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

The Weaknesses of the Pragmatic Tradition 135
sense, and I accept that in many circumstances this is a
source of pragmatic strength. I certainly have no desire to
argue that an excess of logical refinement, of the kind to
which some academics may be prone, is preferable to plain
common sense. On the other hand, common sense undoubtedly
has its limitations, and let me remind you of some of
them. Take first of all the common sense of physical experience.
We all have our physical senses to guide us in our
observation of the world, and most of us are pretty clear
about the things we see and feel and hear. English lawyers
would, I am confident, side very much with Dr. Johnson in
refuting Bishop Berkeley's scepticism of the reality of
material objects, by the simple process of taking a hearty
kick at a stone. But then we must remember how misleading
some common sense observations are liable to be. For
centuries, most people thought it a matter of plain common
sense that the sun went round the earth. Francis Bacon,
Lord Chancellor between 1618 and 1621, never doubted it,
even though he was very interested in scientific questions,
and indeed had pretensions to being a distinguished philosopher
of science. 56 Consider, too, how until very recent
times, lawyers were apt to assume that eye witness identification
was the most reliable kind of evidence in criminal
trials, and how difficult it is to convince people that they
have not actually perceived things that they had previously
had no doubt about. 57 Lawyers must also rely a great deal,
in the process of proof, on probability, but they are generally
extremely weak on probability theory, preferring to depend
56 Morris Cohen, "The Place of Logic in the Law," 29 Harv. L. Rev. 622,
at p. 628, n. 11 (1916).
57 See Report of the Devlin Committee on Evidence of Identification in
Criminal Cases (1976).