On Marmor's Philosophy of Law
16 Pages Posted: 22 Mar 2012 Last revised: 6 Aug 2014
Date Written: March 21, 2012
This piece critically reviews Andrei Marmor’s recent book Philosophy of Law, which he says is “not meant to be [a] comprehensive introduction to analytic jurisprudence,” but was rather written “as an argument for a particular position”: exclusive legal positivism. Exclusive legal positivism is one of the major contemporary views on the nature of law, and it can be characterized by two basic claims: first, that one can account for what law is in purely descriptive terms, and, second, that legal validity is based solely on social facts.
Marmor’s arguments for exclusive legal positivism are rooted in a particular reading of certain historical lines of thought developed by Kelsen and Hart; they are sensitive to wider debates about the nature of legal authority, legal obligation, and social convention; they draw on contemporary developments in the philosophy of language at certain critical stages of the argument; and they address a range of other views in the existing literature as potential objections – including recent methodological challenges to legal positivism. Philosophy of Law can thus be read as providing a fairly panoramic and highly contemporary look at the place of exclusive legal positivism within the larger debates in analytic jurisprudence.
As such, the book clarifies some of the potential philosophical costs and benefits of the view, some of its main pressure points, and some of the central burdens one must bear to defend a satisfying, contemporary version it. This review examines Marmor’s main line of argument in Philosophy of Law, with a special eye to identifying the distinctive contributions that he makes to defenses of exclusive legal positivism. Marmor’s contributions to this topic are real, but – I argue – there are still outstanding questions as to whether one can accept the special benefits of his argumentative strategy without incurring too many countervailing philosophical costs. These questions – which I identify in this review – help to define some of the developments that would be needed to give Marmor’s contributions broader power and influence. They also help to clarify certain features of the current status and credibility of exclusive legal positivism within a broader range of debates in the contemporary philosophy of law.
Keywords: marmor, legal positivism, exclusive legal positivism, convention, interpretation, Dworkin, Raz, Shapiro, Coleman, Waluchow, fictionalism, games, jurisprudence, philosophy of law, nature of law, analytic jurisprudence
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