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

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158 Theory Beneath the Surface primary function of the House of Lords is to decide disputes. It is simply taken for granted; it is one of those implicit theories which underlies the functioning of the courts. I do not say that this is an indefensible implicit theory, and indeed there is a lot to be said for it. But some people may wonder about the purpose of having two tiers of appeal courts, if the primary purpose of the highest court is just to correct the "errors" of the lower courts. In what sense can it be said that the decisions of the House of Lords are more "correct" than those of the Court of Appeal? Since most of us{pace Professor Dworkin) no longer believe that there is only one true answer to a disputed point of law, there is, on the face of it, no reason to suppose that a decision of the House of Lords is likely to be any better than that of the lower courts. So it is difficult to avoid the conclusion that the reason for having a second appeal court must be that the courts do possess legislative powers. It is that which makes it desirable in the public interest that important cases should only be decided after the sort of mature reflection which it is difficult to Secure in the lower courts, who are, of course, far more concerned with settling the particular dispute between the parties. Now this theory of the judicial function is to some extent recognised,' in that appeals to the House of Lords are more readily permitted where there is some public interest in the outcome, that is, where some important issue of law is at stake, but it is by no means impossible for a case to reach the Lords where there is no real public element involved at all—for instance where the case turns on the construction of a particular contract. Recognising more openly the implicit theory of the law would surely save the public a good deal of money if these cases were never permitted to get beyond the Court of Appeal.
Theory Beneath the Surface 159 More generally it seems to me that we still lack an adequate theory to help explain when the courts will be innovative, and when conservative; when they will overrule old decisions and survey a whole field from the ground up, and when they will insist that change and reform is for the legislature. If there is indeed implicit theory governing these matters, (and some would say there is none 21 ) then it does seem to lie buried pretty deep. It is true that we are not wholly without guidance on these questions. For instance, we have Lord Wilberforce's speech in Launchbury v. Morgans, 22 telling us that where there are three different possible ways of reforming the law it may be difficult for the courts to choose between them on a principled basis, and that perhaps the choice is best left to Parliament. But although this sort of attitude may be relevant in some cases, nobody would say that the courts must today call a halt to the development (say) of the law of promissory estoppel or the tort of negligence merely because there are more than two alternative avenues which lie ahead. So something further is clearly needed. Another point made by Lord Wilberforce in the same case was that any judicial reform of the law would have retrospective effect, and in the area of motor insurance this could raise formidable problems. Clearly, this is an important point, but in a sense it only leads to further questions of theory. Why should we continue to insist that judicial changes in the law must have retrospective effect? 21 See MacCormick, Legal Reasoning and Legal Theory (1978) p. 128; Paterson, The Law Lords chap. 7 disagrees (see esp. his n. 70), but his views are somewhat battered by the decision of the House of Lords in R. v. Shivpuri [1986] 2 All E.R. 334, overruling their earlier decision in Anderton v. Ryan [1985] 2 All E.R. 355 when it was less than a year old. In this last case a new set of criteria was used to justify overruling the previous decision. 22 [1973] A.C. 127.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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90 The Weaknesses of the Pragmatic
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