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

162 Theory Beneath the Surface
the law relating to breach of confidence, 32 and the Government
has already promised legislation to implement it.
Much of this Report contains a good deal of sense, but the
weakest part of it is the section which explains why it is
necessary to legislate at all. Of course the law is uncertain in
some areas, and of course leaving it to the courts will mean
the the law will develop "piecemeal," 33 but this is an almost
completely new area of law, which has so far been quite successfully
built up by the courts on a case by case basis. Now
unless we have already decided that judicial legislation is
undesirable in principle, this seems exactly the sort of area
which is best left to development by the courts. It deals with
private law rights, not the criminal law; it relies almost
entirely on the sort of concepts that the courts have been
working with for centuries, such as express and implied
undertakings, good faith, trust, and property; and it uses
the good old common law and equitable remedies of
damages and the injunction. To cast this law into legislative
form at such an early stage of its development—even if the
legislation clears up one or two problems before they
arise—is positively to invite rigidity and premature ossification,
as indeed the Senate of the Inns of Court and the Bar
both suggested to the Law Commission. And surely we now
have enough experience of legislative law reform to appreciate
that legislation usually creates as many new problems
as it solves. It is true that the Law Commission did ask itself
how best the law should be developed in the future, whether
by legislation or the courts, and to some extent I am simply
disagreeing with their judgment. But what concerns me is
that questions of this kind, posed in the context of a particular
proposal, cannot be easily answered in the absence of a
a
Law Com. No. 110, Cmnd. 8388 (1981).
" See para. 6.1 of the Report.