Black-Letter Law.

• Author: Wright, Leela

Studying the law, exactly as it is written, is one approach to understanding it. However, this approach creates as least as many issues as it clarifies. It requires us to ask the question: how do words, removed from their factual, historical, and socio-legal context, become a body of rules that affects our lives on a daily basis?

This question is a hotly debated topic within the legal profession. On one hand, taking the law exactly as it is written, also known as a "black-letter" approach to law, provides clarity and consistency within our society. On the other hand, the black-letter study of law also encourages rigidity and forces a black-and-white approach upon situations in which there is an expansive grey area. This article will consider both the benefits and the drawbacks of a black-letter approach to law in order to examine its value in an age of increasing diversity.

What is Black-Letter Law?

Black-letter law refers to the concept that rules are generally well-known and free from doubt or dispute. Black-letter law is related to the more colloquial term, "letter-of-the-law," which refers to a court taking a literal approach to reading the law. However, the "spirit-of-the-law" is the opposite approach. It refers to a broader reading of the law in light of policy and contextual considerations.

Black-letter law condenses the vast body of case law found within common law societies into reusable rules. Typically, these rules can be applied to any set of relevant facts to form a consistent outcome. For example, black-letter law may include the standard elements of a contract (offer, acceptance, and performance) or the technical definition of murder (the unlawful killing of a human being with malice). Legal disciplines that tend to most rely on black-letter law include contract, tort, and property law.

A Brief History of Black-Letter Law

The concept of black-letter law arose from the practice of setting law books and writing legal precedent in Gothic black-letter type. This was a tradition that survived the switch to Roman and italic text for all other printed works. English law retained the bold, black Gothic font because it had come to symbolize the law of England itself. It was not until the mid-nineteenth century that the legal profession began to use Roman letters. This was not merely a change in fashion, but rather an attempt to improve access to the law for the average person.

Pros to the Black-Letter Approach to Law

Although there...