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

128 The Weaknesses of the Pragmatic Tradition
principle can the actual decision be supported, or from
what principle can it be deduced?" 47 The opposing danger,
which seems to me much more worrying today, is that the
courts will hammer so strongly on the particular facts of the
case that in the end the search for principle underlying precedents
will be virtually abandoned. We all know how common
it is today for a case to be dismissed as applying only
"on its special facts," but, if taken literally, this is a meaningless
formula, and demonstrates the urgent need for radical
rethinking of the doctrine of precedent.
I would like to add another word about the proliferation
in modern times of discretions and guidelines in the law.
These are coming to be almost a new species of legal animal.
In civil law, discretions are now to be found all over
the place, often conferred expressly by statute, empowering
the judge to depart from the ordinary rules whenever it
seems just or expedient to do so. So, for instance, there are
discretions as to the grant of equitable relief, especially, perhaps,
interlocutory injunctions, discretions as to unreasonable
exemption clauses under the Unfair Contract Terms
Act, discretion under the Law Reform (Frustrated Contracts)
Act as to the awarding of a just sum for benefits conferred
under a frustrated contract, discretion to override the
normal limitation period in a personal injury action. In
modern times the House of Lords has repeatedly insisted 48
that the Court of Appeal must not substitute its own dis-
"Law and Scientific Method," in Ames, Cardozo et ai, Jurisprudence in
Action (1953), p. 121.
See, e.g. American Cyanamidv. Ethicon [1975] A.C. 396; Hadtnor Productions
Ltd. v. Hamilton [1983] 1 A.G. 191; George Mitchell (Chesterhall) Ltd. v.
Finney Lock Seeds [1983] 2 A.C. 803; Garden Cottage Foods v. Milk Marketing
Board [1984] A.C. 130.