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

18 Pragmatism and Theory in English Law
that the underlying justification for many of our cases, the
classifications and concepts we use, the rationalisations
which lawyers give—and they do give them, even when
they disclaim the job of rationalising the law—are often
unsatisfying and inadequate. Even when the practical and
pragmatic approaches adopted by English lawyers lead to
perfectly acceptable results, the explanations which lawyers
give for those results often fail to satisfy. If I may quote
Holmes again, and this time in a mood less hostile to
theory, after he had read the whole of the 181 page report in
Allen v. Flood* 3 his comment to Pollock was that the case
betrayed a "lack of articulate theory and fundamental
analysis." 44 I will, however, now leave my comments on
logic and experience because to develop my criticisms at
this point would trespass on the critique I want to offer later
of this weakness in English law.
Rights and Remedies
I turn now to say something about my second heading,
namely the rights-remedies distinction. Let me take this in
two stages. The first is that English law has, I think, been
more prone to start with duties, and to treat rights as the
incidental flow-on from duties, rather than to start with
rights and impose duties to protect those rights. Certainly
this was the consequence of the positive theory of law from
the days of Bentham and Austin. And here too we see the
leaning towards the practical and the pragmatic, because
duties are things that can be enforced by sanctions, by
physical force. That indeed was precisely why the traditional
English positivists thought that duties were the
43 [18981 A.C. 1-
44 Pollock-Holmes Letters, (ed. Howe, 1941), vol. 1, p. 200.