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140 The Weaknesses of the Pragmatic Tradition and even unwelcome results, and the most severely practical man must be prepared to look at the results of such research with an open eye if he claims to be a rational being. Common sense is no substitute for real research. Much the same is true of observations of social phenomena, and indeed common sense here is apt to be even more dangerous because it is more difficult to refute error here by scientific demonstration. But consider how recently it used to be affirmed as a plain matter of common sense that women were inferior to men in understanding and intellect, and how it must therefore follow that a husband was entitled to the obedience of his wife in domestic matters. As this example illustrates, one of the most pervasive issues which arises in the law is whether one type of factual situation, (say) B, which resembles fact situation A and also fact situation C, to each of which the law has long attached clearly different legal results, ought to be treated like situation A or C. In performing this exercise, untutored com* mon sense is often an inadequate guide. After all, was this not what Coke was getting at when James I told his tiresome Chief Justice that he had as much reason, or sense, as anybody else, and that he therefore did not see why he should not dispense justice in his own courts? Cases at law, said Coke, are not to be decided by, "Natural Reason, but by the artificial reason and Judgment of Law, which Law is an Art which requires long Study and Experience, before that a Man can attain to the Cognizance of it." 68 One of the chief functions of legal training is to enable us to see that questions often have implications and ramifications beyond the immediate problem; we know, from the 68 Prohibitions del Roy (1608) 12 Co.Rep. 63.
The Weaknesses of the Pragmatic Tradition 141 experience of the law, which is the experience of centuries, that if (for instance) we make this move here, this may have rippling effects on that situation there, and we know that if we try to deal with that situation there in the same fashion, this will cause all sorts of problems of this or that character. Facts and circumstances which may appear similar at first sight, turn out, when examined in the light of combined legal experience, to have profound dissimilarities which may not be apparent to the man in the street. Consider, for instance, the reasoning which led Lord Abinger in Winterbottom v. Wright 69 to deny the plaintiff driver injured by a defective carriage, the right to sue the negligent manufacturer who had contracted with the owner: "[I]f the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring an action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would arise." 70 The interesting thing about this passage is that the result which Lord Abinger thought absurd and outrageous, and presumably therefore utterly contrary to common sense, is nowadays regarded as so obviously right and fair that Lord Abinger's dictum is itself often felt today to display a complete inconsistency with common sense. This is clearly wrong. The dictates of common sense have changed over the years, and it is important that lawyers should be aware that this can happen. So common sense is a useful attribute, 69 (1842) 10 M. &W. 109. 70 Ibid, at 114.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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2. The Strengths of the Pragmatic T
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The Strengths of the Pragmatic Trad
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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