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

The Weaknesses of the Pragmatic Tradition 113
that Dicey had particularly in mind the writ of habeas corpus
as a more effective preserver of individual liberty than
the grandiloquent assurances of the rights of man which
have so often been found in many foreign constitutions. Of
course, it goes without saying that it is of the utmost importance
that rights be effectively enforceable by practical remedies;
rights without remedies may be meaningless words.
But it is equally true that remedies without an adequate
theoretical understanding of what they are for, what purposes
they serve, what rights and duties they are designed
to uphold, are unlikely to serve as a satisfactory basis for the
law. This might seem so obvious that it hardly needs illustrating,
but I am afraid it is sometimes obscured by the
extreme pragmatism of English law. A case occurred some
years ago, one of those minor cases that never made the
headlines or even the Law Reports, which suggests to me
that even with the writ of habeas corpus it is sometimes
desirable to think about the rights which remedies are
designed to serve.
As I have said, the case made no headlines, nor was it
reported, and I rely on my memory of contemporaneous
newspaper accounts for what happened. The case involved
a person who had been taken to a police station and
detained there for some days while he was being questioned
by the police. But he had not been charged with any
offence, nor brought before a magistrate. Under the law as
it stood before the Police and Criminal Evidence Act 1984
this was almost certainly illegal, so a writ of habeas corpus
was applied for on behalf of this anonymous detainee. The
matter came before the Lord Chief Justice, Lord Widgcry,
at which time the situation continued unchanged. The
applicant was still uncharged, and was still detained, but
the Lord Chief Justice was told that it was expected that