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

100 The Weaknesses of the Pragmatic Tradition
which embody those concepts. On the other hand there are
some strikingly purposive decisions like The Eurymedon 16 —
the case about the right of a stevedore to rely on immunities
in a bill of lading—in which the courts have stressed the
importance of moulding and modifying legal concepts like
offer, acceptance and consideration, to produce sensible
results in an everyday commercial context. But that was a
close run thing, a decision by bare majority of the Privy
Council, reversing the New Zealand Court of Appeal.
We must also note how, even in a well-reasoned opinion
like the judgment of Lord Wilberforce in that case, the
apparent conflict between the pragmatic and the logical is
rather assumed away, than confronted head on. Insofar as
the theory of the law of contract seemed to lead to a result
which Lord Wilberforce evidently found offensive to commercial
commonsense, it was the theory which came off
worst. Now I have absolutely no quarrel with the result in
this case, which seems to me to illustrate the pragmatic
strength of the law. It was the minority in that case who
were guilty of the "excess of logic" of which academics are
sometimes accused, insisting that the correct theoretical
analysis of the concepts of bilateral and unilateral contracts,
prevented the court from reaching a sensible result. The
traditional conceptual theory which seemed to stand in the
way of the decision was bad theory, and it was rightly not
allowed to prevent the sensible results being reached by the
majority. My only objection to the judgment of Lord Wilberforce
is that he made so little attempt to reconstruct the
conceptual theory of the law to justify his conclusions, and
at best only a half-hearted analysis was made of the theoretical
issues. The trouble with this rather disdainful
16 [1975] A.C. 154.