Gap Problem

Brian Z. Tamanaha

For a period in the 1960s and 1970s, the “gap problem” was “the central issue for studies about law” (Abel 1973: 189). There are two distinct angles on the gap problem, one focused exclusively on law, and the second comparing law with society. Within law, this refers to the gap or disparity between declared legal rules and the actual conduct of legal officials. What judges, prosecutors, police, and juries do when called upon to interpret, enforce, or apply legal rules is often different from what the laws literally require. As Roscoe Pound (1870–1964) pointed out in a 1910 article that first raised the issue, judges have departed from strict adherence to the stated legal rule when the outcome specified by the rule is contrary to their sense of justice or what they think should be the proper outcome. Judges apply a variety of means to accomplish this: they use legal ...

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