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

More documents

Recommendations

Info

92 The Weaknesses of the Pragmatic Tradition century has gone, probably for good. But on the other hand, it is also true that we no longer live in an age and a world in which it is customary to think of the law as the product of a Divine Creator whose mysterious purposes are unfathomable to human beings. So the law has lost something of its mystique and sacredness, and it is not possible in the long run to insist on obedience to laws which cannot be seen to serve some rational human purposes. If most of us still accept the duty to obey the law even when the law seems irrational and absurd and unjust, it is partly because we know that not too much of the law is like this, and that when it is as bad as this there is usually some reasonable prospect that it will get changed in due course. How could it be otherwise in a democracy? Surely only a superstitious or a servile people could be content to abide perpetually by rules, just because they are laws, and for no other reason, no matter how irrational or purposeless they might seem to be. I do not say that we can wholly do without some element of the mystique in the law. Indeed, I think we would be in deep trouble if we tried to do this, and it may be that we have already gone too far in the process of demystifying the law, stripping bare its lack of mystery and its too human origins. Everybody may have the vote, but it is not given to everybody to think rationally about the foundations of our reprinted in Ames, Cardozo et al., Jurisprudence in Action, 115 at p. 127: "Law without concepts or rational ideas, law that is not logical, is like pre-scientific medicine—a hodge-podge of sense and superstition ..." For a more modern view, see Leff, "Economic Analysis of Law: Some Realism About Nominalism," 60 Virg. L. Rev. 451, at p. 459: "There was nonsense in Beale, but, ah, there was a feeling of elegance and power too. It was lovely to be able to say things like, 'law ... is not a mere collection of arbitrary rules, but a body of scientific principles.' It was marvelous not to be embarrassed to say that 'Law ... in great part . . . consists of a homogeneous, scientific and all-embracing body of principle . . . ' "
The Weaknesses of the Pragmatic Tradition 93 laws and society, nor is everybody's opinion on these matters worth as much as everybody else's. But still, making all due allowance for the limitations of democracy, it is quite impossible today to forget that the people expect the law to serve certain rational ends even if it is sometimes difficult to secure agreement on what those ends should be. So our first answer to the pure pragmatist must be to insist that law is a purposive enterprise, that law is part of the business of government, and that reason and rationality are indispensable in the construction and use of law. Reason may not be able to tell us where we want to go, and why, but it can certainly help us to decide whether a particular measure will help us to achieve our aims. 3 Holmes himself, for all his rejection of logic, was one of the first jurists to recognise and state this clearly: "[I]t is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words." 4 And if to search for reasons is to play with theory, went on Holmes, "We have too little theory in the law rather than too much." 5 It was in this context that Holmes made his famous remark that, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV." 6 Historical explanations, in other words, may tell us how the law came to be what it is, but history is no reason for keeping the law thus. Perhaps, as Professor Lawson suggested in his Hamlyn lectures, 7 when the law was 3 See MacCormick, op. cit. chap. X. 4 "The Path of the Law," 10 Harv. L. Rev. at p. 469. 5 Ibid, at p. 476. 6 Ibid, at p. 469. 7 The Rational Strength ofEnglish Law (1951), p. 12.
Page 1 and 2:
THE HAMLYN LECTURES Thirty-ninth se
Page 5 and 6:
THE HAMLYN LECTURES THIRTY-NINTH SE
Page 7 and 8:
PRAGMATISM AND THEORY IN ENGLISH LA
Page 9:
CONTENTS The Hamlyn Lectures The Ha
Page 12 and 13:
viii The Hamlyn Lectures 1962 Lawye
Page 15 and 16:
THE HAMLYN TRUST The Hamlyn Trust c
Page 17 and 18:
1. Pragmatism and Theory in English
Page 19 and 20:
Pragmatism and Theory in English La
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58: Pragmatism and Theory in English La
Page 59 and 60: 2. The Strengths of the Pragmatic T
Page 61 and 62: The Strengths of the Pragmatic Trad
Page 103: The Strengths of the Pragmatic Trad
Page 106 and 107: 90 The Weaknesses of the Pragmatic
Page 158 and 159:
142 The Weaknesses of the Pragmatic
Page 160 and 161:
144 Theory Beneath the Surface coul
Page 162 and 163:
146 Theory Beneath the Surface prag
Page 164 and 165:
148 Theory Beneath the Surface mati
Page 166 and 167:
150 Theory Beneath the Surface out
Page 168 and 169:
152 Theory Beneath the Surface trol
Page 170 and 171:
154 Theory Beneath the Surface ment
Page 172 and 173:
156 Theory Beneath the Surface inst
Page 174 and 175:
158 Theory Beneath the Surface prim
Page 176 and 177:
160 Theory Beneath the Surface The
Page 178 and 179:
162 Theory Beneath the Surface the
Page 180 and 181:
164 Theory Beneath the Surface Now
Page 182 and 183:
166 Theory Beneath the Surface of p
Page 184 and 185:
168 Theory Beneath the Surface theo
Page 186 and 187:
170 Theory Beneath the Surface plea
Page 188 and 189:
172 Theory Beneath the Surface of t
Page 190 and 191:
174 Theory Beneath the Surface cour
Page 192 and 193:
176 Theory Beneath the Surface obst
Page 194 and 195:
178 Theory Beneath the Surface new
Page 196 and 197:
180 Theory Beneath the Surface long
Page 198 and 199:
182 Theory Beneath the Surface the
Page 200 and 201:
184 Theory Beneath the Surface alwa
Page 202 and 203:
186 Table of Cases D.P.P. v. Majews
Page 204 and 205:
188 Table of Cases Sidaway v. Bethl
Page 207 and 208:
INDEX ACADEMIC LAWYERS, 5,132 comme
Page 209:
Index 193 PARLIAMENTARY SOVEREIGNTY
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?