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

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98 The Weaknesses of the Pragmatic Tradition To some extent this attempt to find rationality in all judicial and other decisions suffers from much the same weakness as the attempt to find economic rationality on the part of judges. It assumes, in other words, what it seems to be seeking to find. Since we find it hard to believe that judges can be irrational, we search for ulterior motives and explanations for decisions which look at first sight pretty irrational, and if we make a general assumption of rationality we must of course always find some explanation which we can regard as rational. Since it is always possible to give such long term reasons for decisions which on their face seem absurd and irrational, we can easily come to the conclusion that there is no such thing as irrationality in the law at all. That is obviously too easy a cop out. Furthermore, one of the problems with this line of approach is that it is not difficult to find cases which are inconsistent with any formulation of long-term objectives such as may be made, for example, of the doctrine of precedent or of literal methods of statutory interpretation. So, for instance, it is possible to find cases in which judges have preferred to give effect to what they thought were the intentions of Parliament, even though the legislative text plainly said something different; while there arc other cases in which judges have insisted that this is an impermissible procedure. 13 Similarly, the doctrine of precedent is sometimes followed slavishly, and sometimes evaded by "distinguishing," or other similar procedures. These inconsistencies prevent us adopting the easy solution to our question of simply defining the judicial process so as to include an clement of rationality. What it comes down to is this: that there arc immediate purposes to be served by laws and decisions of this or that 11 Sec Bcnnion, op. cit. pp. 212 etseq. illustrating these inconsistencies.
The Weaknesses of the Pragmatic Tradition 99 character, and that there also possible long term purposes which can sometimes be served by opposing laws and decisions. Laws and decisions which are apparently irrational in the sense that they do not seem to be appropriate means of proceeding to agreed goals may sometimes be justified as rational on the ground that they serve these longer term goals, but we cannot just assume that they are always rational in this way. If then we cannot answer the question by mere definitional fiat, can we suggest any other answer? Is English law too often irrational in the simple sense that the law, or legal decisions, cannot be justified as serving any agreed upon goals? I think it is, though I can see that any answer to this question is likely to be largely impressionistic, and I am prepared at least to say that I think this reproach less justified today than it might have been twenty or fifty years ago. Perhaps it is not likely that a modern appeal judge would echo the words ofjessel M.R., in a case in 1877. Faced with an old rule of dubious justice, he said, "It is very dangerous for modern judges to endeavour to find modern reasons for these old rules," 14 presumably with the implication that rules should be applied blindly, regardless of their purpose. There are some relatively modern cases, for instance, Boots v. Pharmaceutical Society,' 5 —the case about offer and acceptance in self-service shops—which seem to me to illustrate a continued tendency to treat legal concepts as objective phenomena without regard to the purposes of the legal rules ' Ex p. Good, Re Armitage (1877) 5 Ch.D. 46. But the decision at first instance in Bell Houses Ltd. v. City Wall Properties Ltd. [1966] 1 Q.B. 207 did involve a highly mechanistic application of an old rule without any attempt to analyse its purposes. The decision was reversed but on a different point, [19661 2 Q.B. 56. 1 f 19531 1 Q.B. 401.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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2. The Strengths of the Pragmatic T
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152 Theory Beneath the Surface trol
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154 Theory Beneath the Surface ment
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158 Theory Beneath the Surface prim
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160 Theory Beneath the Surface The
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162 Theory Beneath the Surface the
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164 Theory Beneath the Surface Now
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166 Theory Beneath the Surface of p
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168 Theory Beneath the Surface theo
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170 Theory Beneath the Surface plea
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180 Theory Beneath the Surface long
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182 Theory Beneath the Surface the
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184 Theory Beneath the Surface alwa
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186 Table of Cases D.P.P. v. Majews
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188 Table of Cases Sidaway v. Bethl
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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