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

Pragmatism and Theory in English Law 31
what that principle is, and how it is to be developed, will
very soon become settled by precedent.
Of course, it may be objected, part of the fault for all this
lies in the way legislation is drafted in England. Most legislation
is not drafted in the form of a statement of true principles,
broad generalisations. Much of it is drafted in the
form of a set of specific rules, ad hoc solutions to particular
problems. Nobody would read a modern English statute for
its literary elegance as it was said that Flaubert used to read
the French Code Civil. 67 But this only goes to confirm my
point about the power of the pragmatic approach in English
law. Even when we do use legislation, an instrument well
suited to the enactment of broad principles and generalisations,
we find ourselves so shackled by traditional common
law methodology, that we fail to use legislation in an effective
and principled manner. Our preference for precedent
or pragmatism over principle is thus itself partly responsible
for the unsatisfactory way we handle statute law. In
particular, the detailed and crabbed style of legislative
drafting means that it becomes almost impossible for the
courts to draw principles from legislation, to treat legislation
as a living graft on the common law, and to develop
the law as an integral whole. 68 What is more, the blame for
this aspect of legislation cannot in fairness be laid at the
legislature's door. Most legislation, as I have said, derives
from politicians and administrators, but it is lawyers who
are responsible for the form and shape of legislation. It is
government lawyers who have persuaded politicians and
administrators that legislation should be drafted in the way
67 See for some fierce, but not unjustified, criticisms of the style of English
legislative drafting, Honore, The Quest For Security: Employees, Tenants,
Wives, (Hamlyn Lectures, 34th Series, 1982), pp. 118-123.
68 See my "Common Law and Statute Law," (1985) 48 M.L.R. 1.