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

The Strengths of the Pragmatic Tradition 65
orders are often made without the formality of issuing a writ
or having an affidavit sworn, in complete reliance on information
supplied by counsel. This procedure therefore
depends entirely on the integrity of the bar and would
simply not be possible if the courts could not rely on counsel's
word. And the Anton Piller orders also depend on the
ability of the courts to rely on the solicitors who serve these
orders in circumstances in which breaches of the peace or
serious violence could easily occur. These are features of our
legal system which contribute to its pragmatic strength, and
assist in the development of effective legal remedies; yet
they are features of the system which would rarely be
studied in conjunction with the substantive law. They
demonstrate, I think, how all the parts of a legal system,
including the organisation and integrity of the legal profession,
contribute their part to the law itself.
The injunction has also been a useful instrument for
devising new remedies in other areas where the law is in
need of development, but the courts have been hesitant to
define or develop the substantive rights which would be
implied by granting other remedies. So for instance the law
relating to breach of confidence, which has developed apace
in recent years, has done so almost entirely through the
medium of the remedy of the injunction, rather than by the
open expansion or development of substantive rights. 36 It
could also be suggested that many other recent innovations
in our private law, which have taken the form of granting
judicial discretion, for instance, to strike down the terms of
a contract 37 or set aside the terms of a will, 38 also illustrate
M ' See generally the Law Commission Report, Breach of Confidence Cmnd.
8388(1981).
" See the Unfair Contract Terms Act 1977.
'" See Inheritance (Provision for Family and Dependants) Act 1975.