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

Theory Beneath the Surface 157
can courts resolve an apparent clash of principles when, as
so often happens, one principle points in one direction and
an opposing principle points in another direction? These
are difficult, indeed profound, issues of theory, and nobody
expects the judges to turn their opinions into academic
excursions into pure theory, but surely we are entitled to
expect our judges to have some interest in what they think
they are doing when they decide new points of law. At present
it seems that judges just decide, almost from case to
case, whether they are going to rely on principle, or on
policy, on some mixture of the two. Are we not entitled to
have a better indication of how policy and principle intermesh
in complex cases, but how can this possibly be done
without a theory of the judicial function? 19
All this necessarily take us into some discussion of the
very division of labour between courts and legislature. Why
are certain issues reserved to the courts in our society and
others left to the legislature? What, indeed, is the function of
an ultimate appellate court? I do not doubt that English
lawyers would unhesitatingly say that it is the primary
function of the House of Lords to decide appeals, even in a
sense to correct the "errors" of the lower courts, 20 although
it also has a secondary function as a law-making body. But
who has decided that these are the primary and the secondary
functions respectively? It is not part of the necessary or
immutable order of things: it is, for instance quite clear that
the primary function of the Supreme Court of the United
States is not to decide disputes between litigants, but to
resolve conflicts of power, and certain major issues of social
policy. But in England it tends to be just assumed that the
19 See the excellent discussion by Weaver, "Is a general Theory of Ajudication
Possible?", (1985), 48 M.L.R. 613.
20 See generally Alan Paterson, The Law Lords (1982).