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

Pragmatism and Theory in English Law 35
academic has two distinct senses. On the one hand, it can
mean a point of law or an approach to a legal question
which is possibly of theoretical, but of no practical importance,
and on the other hand, of course, it can refer to a
scholar or teacher. While it would perhaps be unfair to suggest
that English lawyers typically regard academics in the
second sense as persons of possibly theoretical but no practical
importance, it is not, I think, unreasonable to suggest
that in the English legal system the scholar or teacher is a
person with a decidedly inferior status. We are so used to
this disparity of status in England that it usually passes
without comment, and tends to be regarded as part of the
natural order of things. In England, judges and practitioners
are so obviously persons of greater importance,
higher status and more extensive responsibilities than academics
that it is perhaps difficult to appreciate that things
are not necessarily thus, and that indeed, such matters are
often differently arranged even in other common law contries
such as the United States.
If we first of all compare the function of the academic and
the practitioner or judge in the English legal system, it
seems clear that, according to the received wisdom, the academic
has a fairly modest role. His job is to teach, but what
does he teach? Why, clearly, he teaches the law laid down
by the courts and by Parliament. Naturally, this itself
emphasises his subordinate role in the system as a whole.
But there is also a pretty strong tradition among English
lawyers that law is anyhow not taught, but learned. Booklearning
is often regarded with some scorn, as compared
with practical experience, learned on the job. I recall some
years ago an expert witness being cross-examined in a trial
by a distinguished barrister who tried to throw some doubt
on the witness's credentials by asking the devastating ques-