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

154 Theory Beneath the Surface
mental constitutional claim of Parliament to be able to pass
any law it chooses?
Now I am not saying that the traditional view of parliamentary
sovereignty cannot be supported with some kind of
rational argument, some theory about the role of judges, the
role of elections, the role of Parliament, the place of history,
the difficulties of any alternative to the present theory, and
so on. Nor am I predicting that if our judges ever had to
decide any of these momentous questions they would
openly discuss these theoretical issues. Given the pragmatic
traditions of the law, and the judicial aversion to explicit
theory, I strongly suspect that they would attempt to avoid
open discussion of these issues if they possibly could. All I
am insisting is that these questions cannot be rationally
decided at all without theory, and if the judges ever do pronounce
on them without open use of theory, it will be
because they have themselves a theory not only about the
constitutional issues themselves, but also about the appropriate
function of the judges, and the undesirability of their
becoming openly involved in discussion of theory.
Implicit Theories and the Judicial Function
It is apparent then that implicit theories play a very large
part in our legal system. The tendency to pragmatism itself
is in a sense based on implicit theory; the sovereignty of
Parliament is based on implicit theory. Let me now turn to
the role of the courts and suggest that a good deal here is
also taken for granted in the way of implicit theory.
We all know today that judges sometimes make law, not
indeed in the same way that the legislature makes law, not
usually with the same broad sweep,not always in response
to similar arguments, and certainly not without severe
restrictions on their capacity (for instance) to introduce