Black letter law
Encyclopedia
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, which are generally known and free from doubt or dispute. It may, for example, be the standard elements for a contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
or the technical definition of battery
Battery (tort)
At common law, battery is the tort of intentionally and voluntarily bringing about an unconsented harmful or offensive contact with a person or to something closely associated with them . Unlike assault, battery involves an actual contact...
.
The term "black-letter law" is also used commonly in the American legal system to mean well-established case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
.
At least in English law, black letter law is a term used to describe those areas of law characterized by technical rules, rather than those areas of law characterized by having a more conceptual basis. Contract, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
and land law
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
are typical black letter law subjects, whereas administrative law
Administrative law
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law...
, for example, would be considered considerably less black letter.
History and etymology
The phrase does not come from association with Black's Law DictionaryBlack's Law Dictionary
Black's Law Dictionary is the most widely used law dictionary in the United States. It was founded by Henry Campbell Black. It is the reference of choice for definitions in legal briefs and court opinions and has been cited as a secondary legal authority in many U.S...
, which was first published in 1891. The phrase "black-letter law" was used in the Pennsylvania Supreme Court case Naglee v. Ingersoll, 7 Pa. 185 (1847), almost 50 years before the first publication of Black's. There is also a U.S. Supreme Court case that predates the dictionary, Jackson ex dem Bradford v. Huntington, that uses the phrase "black letter" in the same sense as black letter law: "It is seldom that a case in our time savors so much of the black letter, but the course of decisions in New York renders it unavailable . . ."
Instead, it presumably refers to the practice of setting law books and citing legal precedents in blackletter
Blackletter
Blackletter, also known as Gothic script, Gothic minuscule, or Textura, was a script used throughout Western Europe from approximately 1150 to well into the 17th century. It continued to be used for the German language until the 20th century. Fraktur is a notable script of this type, and sometimes...
type, a tradition that survived long after the switch to roman and italic text for other printed works.
The phrase definitely refers to a distillation of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
into general and accepted legal principles. You can see this in the quote above from the Supreme Court where the Court is noting that while the black letter law is clear, New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
precedent deviates from the general principles.
In common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, black letter legal doctrine is an informal term indicating the basic principles of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
generally accepted by the court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s and/or embodied in the statutes of a particular jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
. Letter of the law is its actual implementation, thereby demonstrating that black letter law are those statutes, rules, acts
ACTS
Acts or ACTS may refer to:Christianity* Acts of the Apostles , a genre of early Christian literature* Acts of the Apostles, the fifth book in the Bible's New Testament...
, laws, provisions, etc. that are or have been written down, codified, or indicated somewhere in legal texts throughout history of specific state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
law. This is often the case for many precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s that have been set in the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. An example of such a state within the common law jurisdiction, and using the black letter legal doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
is Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. Being a monarchical state, with its roots invested in Colonial England, black letter law is that which is a term used to describe basic principles of law that are accepted by the majority of judges in most provinces and territories. Sometimes this is referred to as "hornbook law" meaning treatise
Treatise
A treatise is a formal and systematic written discourse on some subject, generally longer and treating it in greater depth than an essay, and more concerned with investigating or exposing the principles of the subject.-Noteworthy treatises:...
or textbook, often relied upon as authoritative, competent, and generally accepted in the field of Canadian law. In lawyer lingo
Legal English
Legal English is the style of English used by lawyers and other legal professionals in the course of their work. It has particular relevance when applied to legal writing and the drafting of written material, including:...
, hornbook law or black letter law is a fundamental and well-accepted legal principle that does not require any further explanation, since a hornbook is a primer of basics. Law is the rule which establish that a principle
Principle
A principle is a law or rule that has to be, or usually is to be followed, or can be desirably followed, or is an inevitable consequence of something, such as the laws observed in nature or the way that a system is constructed...
, provision
Provision
Provision may refer to:* Provision , an industrial dance / synthpop band from Houston, Texas, USA* Provision , a term for liability in accounting* Provision , a term for a procurement condition...
, references, inference
Inference
Inference is the act or process of deriving logical conclusions from premises known or assumed to be true. The conclusion drawn is also called an idiomatic. The laws of valid inference are studied in the field of logic.Human inference Inference is the act or process of deriving logical conclusions...
, observation
Observation
Observation is either an activity of a living being, such as a human, consisting of receiving knowledge of the outside world through the senses, or the recording of data using scientific instruments. The term may also refer to any data collected during this activity...
, etc. may not require further explanation or clarification when the very nature of them shows that they are basic and elementary.
Similar phrases
The phrase is nearly synonymous with the phrase "hornbook law". There are a number of venerable legal sources that distill the common law on various subjects known as Restatement of the LawRestatement of the Law
In American jurisprudence, the Restatements of the Law are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law...
. The specific titles will be "The Restatement (First) of Contracts" or "The Restatement of Agency" etc. Each of these volumes is divided into sections that begin with a text in boldface that summarizes a basic rule on an aspect of the law of contracts, agency etc. This "restatement" is followed by commentary and examples that expand on the principle stated.