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66 The Strengths of the Pragmatic Tradition this tendency to develop the law by invoking remedies and procedures, rather than by the grant of new substantive rights. Any detailed study of the pragmatic strength which English law displays as a result of being remedy-oriented would also have to take full account of two other very practical subjects which are not generally regarded as a part of the substantive law, that is, the law and practice relating to costs and to the award of pre-judgment interest. I do not have time to discuss these at all adequately within the scope of these lectures, so I will simply point to the way in which American law, which generally does not follow the English practice as to costs or interest, has had to develop instead many complex new processes and forms of liability, for instance, by greatly expanding liability for malicious abuse of legal process 39 and by making wilful refusal to pay a debt a tort justifying exemplary damages in certain circumstances. 40 These new forms of liability, however, often seem much less effective in discouraging wasteful and dilatory litigation than the English rules and practices as to costs and the award of pre-judgment interest. 41 Indeed, I think one could go further and suggest that English law is exceptionally inhospitable to litigation. Certainly compared with America, but also (I believe) compared with France, the English legal system seems to discourage litigation by every means in the book. Again, I do not have space to examine this question in any detail, but I incline to think that this too is a sign of pragmatic strength in the legal system. Liti- 39 See, e.g. Restatement of Torts (Second) § 674, and § 681 (b), and by way ofillustration, O'Toolev. Franklin 569 P. 2d. 561 (1977). 40 See Farnsworth, Contracts (1982), § 12.8, at pp. 883-884. 41 This subject is dealt with more fully in P. S. Atiyah and R. S. Summers, Form and Substance in Anglo-American Law (forthcoming).
The Strengths of the Pragmatic Tradition 67 gation rarely does anyone any good, and to facilitate it too readily may just encourage people to turn trifling disappointments into imagined grievances and injustices. Let me quote on this point the wise words of Lord Radcliffe: "[QJuite simply, life has to go on, and in a progressive society it is better that grievances, if they are not vital grievances, should be forgotten, rather than put right at the expense of public time and energy . . . [I]t is on the whole to everyone's advantage that things done should not be undone and that everyone should be able to count on this ... [I]t does not always serve the public interest that certain things should be put right by the courts, even if they .ought to be adjusted in the ordinary decencies of private life." 42 I do not think it is any coincidence that it is also in the field of remedies that some other dramatic developments of judge made law have taken place in recent years. Consider, for instance, the power of the House of Lords to reverse its own previous decisions, which was asserted by the Practice Statement of 1966. I doubt if there has been a more vigorous exercise of this power than that which occurred in the Miliangos case in 1976, 43 when it was held that an English court could in an appropriate case give judgment in a foreign currency, thereby reversing some three hundred years' of legal history. Perhaps also I can draw attention here to the way in which the House of Lords devised one of the most significant modifications to the privity of contract principle in Beswick v. Beswick** by developing the remedy of 42 Not in Feather Beds (1968), p. 33. 43 [1976] A.C. 443. 44 [1968] A.C. 58.
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THE HAMLYN LECTURES Thirty-ninth se
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THE HAMLYN LECTURES THIRTY-NINTH SE
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PRAGMATISM AND THEORY IN ENGLISH LA
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CONTENTS The Hamlyn Lectures The Ha
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viii The Hamlyn Lectures 1962 Lawye
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THE HAMLYN TRUST The Hamlyn Trust c
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1. Pragmatism and Theory in English
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186 Table of Cases D.P.P. v. Majews
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188 Table of Cases Sidaway v. Bethl
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INDEX ACADEMIC LAWYERS, 5,132 comme
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Index 193 PARLIAMENTARY SOVEREIGNTY
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