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

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.