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

Theory Beneath the Surface 155
institutional change. But still, judges decide what the law is,
and in the case of appellate judges this is a very important
part of their function. Now in modern times a huge amount
of academic attention has been paid to the nature of this
aspect of the judicial function. We have all sorts of theories
about what judges ought to be doing, and what they are
doing when they make new law. We have a substantial literature
about the kinds of arguments which are regarded as
appropriate for a court to use in justification of its decisions
and about the kinds of arguments which are clearly not
appropriate. But what about the judges themselves? How
do they view their function as lawmakers? How do they
view their role as against the legislature? What about legal
practitioners? What do they think about the kinds of arguments
which may appropriately be addressed to the courts?
These questions are difficult to answer satisfactorily,
because the issues of theory are not openly confronted by
the judges themselves. The judges tend to say little about
these issues in their judgments in court, and practitioners
themselves develop an instinct for the kinds of arguments
which may be used in court, and the kinds which may not.
Once again, in other words, the theory turns out to be
implicit in the way barristers and judges work, but it is
there for all that.
Consider the fundamental issue whether, and to what
extent, issues of policy can appropriately be addressed by
barristers and judges. Insofar as the law is unclear in any
particular case, and some development of the legal rules is
needed before a case can be decided, it seems to most academics
today to be almost beyond dispute that judges do
actually use arguments of policy. 13 They argue, for
13 See John Bell, Policy Arguments in Judicial Decisions (1983).