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

94 The Weaknesses of the Pragmatic Tradition
first thus laid down it was rational in serving the ends of the
law as they were then perceived to be, but it cannot be
rational today merely because it was rational in the past. But
then how can we reconcile this distinction between historical
explanation and forward-looking purposiveness with our
doctrine of precedent? Respect for precedent seems to blur
this distinction, but there is really quite a simple explanation
of this apparent paradox. There are, of course, different
types of reason for making decisions, just as there are many
different types of goals which the legal system is designed to
serve. Following precedent serves a different kind of goal
from those which may be served by specific rules of law; and
where the precedent in question seems unsatisfactory or
seems to serve no sensible goal in itself, it may seem perverse
to suggest that following the precedent can still somehow be
seen as rationally serving goals of the law. Bentham indeed
was convinced that to follow precedent was to act "without
reason, to the declared exclusion of reason and thereby in
opposition to reason." 8 But Bentham was wrong. Clearly
there are many good reasons for following a precedent
irrespective of whether the decision was itself a good
rational decision when made, such as the desire to act consistently,
the desire to make the law more certain and predictable,
the desire to economise on judicial decision
making and so on. All these are perfectly rational grounds
for having a system of precedent, though I am not of course
saying anything about the weight of these reasons, nor
about the extent to which it is best to serve these goals rather
than other, more substantive goals, involved in the merits of
the issue itself. In any event, I think it clear that Holmes
underestimated the value of sheer tradition in maintaining
8 Constitutional Code (collected works of Jeremy Bentham) (ed. F. Rosenn
and J. H. Burns, 1983), vol. 1, p. 434.