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

96 The Weaknesses of the Pragmatic Tradition
gest that judges always search for such consensus assumptions,
and that they never pursue policies of their own, 10
though even then I very much doubt whether judges ever
consciously pursue individual idiosyncratic policies. If
judges do sometimes take starting points which seem controversial
to those who are not judges, I suspect it is because
the judiciary as a whole tends to regard those starting
points as non-controversial, which may well be a comment
on the nature of our judiciary.
I must now confront the question which I have been
approaching rather slowly. Does the pragmatic tradition of
English law and the English legal system mean that we are
hostile to rationality in the sense that we pay too little attention
to the purposes of the law and legal processes? I now
feel that this is a much more difficult question than I once
thought. The difficulty seems to me to stem from the fact
that, as I have already observed, the law serves so many
disparate goals, that many decisions which may seem at
first sight to be anti-rational- turn out on further examination
to be defensible on rational grounds, provided only we
are prepared to take a long view about some of the goals of
the law and legal decision making. Consider for instance the
problem of statutory interpretation, and the way in which
literal methods of interpretation can be and often are contrasted
with "purposive" interpretation. 11 Literal methods
of interpretation which defeat the probable parliamentary
intention and produce silly and even absurd results seem,
from one viewpoint, to be quite anti-rational. But this is
perhaps arguable: it is in truth irrational only if we assume
that the function of the judge is to give effect to the parlia-
10 See John Bell, Policy Arguments in Judicial Decisions (1983).
11 See, e.g. Bennion, Statutory Interpretation (1985), pp. 200-211 (on "grammatical
meaning") and pp. 657-674 (on "purposive construction").