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

118 The Weaknesses of the Pragmatic Tradition
great importance to us all. 34 I do not, however, think that
these results can all be laid at Dicey's door. Dicey himself, I
believe, assumed in the way so typical of the comfortable
English lawyer of his time and class, that Englishmen were
so thoroughly imbued with the need to maintain their fundamental
rights, that when these issues arose in ordinary
litigation, the rights in question would be accorded due
weight. I doubt if he ever entertained the thought that these
rights could be accorded so little weight in ordinary litigation
that they could sometimes be sunk almost without
trace.
There is another problem with the Diceyan legacy, this
time in the field of statute law. In modern times, of course,
many important rights, some of which can certainly be
characterised as fundamental rights, are conferred by legislation.
Now there is, of course, no way in which these rights
can be seen as arising in the course of ordinary litigation,
but what I want to draw attention to here is not merely the
point that these rights are specifically conferred by statutes
but that our tradition of statutory drafting in this area
suffers once again from the unwillingness of our legislature
to confer rights by way of fundamental principle. Too often
the pragmatic approach leaves us with a legislative hotchpotch,
ill-suited to the development of an atmosphere in
which fundamental rights can be developed or protected by
the judiciary in a spirit appropriate to the importance of the
issues. Let me quote here the words of Mr. Lester commenting
on our legislation protecting equality of treatment without
unfair discrimination:
"[B]ecause British legislation is characteristically
specific, pragmatic, and piecemeal, there is no coher-
34 See Barendt, "Dicey and Civil Liberties," f 1985] Public Law 596.