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

144 Theory Beneath the Surface
could exist at all without theory. Law is a purposeful enterprise.
We live by law in modern societies for reasons, because
we have intelligible and discoverable human goals. The
whole concept of the rule of law requires not just that we
have rules, and that government is bound by rules, but also
that these rules should be based on purposes and reasons
which are open to public debate. The opposite of government
by rule is government by whim, but rules which have
no rational basis are no better than whims. Only a completely
despotic ruler, whose mere word is law, could get
away without giving some reasons for his orders, and how
can he give reasons without some sort of theory? And even
the most complete despot will soon find he needs law in
order to rule more effectively since it is hardly practicable to
govern a state by simply handing out ad hoc orders. The
most pragmatic of practical men, who insists that he has no
use for theory is, even unknown to himself, using implicit
theory in the very process of insisting that he has no need
for theory. What is more, the theory that he is implicitly
relying on is not a very attractive theory, for it is a close
cousin to the theory of the complete despot who just wants
to give orders and has no theory at all. In fact it looks very
like an elitist theory in which those who wield power do not
want to justify or explain too carefully what they are doing
or why they are doing it.
It seems to me, indeed, that the pragmatic traditions of
English law have close connections with a sort of elitism
which surfaces from time to time in our legal system. The
pure pragmatist who spurns all theory and all rationality is
behaving rather like the man who says, "Don't confuse me
with the facts, my mind is made up." He is asking us to
trust him, he is seeking to avoid having to explain his
reasons, what he is doing and why. To explain, to give