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

The Weaknesses of the Pragmatic Tradition 137
the case. 60 Fortunately, the statistics in this instance had
the desired effect, but this has not always been the case. The
long history of penal reform in this country demonstrates, I
am sorry to say, a lamentable story of opposition by the
judiciary to almost every reform, on the ground that it
would weaken the deterrent effect of the law, even where it
could be shown that similar reforms in the past had not led
to any such weakening, for instance, because juries became
more willing to convict of minor offences after the abolition
of the death penalty. 61
Or again, consider a case like Street v. Mountford 62 in
which the House of Lords had to decide whether the Rent
Acts could be evaded by using a licence as a mere disguise
for a tenancy. The House of Lords held that they could not,
and Lord Templeman said that "the courts should be
astute to detect and frustrate sham devices and artificial
transactions whose only object [was] to disguise the grant of
a tenancy and to evade the Rent Act." 63 But nobody
attempted to produce any evidence to show the massive
extent to which the Rent Acts had in fact been evaded by
these means as a result of the Court of Appeal decision in
Somma v. Hazelhurst 64 which was in the result overruled in
Street v. Mountford. Yet I am informed that, certainly in London,
and I dare say in many other large cities, it was virtually
impossible to obtain a lease as opposed to a licence to
occupy ordinary residential premises during this period,
and that the most modest empirical research would have
60 See Zander, "Promoting Change in the Legal System," 42 M.L.R. 489,
at pp. 507-508.
61 See Gardiner and Curtis-Raleigh, "The Judicial Attitude to Penal
Reform," (1949) 65 L.Q.R. 196, 208.
62 [19851 A.C. 809.
63 At p. 825.
64 [19781 1 W.L.R. 1014.