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

Pragmatism and Theory in English Law 7
mon law world, because to insist on following precedent
may seem to be to shut one's eyes to reasoned arguments. 13
Indeed, I have heard it said by a Professor of the Harvard
Law School (not himself a lawyer) that the reason why
there is no Nobel Prize for lawyers is that common lawyers
have no respect for original thought. The system of precedent,
urged this Professor, means that in a common law
court you can destroy your opponent's arguments by showing
that nobody has ever thought of them before. This is no
doubt an exaggeration, but he definitely has a point. The
principle and precedent contrast is not totally unconnected
to the distinction between legislation and case law. This is
often related also to the contrast between the abstract and
the concrete, the airy and the down-to-earth. It is also
closely involved in the whole contrast between law and
equity, between law according to rule, and doing justice in
the circumstances of the particular case. So too, there is the
contrast between the orderly, the systematic, the scientific
(if I dare use that word in connection with the law) and the
disorderly, the unscientific and the muddled. I shall call
this the principle and precedent contrast.
A fourth set of contrasts relates especially to the personnel
of the law, as I foreshadowed a moment ago, but follows
the general lines of the contrast between theory and pragmatism.
Here we have the distinction between the academic
and the practical, closely related to the distinction between
the academic and the practitioner. Tagging along with this,
we notice the contrast between book-learning and commonsense,
book-learning of course usually being academic and
commonsense usually being practical or sound or even
"sturdy." Somewhere here also we encounter the contrast
1 i
See the views of Bentham on this point, cited in lecture 3.