On the Wrong Track: Andrei Marmor on Legal Positivism, Interpretation, and Easy Cases

The paper deals critically with Andrei Marmor’s influential book Interpretation and Legal Theory, from the standpoint of a Continental analytical jurist. It argues for the following points: (1) Marmor’s own understanding of “legal positivism” is different from the understanding defended, e.g., by Herbert Hart and Norberto Bobbio, and apparently misleads him into the wrong track of a theoretical inversion; (2) Marmor’s two-stages model of (legal) interpretation —the understanding-interpretion model — provides no support for Marmor’s own positivistic theory of law; (3) Marmor’s concept of interpretation is at odds both with the basic tenets of Hartian and Continental methodological legal positivism, on the one hand, and with the actual practice of legal interpretation in the Western world, on the other hand; (4) Marmor’s concept of an easy case is likewise objectionable. Marmor’s positions are contrasted with more suitable ones, contextually argued for.