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

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172 Theory Beneath the Surface of the contract, conditions, warranties and the like; we think of the termination of contracts, by performance, frustration or breach; and we think of remedies. All this comes from Pollock and Anson, and today it is not only academics who think in these ways: the practitioners and the judges do so too, and so, indeed do the modern practitioners' books which finally abandoned the hopeless lack of shape and rational basis which they had obstinately hung onto long after the modern law had become firmly established. 40 Now although I have argued in my Rise and Fall of Freedom of Contract that the judges had been heavily influenced by the theories of political economy since the late eighteenth century, it is not at all easy to see how much of the law which Anson and Pollock put into canonical form was already implicit in the cases, and how much of it was actually their own devising, based on preconceptions about the rational shape of a system of contract law, drawn perhaps from Roman and civil law and perhaps even natural law sources. Certainly some of it was clearly drawn from their own ideas with virtually no support in the case law of the time. Pollock, for instance, virtually invented the doctrine—so far as English law is concerned—that an agreement is not a contract unless the parties intend to create legal relations, though he borrowed the idea from Savigny. 41 And Anson may well have been responsible for inventing the modern doctrine of privity, which he thought he saw in the cases, but which was really not there at all. 42 Beyond examples 40 See the Preface to the 22nd edition of Chitty on Contract, (1961) by J. H. C. Morris. 41 See Simpson, loc. tit. at pp. 264-265. 42 See my review of the centenary edition of Anson's Contract in (1981) 1 Legal Studies 100, at p. 102.
Theory Beneath the Surface 173 like this it is difficult to go, because we are today all so thoroughly saturated in the classical theory of contract that it is impossible any longer to read the nineteenth century cases without knowing how they slot into the structure built by Anson and Pollock. To put it at the lowest, it seems to me that these two academic giants are probably entitled to just as much of the credit for the creation of the general law of contract as all of the nineteenth century judges put together. The judges may have provided the bricks, but the design of the building was largely the work of the writers. Now some of us today, myself included, are worried that the structure of classical contract law which was created by Anson and Pollock and came eventually to be accepted by all, is itself in need of rethinking, because it has increasingly become a structure of a sort of ideal which nowadays rarely fits the reality. That is another story, and perhaps only bears witness to the strength of this academic-based theory. All I will say about that now is that once again, it seems to me, it is our theory which needs re-examination. Modern contract law probably works well enough in the great mass of circumstances, but its theory today is a mess. What is contractual liability based upon? We no longer believe in will theory, but most lawyers do seem still to believe in "the intention of the parties" as the basis of liability. However, the extreme objectiveness of contract rules in practice belies this apparent basis of liability. The truth is that there are a great many circumstances in which a person is made liable in contract even though he did not intent to assume the liability for what happened, or for the state of affairs existing at the time of the contract. Few contracting parties, even among businessmen, read through and understand the details of a lengthy printed contract; and if the contract is not in writing, many of its terms will be supplied by the
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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Pragmatism and Theory in English La
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2. The Strengths of the Pragmatic T
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90 The Weaknesses of the Pragmatic
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