In common law legal systems, black-letter law refers to well-established legal rules that are no longer subject to reasonable dispute. [1] Black-letter law can be contrasted with legal theory or unsettled legal issues.
The phrase derives from the historic blackletter script and typeface that originated in Europe during the Middle Ages. [2] It became particularly associated with English court documents in the 17th century. [3]
In the 15th-century case of T Pasch, Chief Justice Thomas Bryan described the principle that people cannot be prosecuted for their thoughts alone as "trite law," in the sense that this doctrine was well-established and obvious. [4] [5]
The phrase 'black-letter law' was, in the late 18th and early 19th centuries, used to critique textualists and promote purposive interpretations of evidence. [6] [7] [8]
In 1783, Hervey Redmond Morres, member of the Irish House of Lords, used the phrase during a debate about the legality of the Irish Volunteers militia. [7] He argued that "even if [the militia was] not authorised by... black letter law, they had an higher law for their foundation, self-preservation, that greatest and first of laws." [7] In a 1797 biography of Judge William Murray, English barrister John Holliday praised an instance of Murray applying "common sense against the black-letter-law." [8] That same year, Scottish writer George Chalmers published an essay on the Ireland Shakespeare forgeries that criticised historians who relied on the "black-letter law" of formal records while dismissing contextual evidence. [6]
In the United States, the term was first used in a legal context by the Supreme Court in 1831. [9] Justice William Johnson opined: "It is seldom that a case in our time savours so much of the black letter; but the course of decisions in New York renders it unavoidable." [10]
In modern usage, the phrase is used to refer to "well-established legal rules that are certain," and "no longer disputable" or "no longer subject to reasonable dispute." [1] [11]
In the United States, 'black-letter law' is synonymous with the phrases 'hornbook law' or 'settled law.' [12] [1] In Commonwealth jurisdictions, the phrase 'trite law' is used to refer to a legal principle that is obvious or well-established. [4] [13] [14] [15]
What is considered black-letter law is dependent upon region or jurisdiction. Examples of black-letter law in common law jurisdictions include the fundamentals of contracts, which must have an offer, acceptance, and consideration. [1] [16] [17] The first two elements are similarly required in most civil law jurisdictions; consideration, however, is not. [18] [19]
In federalist countries, what is considered to be black-letter law may also differ by administrative area. [20] In most of Canada, it is "trite law" that an employer is liable for wrongful dismissal when they fire an employee without sufficient notice. [20] However, this is not always the case in Alberta. [20]