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

120 The Weaknesses of the Pragmatic Tradition
reasons why that would not be a good thing. 36 The work of
academics and perhaps also law reform bodies suffers, by
contrast, from this lack of a devil's advocate. This is one
respect in which it often is helpful if rights emerge from
remedies, from litigation in particular cases. But I do feel
bound to say that it sometimes seems to me that the judgments
of the judges in important appellate cases would
themselves benefit from this kind of scrutiny by a paid
devil's advocate, such as can be provided (for example)
through the system of judges' clerks which exists in America.
I cannot help feeling that a young and able law graduate,
even straight out of university, could have saved an
enormous amount of trouble by pointing out (for instance)
the weaknesses in certain passages in the speeches in the
Suisse Atlantique case, 37 if those speeches had been subjected,
while still in draft, to the sort of scrutiny which is provided
by a good judge's clerk in America.
This therefore is a situation where the use of an adversary
type procedure could be suitably extended. But I now want
to point out that there are certain disadvantages to the
judicial development of the law which arise from the adversary
process. One such disadvantage immediately springs
to mind. An advocate who is employed to make as powerful
an argument as he can often tends to make the same point
in several different guises. He can never be sure which way
of putting the point is likely to impress the judge most, so he
plays safe by putting the point in three or four different
ways. But of course, if he did that openly, he would defeat
36 All important legislation drafted by Parliamentary Counsel is subjected
to this kind of minute hostile scrutiny even before it is introduced into
Parliament, because the draftsmen work in pairs, one who drafts, and
one who criticises.
37 [1967] 1 A.C. 361.