Thinking and Arguing Law (Term Paper Sample)

Thinking and Arguing Law
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Thinking and Arguing Law
Thinking and arguing law may be done from two perspectives. Law can be studied from the black letter approach or the social legal approach. The black letter approach in only considerate of the legal provisions related to a case rather than moral or social implications. The approach is also referred to the traditional approach to law considering its consistency in providing legal standpoints based on established laws and constituted clauses. The social-legal approach, on the other hand, views a case from both the legal and moral standpoint. The approach provides interpretations based on social perceptions between right and wrong. In the developing world in regards to democracy, thinking and arguing and law have shifted from the traditional black letter approach to a social-legal perspective. This has made the process mandatory to consider the moral, justice and political implications of law.[Leonard, T. Encyclopaedia of the Developing World. (Routledge 2013).] [Ibid]
The Black Letter Approach
The approach is not at all subject to reasonable dispute. In an argument by Raz the traditional approach to law hindered the argument to law based on reasonable, moral and justice requirements. For this reason, consistency in law was ensured. The decision made by the approach were only based on existing statutes, acts, rules, laws and previous court provision on a similar case. The approach is supported by Travers who is of the assumption that law is constrained subject, and further explanation or clarification on existing statutes is not necessary when the basic and elementary outcome can be clearly established.[Raz, J. The Authority of Law: Essays on Law and Morality. (Oxford University Press 2009).] [Travers, M. Understanding Law and Society (Routledge 2009).]
The main advantage of the approach is that consistency in court proceedings is ensured. Cases are determined by already established legal provisions thus more accurate outcomes. In addition, the approach highlights the primary consideration that should be used in a court proceeding without hindering the relevance of the outcome. The approach also provides guideline for the setting up of legal cases by lawyers.[Heywood, A. Essentials of UK Politics. (Palgrave Macmillan 2011).]
The use of traditional law was attributed to the increase monarchy rules in past centuries. The approach did not provide room for changes that were necessary in the developing world. Democracy was also hindered by the approach as the voice of the society could not be admissible in the court.
The Social Legal Approach
This approach was one of the greatest advancements in the field of law. As mostly used today, the approach incorporates the study of other fields related to law thus creating the ability to include and cover social changes. For instance, the creation of copyright laws is a creation of the social legal approach to law. In an argument by Beattie the existence of law does not directly satisfy the objectivity of the field to interpret a cases based on varying situations. From this argument, one may assert that using fixed provision of the law as in the black letter approach hinder the effectiveness of the field to address cases in related fields. By the consideration of social, political and moral implications, law is able to act not in a restricted manner but in a way social changes such as modernization can be incorporated in the field.[Nobles, R. & Schiff, D. Observing Law Through Systems Theory. (Oxford University Press 2013).] [Beattie, A. Justice and Morality: Human Suffering, Natural Law and International Politics. (Ashgate Publishing Ltd. 2013).]
For instance in the case of Airedale NHS trust vs. Bland [1993] the social changes in regards to the issue of euthanasia was con...