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

Pragmatism and Theory in English Law 9
entirely deny that it can be quoted for a proposition
that may seem to follow logically from it ... [T]he
law is not always logical at all." 15
Rather surprisingly, even Lord Macmillan, whose views I
have referred to above, cited Holmes's famous remark in his
speech in Read v. Lyons 16 in 1947, and added for good
measure, "Your Lordships are not called upon to rationalize
the law of England." 17 Presumably Lord Macmillan was
here wearing his hat as a law lord hearing an English
appeal, and therefore loyally adopting the English
approach in preference to his native Scots. In that capacity
he might have quoted his own words from his lecture on
"Two Ways of Thinking" which.I have already referred to:
"[I]t is the tolerance, the magnanimity, the readiness
to compromise and to assimilate, the very illogicality, if
you will, that are so typical of the English mind which
have always been the secret of England's influence and
power." 18
Presumably if Read v. Lyons had been a Scots appeal Lord
Macmillan would not have embraced the irrationality of the
law quite so enthusiastically.
The present Regius Professor of Public Law at Edinburgh
seems to agree with Lord Macmillan:
"By and large, [he says] English lawyers and writers
have tended to think of it as almost a virtue to be illogical,
and have ascribed that virtue freely to their law;
15 Quinn v. Leatham [1901] A.C. 459, at p. 506. See the discussion in Cross,
Precedent in English Law 3rd ed. (1977), pp. 59-60.
'" [19471 A.C. 156.
17 At p. 175.
lg Op. cit. at p. 100.