Pragmatism and Theory in English Law - College of Social Sciences ...

The Strengths of the Pragmatic Tradition 85
of Appeal had first placed upon it. 73 Lord Kilbrandon
declared that though he appreciated "the intellectual force
of the appellant's argument," he declined to hold that Parliament
had "decreed a trifling and illusory remedy for a
known disgraceful mischief, and to hold it in the interest of
the conceptual purity of the law." 74 I would only add that it
must not be supposed that it is always academic lawyers
who want to uphold the "conceptual purity" of the law, as
is shown by the number of judges who took the opposing
view in this particular case.
Indeed, my next example of the triumph of the law's
pragmatic strengths over undue subtlety and intellectual
refinement actually shows the view of my academic colleagues,
if not the "academic" view, to have been vindicated.
I refer to the way in which the House of Lords broke
the fetters by which it had been previously shackled, and
declared in 1966 that it was no longer going to be absolutely
bound by its own decisions. Now it had previously been a
matter of some debate whether the House of Lords could do
this. Professor Glanville Williams, for instance, had argued
that as the rules of precedent were made by the courts, they
could also be unmade by them, and that the decision by the
House of Lords in the London Street Tramways case 75 that it
was absolutely bound by its own decisions could not bind
the House not to change its mind.' 6 But this view was vigorously
controverted by Mr R. E. Megarry as he then was,
who contended (in a discussion about the Court of Appeal)
73 Davis v.Johnson [1979] A.C. 264.
74 At p. 339.
75 [1898] A.C. 735.
76 (1954) 70 L.Q.R. 469. See also the penetrating discussion by A. W. B.
Simpson in Oxford Essays in Jurisprudence, (ed. Guest 1961), pp. 155-163.