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

138 The Weaknesses of the Pragmatic Tradition
revealed the extent to which the Rent Acts had been
evaded. Of course, the House of Lords went through the
usual motions of saying that if the Acts had been successfully
evaded that was a matter for Parliament and not the
courts, but if it had been demonstrated by empirical evidence
that the effect of Somma v. Hazelhurst had been virtually
to repeal the Rent Acts in practice in a very large area
of the country, this would surely have been a relevant consideration
for the House of Lords to bear in mind.
Let me now give a more worrying example of this antiresearch,
anti-academic tradition in English law. One of the
great problems about trying to understand the English sentencing
system, and therefore in trying to see how it can be
improved, is that we know so little about what persuades
sentencers to pass one sort of sentence rather than another
in a particular case. There is no systematic evidence "on
which one can base any assertion about the degree to which
the principles of sentencing laid down by the Court of
Appeal or principles and opinions derived from personal or
local sources predominate in sentencing practice." 65 A few
years ago a serious research project was planned by a group
of Oxford-based academics in which it was intended to ask
sentencers how they reacted to certain kinds of offences, and
what they thought of certain sorts of sentences. This perfectly
serious project was stopped by the ukase of the
present Lord Chief Justice who decided, on behalf of the
judiciary, that all co-operation with the project should be
refused. 66
This anti-research, anti-academic predilection of some
members of the higher judiciary cannot be condemned too
K ' Ashworth, Sentencing and Penal Policy (1983), p. 54.
fi6 Ibid. Preface, p. xix.