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

136 The Weaknesses of the Pragmatic Tradition
on the very unreliable intuition and common sense of the
plain man. 58
Common sense is, I am afraid, sometimes a mere cover
for the person who does not choose to study the facts.
Because law often deals with facts which are not sufficiently
well known, and which need research to bring them to light,
it is relatively easy for lawyers to rely on broad intuitive
judgments of common sense, but these intuitive judgments
are often faulty, and there can be no excuse for the lawyers
who actually oppose the research needed to discover the
truth. There is, it seems to me, a real anti-scientific and
anti-empirical tendency in English law which constantly
needs to be guarded against. Remarkably enough, this sort
of anti-empiricism is often to be found even in connection
with the very working of the legal system itself. Practitioners
and judges often seem astonishingly ignorant of the
way in which the law is actually working. For instance, Dr.
Ashworth has pointed out that the guidelines given by the
Court of Appeal as to sentences which may be appropriate
to everyday offences like burglary or housebreaking reveal a
total failure to understand what goes on in magistrates'
courts, because the guidelines require sentences of such
severity to be passed that they actually exceed the powers of
magistrates' courts. 59 Similarly, only twenty years ago it
was being complacently assumed by the judges that all
those charged with serious offences were able to get legal
aid, and it required academic research to bring to light the
statistics from which it could be seen that this was just not
58 See Eggleston, Evidence, Proof and Probability (2nd ed., 1933) Chaps. 2,
and 10-12.
59 Ashworth, Sentencing and Penal Policy (1983), p. 41.