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

106 The Weaknesses of the Pragmatic Tradition
cases reasons are offered, more or less convincing reasons
according to taste, for the ultimate decisions, in one case to
exclude and in the other to include, the proffered implied
term, apart from the mere use of the formula that the
implied term was or was not necessary. But the continued
insistence that this is the exclusive test for reading terms
into a contract is surely misleading and unhelpful to lower
courts, as these two cases demonstrate. Given the number
of cases in which the judges have invoked Holmes to justify
their rejection of logic and theory, it seems appropriate to
cite a passage from him dealing with this same question of
implied terms:
"You can always imply a condition in a contract. But
why do you imply it? It is because of some belief as to
the practice of the community or of a class, or because
of some opinion as to policy, or in short, because of
some attitude of yours upon a matter not capable of
exact quantitative measurement, and therefore not
capable of founding exact logical conclusions." 26
I said a little earlier that the pure pragmatist is not only
generally rather hostile to matters of theory and rationality,
but that he is also disinclined to meddle with things that
seem to be working alright. Let me now say a few words
about this second inclination. At first sight nothing could
seem more obvious and sensible than to leave things alone if
they arc working well. But even this piece of pure pragmatism
isn't quite so straightforward as it seems, because until
we know what purposes we want to achieve we can't really
say whether something is working well or not. A rule or a
legal institution may appear to be working perfectly satis-
' M "The Path of the Law," 10 Harv. L. Rev. 457, at p. 466 (1897).