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

The Strengths of the Pragmatic Tradition 49
ject. In an open ended system of rules like the common law,
major premises can hardly ever be comprehensively stated.
It is nearly always open to the judges to read in qualifications
or exceptions to apparently firm rules because there
are nearly always other purposes and objectives of a general
character which can in particular circumstances qualify the
more specific rules which the court is dealing with. General
objectives such as the efficient administration of justice,
fundamental procedural rules requiring that justice be seen
to be done, broader priniples drawn from other areas of the
law, and so on, must often qualify the precise legal rules
before the court. Even statutory rules, which in this country
often appear to be stated in dogmatic and unqualified form,
still have to be read in the light of general principles and
objectives of this character. For example, a statutory provision
declaring that anybody who does such and such shall
be guilty of an offence still has to be read in the light of
general principles of the criminal law, such as requirements
of metis rea, the capacity of children or insane persons, the
responsibility of secondary parties, and so on. That is why it
is rarely possible to take even the simplest statutory prohibition
as the major premise of a syllogism, feed in the finding
that the accused has done the prohibited act as the
minor premise, and then expect the conclusion to follow
validly that the accused is guilty of the offence. The statutory
provision will very rarely, and perhaps never—and I
incline to think "never" is more correct—contain the whole
of the major premise which is required before syllogistic
logic can get to work.
Judges who reject "strict logic" arc often doing nothing
more than insisting that the apparent premises of a syllogism
proffered in argument must be qualified by other factors
of the kind I have just mentioned. It is clear, for