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I am looking for a term to denote "real" law, as distinct from "theoretical law". An alternate formulation is to say that I am looking for a term to be a legal equivalent/version of "realpolitik".

For example, if a law was "on the books", but not enforced it would not be "real law". Alternatively, if an action was technically a civil infraction that a company could sue over, but the cost (both monetary and publicity) of doing so would outweigh the benefits of doing so, there would be a risk of being sued under the Law, but not "real law".

closed as unclear what you're asking by Hot Licks, NVZ, Phil Sweet, GoldenGremlin, tchrist Jun 26 '16 at 18:33

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  • @Catija If I understand what you mean, no. I mean law as it practiced rather than as it is written. Hopefully my edit has made this clearer (and thank you for helping improve my question). – sharur Jun 23 '16 at 18:57
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    I'm not sure why a law not being worth suing over due to cost makes it less of a law... I would bet that a lot of those laws get used as part of a larger suit even if not acted on alone. Ignoring them would be a bad idea. – Catija Jun 23 '16 at 19:03
  • If it were used as part of larger suit, it would not qualify for this designation. For instance, noncommercial fan fiction is a clear copyright infringement, as the law is written. Many authors/publishers actively ignore it, e.g. one responded to a question about it by saying (paraphrasing) "Don't ask me about fan fiction, because I don't know about it. If I knew about it I'd have to sue." Essentially, giving a "wink and a nod", as it were. Thus, a vast amount of fan fiction is in reality allowed, even if it is technically illegal. This is what I am trying to find a term to describe. – sharur Jun 23 '16 at 19:31
  • Except your question is about the laws that are acted upon... not the ones that are not... so your comments make your question even more confusing. Are you trying to find a term for the laws that are ignored or the ones that are acted upon? I also don't have the legal background to dispute what you're saying but my understanding is that some fan fiction is covered under fair use... perhaps this question would be a better fit for Law? – Catija Jun 23 '16 at 19:36
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    Don't post this question on Law or any other Stack Exchange community unless it gets closed here.  And, if that happens, you might want to flag the question and ask a moderator to migrate it for you. – Scott Jun 26 '16 at 5:13
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The closest term I can think of is "the letter of the law" (whatever is written literally in law) versus "the spirit of the law" (the intent of what laws actually want people to do).

There is also a term "de facto" which might apply here, because it can be used to mean "the way it actually plays out in reality."

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Perhaps by distinguishing between de facto and dejure, you can get a better handle on the difference between “real law” and “theoretical law.”

A de facto government, for example, can do virtually everything a legitimate and constitutionally established government can do. The biggest difference between the two is that the former exists in actuality or reality, just not yet according to a duly sanctioned constitution which spells out in detail the philosophy of how the government will run and the laws by which it will govern.

When that constitution is officially sanctioned and becomes the “law of the land,” the de facto government becomes a dejure government, meaning simply according to law, by right, and legal.

Under South Africa’s dejure policy of segregation, three categories of citizens (viz., colored, Indian, and Black) did not enjoy all the rights and responsibilities of full citizenship that the fourth category (viz., whites) could enjoy by simply being born white.

In the American South, in the years following the Civil War and up to the mid-1960s, Jim Crow laws at the state and local levels enforced dejure racial segregation according to the philosophy of “separate but equal.” Blacks and whites in those days were surely separate by virtue of segregation in public schools, public places, public transportation, restroom facilities, restaurants, and even at public drinking fountains, but they were far from equal! “Jim Crow” institutionalized a number of economic, educational, and social disadvantages for Blacks.

In the North, however, racial segregation and inequality were primarily de facto phenomena, and the patterns of segregation in such areas as housing and employment were enforced not by federal, state, or local governments, but by private covenants, bank-lending practices, and discriminatory labor union practices.

Not until the U.S. Supreme Court case Brown v. Board of Education in 1954, the Civil Rights Act of 1964, and the Voting Rights Act of 1965, did Blacks nationwide begin to enjoy the full rights and responsibilities of citizenship.

In conclusion, a law, to be a law, does not necessarily have to be codified to wield the power of law. By the same token, a codified law does not necessarily have any wielding power if a critical mass of citizens are not willing to enforce it or be governed by it! Both "real laws" and "theoretical laws" provide a people with standards of sanctioned behavior. Whether they choose to live by those standards is an entirely different matter!

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