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

156 Theory Beneath the Surface
instance, that negligent parties should bear the consequences
of their negligence by being made liable, 14 but subject
to countervailing considerations, such as
the"floodgates" argument which I discussed in my second
lecture, 15 or to the desirability of adhering to international
arrangements limiting liability for negligence, as in shipping
cases. 16 They held, in the Majewski case which I also
referred to in my second lecture that drunkenness should
not be a defence to criminal conduct even where it negatives
the mens rea which is normally, as a matter of principle, the
basis of criminal liability, and it hardly seems open to doubt
that this was based on judicial views as to policy. They have
recently decided that a manufacturer does not have any
copyright in the design of the components built into his products,
mainly (it seems clear) because they disliked the
monopolistic power over the supply of spare parts which
any other decision would have given to manufacturers. 17
And so on. Yet Lord Scarman has argued that the courts
must decide unsettled points of law solely on the basis of
principle and not of policy, and other judges, on occasions
without number, have insisted that issues of policy are for
Parliament and not the courts. 18 What does this mean? Are
principles not themselves based on policy? Is the extension
of a principle something which can be justified in terms of
the principle itself, or does it need policy justification? How
14 Junior Books v. Veitchi [1983] 1 A.C. 520; Sai/Aliv. Mitchell [1980] A.C.
198.
15 CandlewoodNavigation v. Mitsui Lines [1986] A.C. 1; The Aliakman [1986] 2
A11E.R. 145.
16 TheEurymedon [1975] A.C. 154.
17 British Leylandv. Armstrong Patents [1986] 1 All E.R. 850.
18 McLoughlin v. O'Brian [1983] A.C. 410; see also Fumiss v. Damson [1984]
A.C. 474; Sidaway v. Bethlem Royal Hospital [1985] 1 All E.R. 643, at
p. 651.