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

The Weaknesses of the Pragmatic Tradition 131
tract Terms Act with the provisions of the American
Uniform Commercial Code, Article 2-302. The United
Kingdom Act contains 32 sections and four Schedules. The
32 sections contain, if my arithmetic is right, 91 sub-sections.
Article 2-302 of the U.C.C. contains two sub-sections.
Yet it is clear that Article 2-302 is more extensive and
more principled in its operation since it strikes at unconscionable
contracts and terms, leaving it to the courts
entirely to decide what this means. It is true that Article 2 of
the U.C.C. nominally only applies to contracts of sale of
goods, but American courts have widely applied the section
by analogy to other contracts (as indeed the Commentary
to the Code specifically invites them to do) 54 and many
American courts are prepared to hold unconscionable contracts
void at common law anyhow. Thus this article simply
legitimates use of a broad principle of law, leaving the
courts to implement the principle in their usual case by case
procedure. The United Kingdom Act, on the other hand,
contains no real principle; despite its title it does not apply
to all unfair contract terms, nor does it apply a uniform
principle to such terms. Perhaps it is easier to predict how a
court will decide a specific case, using the United Kingdom
statute than the U.C.C, but in the long run, is it not evident
that we have been indulging in legislative casuistry,
the kind of "ad hockery" which restricts the development of
the law along broad and rational principles?
The Practical and the Academic
I come then to my fourth heading, and here it is my task to
try to persuade you that the pragmatic tradition suffers
54 See Comment to Art. 1-102 of the U.C.C. and cases cited in White and
Summers, Uniform Commercial Code (2nd ed., (1980)), p. 18.