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061112_Law in Books and Law in Action the Problem of Legal Change

061112_Law in Books and Law in Action the Problem of Legal Change

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Citation: 64 Me. L. Rev. 45 2011Content downloaded/printed fromHeinOnline (http://heinonline.org)Wed Sep 12 19:34:20 2012-- Your use of this HeinOnline PDF indicates your acceptanceof HeinOnline's Terms and Conditions of the licenseagreement available at http://heinonline.org/HOL/License-- The search text of this PDF is generated fromuncorrected OCR text.-- To obtain permission to use this article beyond the scopeof your HeinOnline license, please use:https://www.copyright.com/ccc/basicSearch.do?&operation=go&searchType=0&lastSearch=simple&all=on&titleOrStdNo=0025-0651
 
LAW
IN
BOOKS
AND
LAW
IN
ACTION:
THE
PROBLEM
OF
LEGALCHANGE
Jean-Louis
Halpirin
I.
INTRODUCTION
II.
LAW
IN
BOOKS:
WHAT
ARE
LEGAL PHENOMENA?
A.
Normativism as
Ordinarily
Perceived
and
Its Limits
B.
The
Impasse ofRule-skepticism
and
Legal
Pluralism
C.
Focusing
on
Legal Discourse
and
the
Risk
ofLosing
Contact
with
Empirical
Facts
D.
Accepting the Gap
Between
Law
in
Society
and
Law
in
Books
III.
LAW
IN
ACTION:
THE
PROBLEM
OF
LEGAL CHANGE
A.
Identifying
Legal Change
B.
Measuring Legal Change
C.
Following
the
Circulation
ofLegal
Ideas
D.
UnderstandingLegal Change
HeinOnline -- 64 Me. L. Rev. 45 2011
 
MAINE
LAW
REVIEW
LAW
IN
BOOKS
AND
LAW
IN
ACTION:
THEPROBLEM
OF
LEGAL
CHANGE
Jean-Louis
Halpirin*
I.
INTRODUCTION
One
hundred
yearsago,Roscoe
Pound
wrotehis
famousarticle,
"Law
in
Books
and
Law
in
Action."'
Consideredanimportantstep
toward American
legalrealism,
2
today
thisarticle
is
invoked
more
for its
title
than
its
content.
I
wouldargue thatin
thearticle,Pound
didnot
clearlydistinguishbetween
two
separate
situations:
(1)
the
departure
of
decisions
of
courtsfrom
statements
of
statutory
(or
constitutional)
law,
and
(2)
the
discrepancy
betweendoctrine
in
books
andempirical
dataabout
law.
This
second
observation
has fed
various
strands
of
jurisprudence,
if
often
onlythrough
the
repetition
of
thewell-quoted
formula.,It
is
not
my
purpose
heretoaddressall
of
the
controversiesconcerning
the
relationshipbetween
legal
science
andfacts.
My
target,
more
modestly,
is
to identify
andanalyze
the connectionsbetween
Pound's
dichotomyand
the
European
legal
theories
that
are
influenced
by
the
ideas
of
Hans
Kelsen,
H.L.A.
Hart,and
Alf
Ross
about
law
andfacts.
My
point
of
departure
is
the
distrust
of
American
legal
theorists,who,
as
a
group,
considerthemselvesto
be"legal realists,"
4
of
Kelsen'snormativism,which
is
too
often
presented
by
them
as a
simplistic
and
outdated
theory
without
links
to
the
modern
practice
of
law.
5
American
legal
realism
andits
intellectualprogeny,
itcan
be
claimed,are
better
suitedtothe
empiricalstudy
of
complex
legalorders
that
comprise
more
thanthelawenacted
by
the state.
Although
I
wouldargue
that
Kelsenwas
both
"shocked"
and
inspiredto update
hisarguments
when
he
discovered
American
realismupon
arrivingin the
UnitedStates,
he
failedto convince
Americans
of
the
correctness
of
his
PureTheory
of
Law.
6
In
Europe,
however,
many
positivistsremainfaithfultothetheories
of
*
Professor
of
Law,
Centre de
Thborieet
Analysedu
Droit,
tcole
NormaleSup6rieure(Paris,
France).
The
author
addresses many
thanks
to
Professor
Martin
Rogoff
and
to
Professor
Charles
Norchi
for
their
help
in
presenting
a
textwritten
from
a
Europeanpoint
of
view
to
an American
Law
Review.
1.
Roscoe
Pound,
Law
in
Books
and
Law in
Action,
44
AM.
L. REv.
12
(1910).
2.
See
WILLIAM
W.
FISHER
III
ET.
AL,
AMERICAN
LEGAL
REALISM
3,
7
(1993).
3.
See,
e.g.,
Katherine
R.
Kruse,
The
Jurisprudential
urnin
Legal Ethics,
53
ARIZ.
L.
REV.
493,498
(2011);
Margaret
H.Lemos,
State
Enforcement
ofFederal
Law,
86
N.Y.U.
L.
REV.
698,
699
(2011).
4. See,
e.g.,
BrianZ. Tamanaha,
Understanding
Legal
Realism,
87
TEX.
L.
REV.
731,
734
(2009)
(reciting
the
familiarmotto
that
"[w]e are
all
realistsnow.").
5.
See
BRIANLEITER, NATURALIZING
JURISPRUDENCE:
ESSAYS
ON
AMERICAN
LEGAL
REALISM
ANDNATURALISM
IN
LEGAL
PHILOSOPHY
2
(2007);
JOHN
FINNIs,
Natural
Law:
The
ClassicalTradition,
in
THE
OXFORDHANDBOOK
OF
JURISPRUDENCE
AND
PHILOSOPHY
OF
LAW
1,
9
(Jules
Coleman
&
ScottShapiro
eds., 2002).
6.
For
an
early
explanation
of
his
puretheory
of
law
to
an
American audience,
see
Hans Kelsen,
The
Pure
Theory
of
Law
and
Analytical
Jurisprudence,
5
HARV.
L.
REV.
22 (1941).For
an American
reactionto
Kelsen's
pure
theory
of
law,
see
KARL
N.
LLEWELLYN,
JURISPRUDENCE:
REALISM
IN
THEORY
AND
PRACTICE
356
n.5
(1962)
(describing
Kelsen's
pure
theory
of
lawas
"utterly
sterile.").
Seealso
ROSCOE
POUND,SOCIAL
CONTROLTHROUGHLAW
126
(1942)
(describing
the
pure
theory
of
[Vol.
64:
1
6
HeinOnline -- 64 Me. L. Rev. 46 2011

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