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

168 Theory Beneath the Surface
theory in England because it is already deeply embedded in
the legal system.
But there are other areas of the law where it does seems to
me that the influence of academic lawyers has been profound,
though usually unacknowledged. Let me illustrate
this by looking at the development of two of the most central
areas of the common law, the law of contract and the
law of tort. I have written at length elsewhere of the emergence
of modern contract doctrine during the last two centuries
or so, so I can deal with this briefly here. I have
argued—and there was nothing new in this—that the
judges of the period 1770 to 1870 were greatly influenced by
the theories of political economy, and in particular by the
ideology of laissezfaire. Much of this political economy was
itself of a very theoretical character, and took its origins, of
course, from the great work of Adam Smith, The Wealth of
Nations, and he, I need hardly add, was a professor at the
University of Glasgow. In addition, I suggested that some
of the most fundamental ideas underlying the law of contract
were only given expression in the writings of theorists
and philosophers. Take, for example, the idea that the law
of contract is principally designed for the protection of
reasonable expectations—what is today often assumed to be
the one key principle of the law of contract. This idea may
have been implicit in the decisions of the judges, but they
did not openly acknowledge it. It is, however, to be found in
the philosophical writings of David Hume 36 and Adam
Smith, 37 and it was recognised as of profound legal importance
by that greatest of all legal theorists, Jeremy Bentham.
He, in his usual fashion, belaboured the lawyers for failing
36 Treatise of Human Nature, Book II, Part II. Section I.
37 Lectures on Jurisprudence (ed. Meek, Raphael and Stein 1978), pp. 87-88.