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

The Strengths of the Pragmatic Tradition 11
loss in tort on the ground that to decide otherwise would be
to impose "liability in an indeterminate amount for an indeterminate
time to an indeterminate class." 56 Ever since
Donoghue v. Stevenson'' 7 this argument has been treated with
decreasing respect in English law, if only because constantly
expanding liability in a variety of directions has still
not seriously taxed the capacity of the courts. It is true that
litigation has undoubtedly increased and that we do have to
increase the number of judges from time to time, but as the
population is still increasing and growing prosperity makes
more people have more worthwhile issues to litigate about,
this is not itself a cause for surprise or alarm. But here we
note a curious point. If the rejection of the floodgates argument
is based on the highly pragmatic and precedent-based
idea that each problem can be treated on its merits as new
cases come along, it is also true that the floodgates argument
is itself a highly pragmatic argument. For the argument
is fundamentally based on the proposition that rights
and liabilities should not be imposed where they are likely
to lead to more litigation than the courts are properly
equipped to handle. In the Junior Books case 58 Lord Fraser
and Lord Roskill rejected the floodgates argument as
unattractive, because it involved drawing an "arbitrary and
illogical line just because it had to be drawn somewhere." 59
But (with respect) it seems to me that the learned law lords
failed to observe that the answer to the floodgates argument
is itself rarely a principled and "logical" argument, but is
itself nearly always a highly pragmatic argument. True,
56 Ultramares Corp. v. Touche (1931) 255 N.Y. 170, at p. 179, 174 N.E. 441,
at p. 444.
57 [1932] A.C. 562.
58 [1983] 1 A.C. 520.
59 Lord Fraser, [1983] 1 A.C. 520 at p. 532.