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

Pragmatism and Theory in English Law 19
primary material of the law: it was the command of the
sovereign which imposed duties, backed by sanctions.
When Holmes dipped rights into his cynical acid he found
that they disappeared altogether, but duties retained a
more solid sort of existence as a summary of the unpleasant
things that would happen to those who failed to perform
them. With the more modern versions of positivism we have
grown to appreciate that law can confer powers as well as
impose duties, and rights may be created by the law without
necessarily doing so via the imposition of duties, but
tranditionally I do not think there is much doubt that English
law has been in tune with the theories of the older positivists.
One striking example of the practical results of this tendency
of English law is to be found in the problems surrounding
the legality of many forms of industrial action in modern
labour law. It is, of course, well known that a strike—that is
to say a collective decision to withdraw labour—nearly
always involves activities in restraint of trade, breaches of
contract, and inducements to break contracts. The result is
that although the "right to strike" is regarded as in principle
acceptable in modern political and democratic
thought—though subject certainly to various restrictions
and conditions—the law finds great difficulty in recognising
this right. In law the "right" generally takes the form
merely of a series of immunities from actions which would
otherwise be illegal as being in restraint of trade, breaches
of contract, torts or crimes. The trouble—or anyhow one
trouble—with this approach is that every time the legislature
grants such an immunity it tends to do so by saying
that strike action shall not be unlawful "only on the
ground" that such and such has happened in the course of
it; but this, of course, does not stop a court from saying that