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26 Pragmatism and Theory in English Law modern historians would have it. 60 My purpose here is to try to explain the origins of the English lawyer's stress on a remedy-oriented legal process, and for that purpose it was the perception of the way the legal system operated rather than the reality which mattered. So here, at any rate, seems to be another clear strand in the story which helps explain why English law has been so remedy-oriented, as well as showing how this orientation was related to the English lawyer's belief in the pragmatic and his aversion to matters of theory. And there is no doubt that in the constitutional and public law sphere, the tendency of the law is still highly remedy-oriented. To take just one modern example, consider, for instance, how the very far reaching changes in the legal regime for controlling administrative action were introduced by modifications in the Rules of Procedure of the Supreme Court in 1977. Precedent and Principles My third contrast is that between precedent and principles, but as I have already said, this distinction really spills over into a number of others, including even the distinction between case law and legislation, between the concrete and the abstract, and perhaps even between justice according to rules, and justice in the particular circumstances of the case. You will see, easily enough, how this set of contrasts also relates to my basic point that English law prefers the practical and pragmatic to the theoretical and rational. Principles are necessarily more general, more abstract, than precedents. Precedents arise from particular cases, particu- 60 See, e.g. Hay et al., Albion's Fatal Tree (1975) and E.P. Thompson, Whigs and Hunters (1975). But compare John Brewer "The Wilkites and the Law," in An Ungovernable People (Brewer and Styles ed. 1980) and John H. Langbein, "Albion's Fatal Flaws," (1983) 98 Past and Presents.
Pragmatism and Theory in English Law 27 lar sets of concrete facts, which can be related to the case at hand, but the whole point of principles is that they attempt to generalise, to get away from the details of the facts of particular cases. In the process of generalisation, principles also attempt to give some overall structure or rational shape to the law, not just in the interests of elegance, but in the interests of consistency, of the desire to ensure that like is treated alike. Now I do not claim, and it would be absurd to claim, that English law does not deal in principles or abstract generalisations or that English lawyers have no regard for overall consistency in the structure of the law. Indeed, I doubt if any legal system could do this and still claim to be a legal system as we understand that concept. But at the same time, every legal system has to handle individual particular cases. At the end of the day, or anyhow at the end of every trial, and at the end of every practical legal problem, there are real people of real flesh and blood with real problems, and the law must attempt to answer these problems. Our legislation may make it an offence for "any person" to do so and so, but it is not "any person" who gets fined or jailed for breach of the law. It is Jones or Smith or Green. Hypothetical problems, dreamt up by examiners, deal with A and B and X and Y, but the law has to award damages to White or Black. Examination questions deal with Blackacre, but the law has to decide what to do with No. 19; Acacia Avenue when Mr. and Mrs. Brown, who used to live there, decide that they cannot bear each other's company any more. The problem of reconciling the needs of generali-' sation with the needs of the particular case is one of the most difficult and delicate problems faced by every legal system. All that I claim is that in meeting this problem, English law and lawyers today incline towards the particu-
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90 The Weaknesses of the Pragmatic
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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