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

164 Theory Beneath the Surface
Now reform of the law does not have to be conducted in
this way. Imagine a country which does not accept the
positivist theory of law, which rejects the notion that a clear
line can and constantly must be drawn between law as it is
and law as it ought to be. Assume that the courts of that
country change the law a great deal more than they do here,
so much indeed, that it is often very difficult to say what the
law is, because you never know whether it is going to
change in the very process of being applied or decided. In
this way law reform might become a continuous, incremental
process, almost indistinguishable from deciding actual
cases according to the existing law. Obviously the courts of
such a country would have to have a different theory of law,
a different theory of the relationship of the courts to the
legislature, and indeed a different theory as to whole nature
of the judicial function. I am inclined to think that this is
indeed the case in the United States. Now I am not suggesting
that we should necessarily want to borrow some of the
American theories that I have just identified; but what I do
suggest is that it would be a good thing if English lawyers
realised that that the traditional English way is not the only
way of doing things, and that if we think it is the best way,
or the way that suits us best, that is because we do hold certain
implicit theories about many of these issues. These
implicit theories may be none the worse for being dragged
out into the daylight and exposed to the possibility of discussion
and criticism. But they should not remain buried
for ever in darkness.
In any event, I am far from convinced that if these implicit
theories were brought out into the daylight they would
survive permanent scrutiny. Indeed, bringing these theoretical
issues out into the open might make us appreciate
that there are many possible alternative ways of proceeding,