Law in Books and Law in Action: The Problem of Legal Change

One hundred years ago, Roscoe Pound wrote his famous article, “Law in Books and Law in Action.” Considered an important step toward American legal realism, today this article is invoked more for its title than its content. I would argue that in the article, Pound did not clearly distinguish between two separate situations: (1) the departure of decisions of courts from statements of statutory (or constitutional) law, and (2) the discrepancy between doctrine in books and empirical data about law. This second observation has fed various strands of jurisprudence, if often only through the repetition of the well-quoted formula. It is not my purpose here to address all of the controversies concerning the relationship between legal science and facts. My target, more modestly, is to identify and analyze the connections between Pound’s dichotomy and the European legal theories that are influenced by the ideas of Hans Kelsen, H.L.A. Hart, and Alf Ross about law and facts. My point of departure is the distrust of American legal theorists, who, as a group, consider themselves to be “legal realists,” of Kelsen’s normativism, which is too often presented by them as a simplistic and outdated theory without links to the modern practice of law. American legal realism and its intellectual progeny, it can be claimed, are better suited to the empirical study of complex legal orders that comprise more than the law enacted by the state. Although I would argue that Kelsen was both “shocked” and inspired to update his arguments when he discovered American realism upon arriving in the United States, he failed to convince Americans of the correctness of his Pure Theory of Law. In Europe, however, many positivists remain faithful to the theories of Kelsen and Hart. The conception of law as a set of norms and a “matter of social fact” is considered the core principle of legal positivism. As I will demonstrate, the problem raised by Pound in his 1910 paper is virtually identical to the one Kelsen tried to solve a few decades later: how to build a legal science without erecting a phantasmagoria of imagined law without connection to how law is actually used and actually works. Legal scholars continue to write law books and to describe legal orders, and they do so through making choices about what counts as law and is therefore worth presenting to readers. An analysis of these choices that legal scholars must make demonstrates the similarities between Kelsen’s arguments and Pound’s approach. To explore these similarities, I will focus on legal change; in particular, I will consider legal change in its historical context in order to give empirical content to the tension between black-letter law and rules “in action.” I will use legal history, in part, as a means of emphasizing the importance of the rule of change among Hart’s secondary rules, and I will argue that all legal phenomena are in constant evolution. If I am correct, then we can only bring law and facts into closer relation to the extent that we are able to understand why law is continually changing