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

More documents

Recommendations

Info

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.
Theory Beneath the Surface 163 satisfactory theory of the function of the courts. If, as the Law Commission thought in this instance, it would be undesirable to leave the development of the subject to the courts, this may itself be because the courts are also too restrictive in their approach to law reform. And that in turn may be because they also lack a satisfactory theory of law reform. You may think the very idea of a theory of law reform is rather absurd. Who needs a theory to decide if the law is unsatisfactory and how best to reform it? Evidently what is needed is research into the facts, study of the existing law and its deficiencies, and then the formulation of proposals for reform. Evidently, indeed. But what is so evident about this? It is in truth a method of law reform based on an implicit theory; at least today perhaps the theory is implicit, but it was explicit enough in the hands of its inventor, Jeremy Bentham. It was Bentham who propounded this method of legal change, and you will notice how even this theory makes implicit use of another theory, namely the theory that what the law is must be fundamentally distinguished from what it ought to be. This crucial tenet of Bentham's own positivist theory of law underlay his theory of law reform. Bentham insisted that before the law can be reformed we have to distinguish very clearly what it currently is from what we think it should be. The first step is to find out what the law is. The second is to discover what is wrong with it. The third step is to decide how to put it right, and the fourth step is to change the law to give effect to what we have decided must be done. This change should be carried out by an exercise of sovereign power—by legislation, for Bentham, I need scarcely remind you, was a great believer in legislation by legislatures, and an emphatic opponent to all judicial legislation.
Page 1 and 2:
THE HAMLYN LECTURES Thirty-ninth se
Page 5 and 6:
THE HAMLYN LECTURES THIRTY-NINTH SE
Page 7 and 8:
PRAGMATISM AND THEORY IN ENGLISH LA
Page 9:
CONTENTS The Hamlyn Lectures The Ha
Page 12 and 13:
viii The Hamlyn Lectures 1962 Lawye
Page 15 and 16:
THE HAMLYN TRUST The Hamlyn Trust c
Page 17 and 18:
1. Pragmatism and Theory in English
Page 19 and 20:
Pragmatism and Theory in English La
Page 21 and 22:
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
2. The Strengths of the Pragmatic T
Page 61 and 62:
The Strengths of the Pragmatic Trad
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87 and 88:
Page 89 and 90:
Page 91 and 92:
Page 93 and 94:
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103:
Page 106 and 107:
90 The Weaknesses of the Pragmatic
Page 108 and 109:
Page 110 and 111:
Page 112 and 113:
Page 114 and 115:
Page 116 and 117:
Page 118 and 119:
Page 120 and 121:
Page 122 and 123:
Page 124 and 125:
Page 126 and 127:
Page 128 and 129: 112 The Weaknesses of the Pragmatic
Page 160 and 161: 144 Theory Beneath the Surface coul
Page 162 and 163: 146 Theory Beneath the Surface prag
Page 164 and 165: 148 Theory Beneath the Surface mati
Page 166 and 167: 150 Theory Beneath the Surface out
Page 168 and 169: 152 Theory Beneath the Surface trol
Page 170 and 171: 154 Theory Beneath the Surface ment
Page 172 and 173: 156 Theory Beneath the Surface inst
Page 174 and 175: 158 Theory Beneath the Surface prim
Page 176 and 177: 160 Theory Beneath the Surface The
Page 180 and 181: 164 Theory Beneath the Surface Now
Page 182 and 183: 166 Theory Beneath the Surface of p
Page 184 and 185: 168 Theory Beneath the Surface theo
Page 186 and 187: 170 Theory Beneath the Surface plea
Page 188 and 189: 172 Theory Beneath the Surface of t
Page 190 and 191: 174 Theory Beneath the Surface cour
Page 192 and 193: 176 Theory Beneath the Surface obst
Page 194 and 195: 178 Theory Beneath the Surface new
Page 196 and 197: 180 Theory Beneath the Surface long
Page 198 and 199: 182 Theory Beneath the Surface the
Page 200 and 201: 184 Theory Beneath the Surface alwa
Page 202 and 203: 186 Table of Cases D.P.P. v. Majews
Page 204 and 205: 188 Table of Cases Sidaway v. Bethl
Page 207 and 208: INDEX ACADEMIC LAWYERS, 5,132 comme
Page 209: Index 193 PARLIAMENTARY SOVEREIGNTY
show all

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

Create successful ePaper yourself

Delete template?

Save as template?