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

Pragmatism and Theory in English Law 11
commit it, it follows "as a matter of inexorable logic" 23 that
the prosecution must prove that the accused had the requisite
intent. So if he thought the victim was consenting, even
though she was not, it is immaterial that his mistake was
not one which a reasonable man would have made. Lord
Hailsham also added that he could not reconcile it with his
conscience to sanction as part of the law of England a logical
impossibility, and that even authority could not properly
lead to such a result, and should not be followed if it
seemed to do so. 24 But only a year later the House of Lords
resolutely refused to be swayed by this appeal to logic in the
very similar problem which arose in D.P.P. v. Majewski. 25
No matter that a person does not have the intent to commit
a crime, if the reason why he does not have that intent is
that he is so drunk as to have formed no intent at all, he will
be guilty, proclaims the Majewski ruling. Several members
of the House of Lords acknowledged that they were departing
from strict logic in reaching this decision, but as on so
many other occasions, they were not dismayed. The law
accords with "justice, ethics and commonsense" said Lord
Salmon, even if not with strict logic. 26
The aversion of English judges to "strict logic" seems to
be even greater than their aversion to ordinary logic. A cursory
look through the English case law for the last ten years,
which was made possible by the wonders of Lexis, has
23 [1976] A.C. 182 at p. 214.
24 [1976] A.C. 182 at p. 213.
25 [1977] A.C. 443.
26 [1977] A.C. 443 at p. 484. The decision was seen by many (including
perhaps most of the law lords themselves) as being not merely "antilogical"
but also "anti-academic" because so many academic criminal
lawyers had taken a different view of the legal issues involved in
Majewski. But not all academics took this view, see, e.g. Ashworth,
"Reason, Logic and Criminal Liability" (1975), 91 L.Q.R. 102.