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

146 Theory Beneath the Surface
pragmatic compromise. It was difficult to agree on which
offences should be punishable capitally, and which should
be less seriously treated, so the simple solution was arrived
at of making nearly all serious offences capital while
enabling the authorities to pardon those who seemed in
practice less guilty or for whom mitigating circumstances
existed. What was the point of this facade? One purpose
certainly seems to have been that of making the criminal
law appear to be more severe than it really was. 3 Given the
weakness of the police system and of the power available to
the forces of law and order in eighteenth century England, it
is understandable why the maximum deterrent value had to
be extracted from the criminal law. 4
But you will notice the implications of this approach. The
mitigating factors are not to be the subject of inquiry in the
courts themselves. The accused is not allowed to show that
there were special factors in his case, thejudges are spared the
burden of openly modifying the law, refining it, by introducing
mitigating concepts and the like. In this way thejudges do
not have to show how they can justify different decisions in
like cases. If one accused is reprieved while an equally innocent
accused is hanged, the latter has no real grievance on the
ground of unequal application of the law. Both actually
deserve to be hanged, according to the theory of the law; the
first has been lucky in receiving the hand of mercy, but
nobody can demand mercy as a right. Here one sees clearly
enough how pragmatism and elitism go hand in hand. We are
not far removed from the tyrant who wants to rule with-
' See Douglas Hay, "Albion's Fatal Tree," in Albion's Fatal Tree (ed. Hay
and others, 1975).
4 This is conceded even by J. H. Langbein, in "Albion's Fatal Flaws,"
(1983) 98 Past & Present 96 which is otherwise very critical of Hay's
essay.