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

The Weaknesses of the Pragmatic Tradition 95
a culture and a sense of social cohesion. The kind of people
we are, the kinds of values we respect and the kind of law we
have and need depend to some degree on the very fact of
long historical continuity and tradition. But that raises different
and more complex issues which I shall not go into
now.
It is worth adding that the use of reason and rational
argument in these ways is something which not only the
pure pragmatist must face up to; it is also an answer to the
extreme political and radical view of law as a mere manifestation
of power. There are today sceptics who insist that law
is just an instrument of power, and that those who have
power simply choose the values which they wish to further.
Even judges, on this view, are simply furthering policies of
their own choosing when they make important decisions
about the law, and are not engaging in rational debate. 9
This is a complex question which I do not have time to
explore fully here, so I will content myself with a number of
bare assertions. First, rational argument for the purposes I
have suggested does presuppose some starting points in the
form of agreed goals. It is only when we know what our
goals are, that we can debate rationally as to the best means
of getting there. Secondly, it is, I think, clear and obvious
that agreement could never be secured today on any single
starting point unless it was so vacuous that it would be
pretty well useless for this purpose, for instance, that all law
must serve the welfare of the people. But thirdly, it is by no
means impossible to secure a wide measure of agreement on
some at least of the assumptions which judges and other
decision makers must use as starting points. I do not sug-
9 See Murphy and Rawlings, "After the Ancien Regime: The Writing of
Judgments in the House of Lords 1979/1980," (1981) 44 M.L.R. 621
and (1982) 45 M.L.R. 34.