign materials which will be posted in .pdf form via
TWEN. I will also post Word Outlines or PowerPoint slides from class form on the
TWEN site. Please make use of the course website on TWEN, including to post
discussion questions for your classmates, etc. Currently, I have set up the site to permit
anonymous posting, in the event that any of you are embarrassed or reticent about raising
a particular question, or wish to give me feedback or suggestions without revealing your
name. However, I hope that anonymous posting will be kept to a bare minimum. Please
do not abuse this system, which is solely for the purpose of facilitating and encouraging
open discussion.
Recommended readings can be found in COLEMAN, SHAPIRO (EDS), AND HIMMA (ASSOC.
ED.), OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW, (OXFORD UP,
2001), which is placed on course reserve.
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COURSE POLICIES AND EXAMINATION
There will be an open book final examination for this class at the end of the quarter. The
exam is currently scheduled for May 23 at 1:00 pm, but might be subject to change. You
may consult any materials you wish, including your own notes, outlines, and any
commercial study guides. In most cases, your final grade for the class will be based
entirely on your grade on the examination. However, I reserve the right to adjust a
student’s grade upward or downward on the basis of participation in and attendance in
class. The law school’s grading policy is available at
http://www.law.washington.edu/Students/Academics/Grading.html.
It is your responsibility to be fully prepared for each class, including by being prepared to
analyze and discuss each of the discussion questions in the assigned reading. I would like
to encourage you to take your exam by computer if at all possible. While you are not
required to do so, typing your exams greatly improves their legibility and helps to ensure
that they will be graded in an expeditious manner. If you are using a computer to take an
exam, you will be required to use Extigrity’s Exam 4. You may need to register with
Academic Services in advance.
READING ASSIGNMENTS
The list of reading assignments is aspirational. Each class tends to spend more time on certain
issues than others, so it will likely be necessary to make adjustments during the term.
WEEK 1: Introduction: The Subjects of Jurisprudence
Tuesday, March 27: Course Introduction and Some Key Distinctions
No readings assigned.
Thursday, March 29: The Nature of Law: What is Conceptual Analysis?
Chapter 13, pp. 484–535; (Omit 496-502).
WEEK 2: The Nature of Law: Classical Natural Law Theory; Early Positivism and
Its Problems
Tuesday, April 3: Classical Natural Law Theory
Himma, Chapter 1.
(Recommended) Finnis, “Natural Law: The Classical Tradition” in Oxford
Handbook of Jurisprudence and Philosophy of Law.
Thursday, April 5: Austin’s Command Theory of Law
Himma, Chapter 2.
WEEK 3: The Nature of Law: Hartian Positivism and Dworkin’s Critique of
Positivism
Tuesday, April 10: Hartian Positivism: The Relationship between Law and Morality
Chapter 3, pp. 50-58; Chapter 5, 94-104; Chapter 7, 171-179
(Recommended) Himma, “Inclusive Legal Positivism,” in Oxford Handbook of
Jurisprudence and Philosophy of Law, pp. 125-36
Thursday, April 12: Hartian Positivism (cont.), Dworkin on Social Rules and Theoretical
Disagreement
Chapter 3, 59-End; Chapter 4, 68-74; Chapter 7, 241-250
WEEK 4: Dworkin’s Critique of Positivism and His Third Theory of Law
Tuesday, April 17: Dworkin’s Attack: Positivism and the Theory of Adjudication
Chapter 4, 75 to End.
Chapter 8, 267-268.
Thursday, April 19: Dworkin’s Third Theory
Chapter 5.
Friday, April 20: Catch-up Session
WEEK 5: Inclusive and Exclusive Positivism; Law, Morality, and the Nature of
Authority
Tuesday, April 24: Inclusive and Exclusive Positivism
Chapter 8.
(Recommended): Himma, “Inclusive Legal Positivism,” and Marmor, “Exclusive
Legal Positivism,” Oxford Handbook of Jurisprudence and Philosophy of Law
Thursday, April 26: Authority and the Possibility of Moral Criteria of Validity
Chapter 9, 271-288.
WEEK 6: The Theory of Adjudication: How Should Judges Decide Cases?
Tuesday, May 1: Legal Formalism
Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, (Harvard UP,
1993), 170-74
Holmes, “The Path of the Law,” 10 Harvard Law Review 456, 465-68 (1897)
Scalia, A Matter of Interpretation (Princeton UP, 1997), 23-25
Thursday, May 3: Originalism and Constitutional Interpretation
Bork, The Tempting of America, Chapters 7 and 8
Excerpt from Roe v. Wade
Dworkin, Freedom’s Law, Chapter 1
Friday, May 4: Catch-up
WEEK 7: The Theory of Adjudication: How Should Judges Decide Cases?
Tuesday, May 8: Legal Objectivity and Determinacy
Chapter 12, 391-417.
Thursday, May 10: Skeptical and Non-Skeptical Theories of Moral Objectivity
Chapter 12, 417-437
WEEK 8: The Theory of Law and Adjudication: Legal Realism and Critical Legal
Studies
Tuesday, May 15
Chapter 12, 437-453
Thursday, May 17
Chapter 12, 453-482