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The black-letter approach to the study of law is unrealistic

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on 8 May 2015

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Transcript of The black-letter approach to the study of law is unrealistic

1. Introduction
Black Letter and it's features
The advantages of Black Letter

What is the Black-Letter approach?
Black Letter and the Law in Action
Where they disagree
'The black-letter approach to the study of law is unrealistic because it is out of touch with the realities of the law in action and divorced from the concerns of the practicing lawyer'
Critically discuss.

Research methodology which provides a detailed and highly technical commentary upon the content of legal doctrine
Takes it's name from the tendency to concentrate exclusively on the ‘letter of the law’
Priority is to gather, organise and describe legal rules and offer commentary upon them mainly with cases
What are the features of Black Letter
Offers precise view on how the law operates
Precludes hypothetical views
Typically gives a standpoint of a lawyer advising his client as to the legal implication of their clients situation
By emulating the interpretative techniques it suggests the view of a lawyer
By excluding factors that fall outside the remit of strict legal analysis, Black Letter develops a strictly objective legal approach to a clearly defined and limited range of primary sources
Black Letter and the Law in Action
What is the Law in Action?
Within modern society the law in action represents a form of administrative governance and device for exercising political power
Court proceedings and all it's aspects
Legislative procedures
The view that law is an independent, objective and coherent system of state-sanctioned rules hardly captures the complexity of law in action
Black-letter analysis is out of touch with the realitiy of legal practice which has been dominated more by procedural issues than sophisticated disputes over the precise meaning and scope of points of law.

Black Letter ignores the role played by acts of subjective interpretation in the creation,articulation and application of rules, and also in their practical implementation and justification
Black Letter and the Law in Action
Concerns of a practicing lawyer
Practicing lawyer thinks past the holdings of the law
Philipp Frey
Research Methods
2. Black letter and the law in action
Is the Black Letter Approach still useful?
The Black Letter Approach omits a lot questions about the law such as it's practical relevance, origin, context, values embodied and interests served
This does not mean Black Letter is irrelevant?
Law of contracts
Law of Tort
Alternative Approach
Socio-Legal approach
Includes both qualitative and quantitative research methods, to look at the impact of the law in action and the role played by public policy
Aim is to gain empirical knowledge and an understanding of how the law and legal proceedings impact on the parties involved
Socioa-Legal approach often fills a gap in the understanding of 'law in action' found in black letter methodology perspective.
Alternative Approach
Problems with Socio-Legal approach
One immediate problem of this approach lies in providing a single and conclusive definition of the nature and scope of the study
Possibility of ethical issues
3. Alternative Approach
The Socio-Legal approach
4. Conclusion
Black Letter Approach is not wrong, only insufficient
detached from reality
gives passive rather than critical understanding of law
but necessary
Full transcript