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

The Weaknesses of the Pragmatic Tradition 121
the object of the exercise because the judge would see that
only one point was being made. So the advocate is tempted
to make the one point look as though it is really several
points. And unfortunately the judge may be taken in by
this. So our law becomes more complex than is necessary, in
contrast, as I understand with the civil law where (at least
according to Jhering) 38 one of the elegant features of their
systems is "the economy of juristic concepts."
Let me illustrate this point, with a couple of tort cases.
Take first the well-known case of Baker v. Hopkins? 9 one of
those tragic rescue cases in which Dr. Baker went to the aid
of two men who had gone down a well filled with poisonous
gases, and was himself killed as a result of being overcome
by the gases. In an action against the employer of the men,
brought by Dr. Baker's widow, it was held that the defendants
were clearly negligent in planning the work with
almost complete disregard of the dangers, but four separate
defences were argued: (1) that the defendants owed no duty
of care to Dr. Baker; (2) that Dr. Baker's death was caused
by his own voluntary actions and not by the defendant's
negligence; (3) that Dr. Baker knowingly accepted the risks,
and was therefore defeated by the maxim, volenti non Jit
injuria; and (4) that he was guilty of contributory negligence.
Now each of these defences was argued and dealt
with separately by the Court of Appeal judges, and there
are three fairly full judgments in consequence. But try as I
can, I simply cannot see how more than one question really
arose from these facts once the negligence of the defendants
was proved. It seems to me perfectly obvious that if an intelligent
layman were asked his opinion of these facts he would
M Cited by Lawson, A Common Lawyer Looks at the Civil LMW, p. 67.
39 [19591 1 W.L.R. 566.