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

Pragmatism and Theory in English Law 21
legal structure which recognises these basic industrial
rights. And I must add that the same problem arises for
many other civil liberties issues, such as the right to demonstrate,
even the ordinary right to come and go as we will,
which turns out not to exist at all, but to be merely the correlative
of the policeman's duty not to stop us unless he has
legal cause. 48
I turn now to the second stage of the rights-remedies distinction.
Not only has English law generally been much
happier in dealing with duties than with rights, it has also, I
think, clearly been happier in dealing with remedies than
with rights. Indeed, English law has for long prided itself in
being strong on remedies, even if it is less interested in
rights. 49 There is a long tradition, made up of many different
strands which have gone into this particular bias in
English law; and I use the word without any pejorative connotation.
One such strand, for instance, is the role of equity
in the history of English law. Equity, as we all know, operates
in personam. It is, or certainly was in origins, largely a
system of remedies, based upon the ultimate power of the
injunction. The power to order a particular defendant to do
a particular thing, and to threaten him with imprisonment
if he failed, was a pretty potent weapon with which to deal
with recalcitrant and powerful magnates at a time when the
enforcement of the law was a good deal more difficult than
it is today. Rights and duties after all, may exist on paper,
but those who are unimpressed by pieces of paper may still
have a healthy respect for threats of imprisonment. In one
48 See Moss v. McLachlan [1985] I.R.L.R. 76; see further, Wallington,
"Policing the Miners'Strike" (1985) 14 I.L.J. 145, at pp. 154-156.
49
"fTlypically, English law fastens not on principles but on remedies,"
per Lord Wilberforce in Davy v. Spelthome B.C. [1983] 3 All E.R. 278, at
p. 285.