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

Pragmatism and Theory in English Law 13
grounds, in favour of the Entores 32 ruling that a telexed
acceptance is only effective on receipt, principally because
this rule seem to have worked without serious difficulty or
complaint. So if "logic" is occasionally alright, it seems that
"strict logic" is beyond the pale. 33
So where does all this leave us? Well, we must first recognise—as
has often been pointed out before—that when English
lawyers and judges reject the use of logic in the law,
they are usually, perhaps always, using the word "logic" in
a somewhat imprecise and perhaps incorrect sense. What
they usually have in mind is the syllogism, the principle of
deductive logic, whereby given a major and a minor premise,
a valid conclusion can be drawn. In the Morgan case it is
clear that Lord Hailsham's unwillingness to sanction a
departure from logic was based on a more correct use of the
term "logic." Given, he insists, that the prohibited act in
rape is non-consensual intercourse, and given secondly,
that the guilty state of mind is an intention to commit it,
then it would, as he says, follow inexorably that an honest
though unreasonable mistake negatives the necessary intention
and should lead to an acquittal. All that this comes
down to in the end is that if the law requires that an intention
of a certain kind must be shown before a person can be
convicted of a particular type of offence, then indeed, that
intention must be shown to exist. It would be a remarkably
perverse judge who denied that this conclusion followed
from the premises, and it would be a still more remarkable
judge perhaps, who accepted the premises but directed the
jury to convict the accused.
32 [1955] 2Q.B. 327.
33 For another example, see the House of Lords decision in the important
patent case, Beecham Group Ltd., v. Bristol Laboratories Ltd. [1978] R.P.C.
153, esp. at p. 204 per Lord Simon.