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

68 The Strengths of the Pragmatic Tradition
specific performance rather than by any modifications of
the substantive law. As you will remember, the House there
held that the promisee could obtain a decree of specific performance
to compel the promisor to carry out his contract
for the benefit of the third party beneficiary. And if, as Lord
Reid and Lord Scarman have both foreshadowed, the continued
unwillingness of Parliament to reform the law of
privity leads the courts to take this task on themselves, it
will not be surprising if they do so largely by extending this
procedural and remedial device. It would not be difficult,
for instance, for the courts to require the promisee to allow
his name to be used by the third party in an action against
the promisor, so long as the promisee is given an indemnity
against costs. This is pretty much what happened in the old
law of equitable assignments, and ample precedent would
be found for breaking the barriers of privity in this way.
Precedent and Principles
I said in my first lecture that it was obviously impossible to
draw a sharp line between systems of law dominated by
precedent and those in which principle is conceived to be
paramount. Precedents are supposed to create, or to lead to
the development of, principles. At the same time, I also suggested
that one could detect different tendencies in the common
law system, which inclined to a greater emphasis on
precedent, and in civil law systems, which inclined towards
a greater reliance on principles, and especially perhaps
principles of a broader and more comprehensive scope. I
now want to develop this theme, and to suggest a number of
particular respects in which the common law stress on precedent
has real pragmatic strength. First, it is apparent that
the great emphasis on precedent which is characteristic of
English law in particular requires the facts of the case to be