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

4. Theory Beneath the Surface
My thesis so far can be summarised very briefly. I have
been arguing that the English legal tradition is highly pragmatic
in a variety of ways, that this pragmatic tradition has
considerable strengths but also serious weaknesses. Filling
in the headmaster's report, one might be tempted to say
simply, "Good practicals, but lacking in theory." But I now
want to suggest that things aren't quite as straightforward
as that. There is, of course, a great deal of theory in our law
and in our legal system. Some of it is obvious enough, but a
lot of it lies hidden beneath the surface. Let us see if we can
bring some of this up to the light of day.
Implicit Theory
The first point that must be made is to insist that there can
be no practice without theory, and that the pragmatist who
says theory just does not matter is himself acting on an
implicit theory of his own. Law may be in some respects a
highly practical subject, but it is quite impossible that it
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