Albert T. (陳信宏) (University of Groningen, Faculty of Law) has posted Law in Books, Law in Action, Law Through Systems on SSRN. Here is the abstract:
Roscoe Pound’s distinction between law in books and law in action remains a warning against confusing legal formulation with legal operation. Yet in many institutions the decisive choices occur before an official encounters the individual case. An intake form determines what can be said; a routing rule determines who will see it; a reporting architecture determines what an organisation is capable of disclosing. Such arrangements belong within Pound’s law in action, but they warrant separate scrutiny because they preserve earlier judgments and reproduce them across later cases. This essay calls that scrutiny reading law through systems. The expression denotes neither a source of law nor a version of systems theory. It is a method for tracing how a legal requirement is translated into an operating environment, and for testing whether the resulting choices remain visible, reviewable and revisable. Sustainability reporting under the Singapore Exchange Mainboard Rules and recommender-system duties under the European Union’s Digital Services Act illustrate two different relations between law and infrastructure. In one setting, infrastructure enables compliance; in the other, it is itself regulated. Both show why the final report or decision may reveal too little. A lawyer must sometimes examine the system that prepared it.
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum