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

The Weaknesses of the Pragmatic Tradition 123
fact, include a sum by way of compensation for pain and
suffering, and this sum is in a sense fixed "at large," that is
without specific quantified losses being proved. Furthermore,
it is clear since Cassell & Co. Ltd. v. Broome* 2 that
aggravated, as opposed to exemplary damages, are
designed to compensate for the plaintiffs loss and not to
punish the defendant for his misconduct, so it is difficult to
understand what damages could be recovered as aggravated
damages which cannot already be recovered as
general damages. In truth it seems to me quite clear that
aggravated damages would only mean the plaintiff recovering
twice over for the same injuries, simply conceptualised
in different language. As I have said, the claim failed in this
case, but we are by no means free from the danger that the
increased itemisation of damages will lead to over recovery
through this unnecessary duplication of legal conceptions
and categories. This kind of thing is, I believe, largely due
to the way in which our case law develops through the
adversary processes of the law, in the pragmatic step by
step manner, and sometimes without adequate overall
examination of the rational basis of what is being done.
In addition to cases of this kind, there are, I believe, a
great many other areas of our law in which adherence to the
doctrine of precedent leads to the very reverse of "an economy
of juristic concepts," so that the inter-relation between
two characteristics of the pragmatic approach redoubles the
less desirable features of each. When a doctrine of the law
has hardened and ossified over the years both our judges
and our legislature often prefer to outflank it by developing
new doctrines and techniques rather than openly modifying
[19721 A.C. 1027.