Changing the Mindset: The Place of Theory in English Administrative Law

Abstract

When English administrative law is accused of being atheoretical, many read this as a reverse compliment. The pragmatic quality of the common law, rooted (in the famous phrase') in experience rather than logic, is a matter for selfcongratulation. The emphasis on the practical is what has maintained the flexibility of the common law and provided its capacity for incremental change, enabling it to keep in touch with the men and women on the Brussels shuttleservice. As Neil MacCormick, exploring the role of contemporary legal philosophy, once put it, bus-driving is what bus-drivers do, conveyancing is what lawyers do and both 'will do it regardless of any philosophical fuss'.' Theorizing, on the other hand, is what philosophers do and they are welcome to get on with it. How could philosophy be of use to a bus-driver? And would anyone wish to board a bus driven by a philosopher? It is hard to say whether this scepticism is, as some think, an essential component of the dominant tradition of legal positivism,3 or simply an example of English anti-intellectualism. Lord Reid, another Scot, once encapsulated the English attitude to law in the aphorism that 'An ounce of fact is worth a ton of theory'.4 This acknowledged anti-theoretical bias in the common law mind-set is nicely conveyed by the prestigious Hamlyn Lectures, a truly Diceyan series endowed for the glorification of the English