ABSTRACT
This chapter discusses the historical origins of the focus on the ‘law in action’ which has its roots in the work of Roscoe Pound, and contrasts it with the idea of the ‘living law’ put forward by Eugene Ehrlich. It re-examines the way in which Pound’s and Ehrlich’s distinctions fit into the larger framework of their views. Pound’s preoccupation with ‘law in books’ and ‘law in action’ can be seen as an attempt to resolve the tension inherent in his definition. As soon as Ehrlich formulated his definition of law, he was immediately attacked by Kelsen on the grounds that he confused normative and descriptive analysis. The chapter outlines that why Ehrlich’s work can be seen as a relevant contribution to research, theory and policy-making in the sociology of law. Ehrlich’s ideas provide a better starting point for empirical research than a focus on the ‘law in action’, because the idea of ‘living law’ is less isolated from sociological theory.
