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

Theory Beneath the Surface 171
ency to abstraction and generalisation, the cases themselves
were inevitably always about specific types of contracts.
The second innovation for which Anson and Pollock were
principally responsible, at any rate so far as English law is
concerned, was to give the law a new kind of shape and
structure. Instead of looking at contract law from the point
of view a barrister who comes on the scene only after a contract
has been made, and when litigation is already contemplated,
Anson and Pollock tried to look at the law from a
more rational perspective. They wanted to ask new sorts of
questions, which had rarely troubled the practitioner, such
as, What is a contract? How do you make a contract? How
does a contract get discharged? And so on. As Professor
Simpson puts it:
"[Until Anson and Pollock] there existed no literary
tradition of expounding the law of contract in a form
which invites the reader to proceed to the solution of
problems by applying general principles of substantive
law, principles under which the messy business of life is
subsumed under ideal aseptic types of transaction, the
types themselves being analysed and their legal consequences
presented in a systematic form." 39
When we think today of the general shape of contract
law, we all think in pretty similar sorts of terms. We think of
how contracts are made—offer and acceptance, the doctrine
of consideration, the intent to create legal relations and so
on; we think of vitiating factors like mistake, misrepresentation
and fraud and undue influence; we think of the terms
1 "Innovation in Nineteenth Century Contract Law," (1975) 91 L.Q.R.
247, p. 251.