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

Theory Beneath the Surface 153
continue to be the law today, is itself an argument which
requires some kind of theory to bolster it up. If we press on
to ask how it can be shown that this just is the law of the
constitution today, all we can be told is that the judges and
everyone else accept that it just is the law of the constitution.
Now in some contexts that may not be a bad answer,
though you will see that even this depends upon a theory,
namely the theory that the law of the constitution should
rest upon what the judges and everyone else accepts.
But in other contexts, this answer would not be helpful at
all. If the question is raised in some particular context
which has never arisen before, whether the traditional
theory is valid, it will hardly do to tell the judges that Parliament
must be sovereign because the judges have always
accepted that sovereignty. After all, why should not the
judges decide that the time has come to cease accepting that
Parliament must always be sovereign? 12 At any rate, the
argument will hardly do without some theory of the function
of the judges, and the doctrine of precedent. And if it is
insisted that parliamentary sovereignty rests upon its
general acceptance by the public at large, that too may raise
difficulties in certain imaginable contexts. Just suppose that
a government, elected one day with, let us say, the support
of 35% of those voting, passed a law which challenged some
fundamental rights of a large segment of the population—
say the right to send their children to private schools—and
let us assume that this law was defied by the public on a
large scale. How then would we know, how would the
judges know, whether the defiant section of the public were
merely objecting to the law itself, rather than to the funda-
12 As at least one of them has begun to hint they may do in New Zealand:
see Joseph and Walker, "A Theory of Constitutional Change," Ox. J.
Leg. St. (forthcoming),