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

126 The Weaknesses of the Pragmatic Tradition
on precedent rather than on principle. And I hope it is clear
by now that I do not refer here only to precedent in the narrow
sense which the word bears in our system of law, but
also to a more general tendency to decide cases ad hoc, to try
to settle disputes by wholly pragmatic means, without
regard to the principles of law and the broader purposes
which those principles must have. In this sense, indeed, my
complaint is that the abandonment of principle often leads
also to an abandonment of precedent in the narrower sense.
Discretionary decisions, for example, decisions in all the circumstances
of the case, decisions under apparent legal principles,
but principles so malleable that they can be made to
yield up any solution at all, all these are illustrations of the
broad tendency to pursue precedent as opposed to principle,
in the sense which I am now giving these terms.
I have discussed on two earlier occasions, some of the
main anxieties which I have with regard to the current
trends in English law in these respects, so I can deal with
this heading briefly today, simply restating very shortly
some of the points I have developed elsewhere, and adding
a very few further thoughts. 45 First, then, I have suggested
before that the trend in modern English law has been
increasingly toward the pragmatic in this particular sense,
towards deciding cases according to all the circumstances,
in an attempt to do justice in the particular circumstances
of the case. I have warned that this trend seems to me to
neglect the broader deterrent or hortatory purposes of the
law, and it is of course an old theme that this tendency
makes the law less certain and predictable.
45 See my From Principles to Pragmatism (Oxford, 1978) and my Chorley lecture,
"Common Law and Statute Law," (1985) 48 M.L.R. 1.