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

20 Pragmatism and Theory in English Law
the activity remains unlawful on some other ground. 45
Exactly the same thing happens with such activities as picketing.
Again, within proper limits, picketing is generally felt
to be a political and industrial right, but English law has
great difficulty in understanding the nature of that right.
Ever since the Trade Disputes Act 1906 the legislation on
this subject has included a provision cast in right-conferring
form—"It shall be lawful" to do thus and thus, but even
these provisions have all been interpreted in the negative
form, that is to say, as provisions which pronounce that
picketing is not to be unlawful on the ground only that there
has been some infringement of this or that legal rule. 46 Of
course this means that it is always open to prosecutors and
courts to find that the right to picket does not exist in some
particular case because there has been some infringement of
some other law or provision which nobody had previously
thought of in that context. Now I want to make it quite
clear that I am taking absolutely no stand on how far the
law should restrain, or permit strikes and picketing. I am
not even taking any stand on the question whether English
law ought to shift over to what is said to be the more continental
structure of recognising positive rights on such matters
as strikes and picketing. 47 All that I am saying is that,
for good or ill, English law is so remedy— and duty-oriented
that it has had, and still has great difficulties in creating a
45 The full story of this is well known, and fully documented in such writings
as Wedderburn, "Intimidation and the Right to Strike," (1964)
M.L.R. 257. It is enough here to cite cases such as Rookes v. Barnard
[1964] A.C. 1129 and Stratford \. Lindley [1965] A.C. 269.
46 See e.g. Broomev. D.P.P. [1974] A.C. 587; British Airports Authority v. Ashton
[1983] 3A11E.R. 6.
47 See, for instance, Wedderburn, "Industrial Relations and the Courts"
(1980) 9 I.LJ. 65; Forde, "Bills of Rights and Trade Union Immunities:
Some French Lessons," (1984) 13 I.LJ. 40.