Stefano Bertea (Leicester Law School) has posted Critical Remarks on Andrei Marmor’s Theory of Legal Obligation (Australian Journal of Legal Philosophy, 42, 2017, 26-46) on SSRN. Here is the abstract:
In this essay, I critically engage with the theory of legal obligation defended by Andrei Marmor. My critical engagement with Marmor’s study of legal obligation will proceed as follows. After introducing the basics of Marmor’s view of legal obligation (Section 2), I will consider (what I regard as) a theoretically significant limitation inherent in the account. In that context (Section 3), I will notice that Marmor depicts legal obligation as an intra-institutional protected reason for action. By making use of a narrative, I will specifically argue that such conception fails to exhaustively elucidate and thoroughly describe which sorts of a reason for action are conceptually associated with, or at least typically constitutive of, the existence of the obligations issued in law. This conclusion should be considered of particular significance for the purpose of assessing Marmor’s overall programme for the study of legal obligation in consideration of the fact that for Marmor the obligations generated by the law are to be conceptualised as reasons for action of a specific kind. Despite Marmor’s emphasis on the notion of a reason as a fundamental determinant of the obligatory dimension of law, his theoretical construction can be shown to give us a merely partial account (of the nature) of the reasons defining legal obligation. This means that the picture emerging from Marmor conceptual analysis of legal obligation, whilst neither intrinsically mistaken nor fundamentally confused, can be regarded as incomplete and insufficiently detailed.