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

44 The Strengths of the Pragmatic Tradition
the role of the bar, the conduct of trials and the making of
legal decisions. But I confine my remarks largely to the
work of the High Court and the appellate courts. I am well
aware that this is to ignore what is quantitatively the largest
and perhaps most significant part of the legal system, and I
know that many of my colleagues would complain that
there is a sort of elitism in the constant tendency of academics
(and perhaps practitioners also) to devote their
thoughts and their rhetoric to the higher courts and to
ignore what happens in magistrates' courts or administrative
tribunals, or even on the very ground floor, as it were,
before disputes reach the stage of adjudication in courts or
tribunals at all. My justification is that I am trying in these
lectures to capture something of the spirit or ethos of the
English legal system, to identify an aspect of English legal
culture; and in this respect the tone is set by the higher
courts. And surely Miss Hamlyn would approve of this concentration
on the higher courts, elitist though it may be; for
one of the differences between England and continental
countries, as I have already suggested, lies in this very tendency
of the English legal system to depend upon judges of
great eminence and prestige.
Logic and Experience
In my last lecture I pointed out that the constant rejection
of "logic" by judges was often misconceived. Judges do
habitually use logic, in the sense that their decisions nearly
always involve, in the ultimate analysis, a finding of a major
premise, consisting of a general proposition of law, a finding
of a minor premise which consists of a determination that
the facts of the present case constitute that premise, and an
application of the one to the other to produce a true logical
deduction. Indeed, as I have already said, it is clear that