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

Theory Beneath the Surface 145
reasons, to theorise, is to invite accountability, to expose
oneself to criticism and refutation. This elitism has affinities
with the reactions of the exasperated parent who is faced
with endless questioning from his children who want to
know why they must do this, and are not to do that, and
who, in the end, cuts short the questioning with the positivist's
answer, "Because I say so." This answer may in some
contexts be justified (as every parent knows!), but it is only
justified because we take for granted that the parent is
indeed paternalist, and because the children are not of an
age to understand all the reasons for the parental rules. The
same answer given by various agents of authority to the
people in a democratic society is a good deal less acceptable,
1 although even here it may sometimes be justifiable to
the extent that doubts continue to exist about the capacity
of the public to react to laws in a completely rational way. 2
Let me illustrate this by referring to the way in which, at
various periods in our legal history, the law has relied heavily
on the prerogative power of pardon as a way of mitigating the
penalties of the criminal law. In eighteenth century England,
it is well enough known, the penal code appeared on
the surface to be bloody if not barbaric. Hundreds of capital
offences existed on the statute book and very large
numbers of people were tried and convicted of these
offences; but at the same time, we also know that large
numbers of these capital sentences were never carried out.
An elaborate system of reprieves and of obtaining such
reprieves existed, but it remained outside the legal system.
In a sense this was another example of good old English
1 See my "Judges and Policy," 15 Israel L. Rev. 346 (1980).
2 See my "The Legacy of Holmes Through English Eyes," 63 Boston Un.
L. Rev. 341, at pp. 380-382 (1983).