Here’s a story for you. It goes like this:
The law professor addressed the class of law school graduates: “Three years ago, if you were asked, ‘What is the law?’ on a particular subject, you could only answer, ‘I don’t know.’ Now, after three years of legal education you can answer with great confidence, ‘It depends!'”
I like this story, because it points to something I’ve thought about during my time in the Law Library. I’ve had time to look at the shelves and shelves of Law books, I’ve had to figure out what different books are, what’s in them, and how they’re used. I’ve spent time trying to answer 1L legal research questions and helping public users find legal material that might apply to their particular situation. Over time, the immediate question of “Where is the law on _____?” became for me a more general and philosophical question of “Where is the law…?”
When we think of the law, we think of books. That’s how we envision the law… laws are in books, especially old leather-bound books. Lawyers almost always have shelves of books in their offices, often behind their desk so that when you talk to them you are also looking at their books. It doesn’t matter if the books are outdated and useless or if they are irrelevant to the attorney’s practice. The display of books is important to give the air of authority and knowledge. After all, “THE LAW” is in the books…….. right?
I guess the philosophical question of “Where is the law?” came to me mainly from helping public patrons who come in the library. Almost always, they will come in and ask “Where is the law on ____?” Almost immediately, they will begin going into great detail on their particular situation and will finish with ” …… so I need to find the law on that!” It began to dawn on me after the uniformity of these occurrences that the image of “the law is in the books” is so strong that people (including a lot of students and attorneys) believe that every possible situation has an applicable law that exists in a book somewhere. All you have to do is find the right book.
That brings me to my favorite Law book, which is by no means a slick new publication. It is “An Introduction to the Principles and Morals of Legislation” by Jeremy Bentham (published 1780).
Bentham is an interesting character for a lot of reasons, but this book is particularly interesting to me because it attempts to answer that question of “Where is the law?” If it were true that “THE LAW is in the books”, there would have to be a law written down to cover every possible human interaction. That’s exactly what Bentham tried to do… draft a set of universal laws that would cover every possible human interaction anywhere at any time. And he said from the start that he knew it would be a failure, but he went ahead anyway just to see what such a thing might involve and look like. Yes, it is a failure, but it’s such an ambitious and elegant failure that it’s beautiful.
Bentham ultimately proved that the Law is not in books no matter how much you codify and legislate. You can’t address everything. So….. where is the Law? If it’s not really in the books, is it in the people involved in the practice and the legal system? Not entirely! Some people make the dichotomy between “law in Books” and “law in action”, but that split doesn’t reflect the reality either.
Part of the Law IS in the books. Part of the Law IS in the action of the participants. Despite our very solid and traditional concept that the Law is a THING that can be stated and written down, law is a dynamic process in which the written law serves as a guideline and historical record which is used to interpret and argue an appropriate action for a current situation and a decision is rendered on what to do, and that decision goes back into the books to be interpreted in a future situation, etc. “Law in books” and “Law in action” flow into each other back and forth to make up the larger process we could call “THE LAW.”
Well, that should give you enough to chew on for the weekend. Just remember, the next time you go looking for “the law on ____” in a book, that you and what you do and think are also “the law on ____.”