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

The Strengths of the Pragmatic Tradition 53
applied to the case, the Court of Appeal upheld the
accused's conviction on the grounds that a mistaken belief
in facts which had repeatedly been determined by the
courts could not be set up as a defence to a charge of assault
in this circumstances. Any other conclusion would surely
have been an outrage to common sense, because one of the
main purposes of having a system of courts is to provide a
means of determining finally what the rights of parties are
when they get involved in this sort of dispute. When the
courts have made their decisions after full hearing, and with
the parties taking their part, and when appeals have been
exhausted, it is absurd that one of the litigants should be
permitted to insist that he is right and the courts are wrong,
and should further claim to be entitled to act on that belief.
The only flaw in the court's reasoning is its suggestion that
a logician might have disapproved of its decision, which
seems to me a complete libel on logicians.
The stress on facts which I shall discuss in more detail
below, and which seems to me to be closely bound up with
the inclination of the common law towards precedent rather
than principle, also seems to have a bearing on one of the
senses in which, as we have seen, English judges tend to be
so averse to "logic." A rich factual analysis enables judges
to avoid what may be a facile and apparent consistency of
approach which overlooks deep underlying distinctions.
Consider, for instance, the judgments of the Court of
Appeal in the recent case of R. v. Deputy Governor of Camphill
Prison. 10 The question at issue here was whether the courts
had powers of judicial review over the decisions of prison
governors who exercised disciplinary powers over prisoners.
Now a few years earlier the Court of Appeal had held that
10 [1984] 3A11E.R. 897.