
At last November’s F A Mann Lecture, Justice Philip Sales of the UK Supreme Court offered a compelling philosophical framework for understanding how purpose shapes the creation and interpretation of law. Drawing on the works of American jurist Lon Fuller and philosopher Ludwig Wittgenstein, Sales illuminated why purposive analysis remains indispensable across the legal landscape.
Sales’s thesis rests on two philosophical pillars that deserve attention. The first is Fuller’s conception of law as “the enterprise of subjecting human conduct to the governance of rules”. This frames purpose not merely as an interpretive tool, but as constitutive of law itself. The second is Wittgenstein’s analysis of language as inherently purpose-driven, with meaning emerging from use rather than from fixed referents.
Despite going on at length about the nature of language as propounded by philosophers, Sales acknowledged that common law is averse to philosophy, prioritising practical experience in real-world cases over abstract ideas. This, to me, presents an intriguing paradox that warrants deeper scrutiny. Although judges and practitioners typically claim they value real-world experience over theoretical frameworks, this stance exposes an important—and usually overlooked—intellectual commitment that demands careful consideration.
The common law, Justice Edward Coke wrote, represented “an artificial perfection of reason, gotten by long study, observation, and experience”. To him, perfection is the expertise attained by lawyers down the ages—“an infinite series of grave and learned men”.
King James I’s assertion of the right to decide issues where the law was unclear later became known as the Case of Prohibitions (1607). Coke observed, “The king said that he thought the law was founded upon reason, and that he and others had reason as well as the judges… But he was not learned in the laws of his realm of England, and causes which concern the life, inheritance, goods or fortunes of his subjects are not to be decided by natural, but by the artificial reason and judgement of law, which is an act that requires long study and experience”. As we will see, this remains the foundational principle of practical law.
Justice Markandey Katju, while serving as a judge of the Allahabad High Court, in Shambhu Dayal (2002), remarked that even the members of the executive services “will not be able to dispense justice and discharge judicial functions properly not being possessed of a trained judicial mind nor conversant with intricate applicable legal principles and judicial manner of thinking. They are likely to have an inbuilt pro-executive bias, having worked for long years in the executive and hence will not inspire the confidence of the public”.
This is because legal reasoning is understood to be that which aligns closely with the prevailing consensus within the legal community. Common law and legal reasoning fundamentally rely on inductive and analogical reasoning derived from the specifics of individual cases. Judges in common law regimes, such as the UK and India, view their role as incrementally advancing the law through the resolution of specific cases, guided more by precedent than by a thorough theoretical foundation.
One may even argue that there is nothing natural about the common law, as it is supposed to be shared among a fraternity of lawyers. It is also not brought out by the discovery of practical principles through abstract reasoning but through sustained participation in the practice of law. As such, philosophers, economists and theologians, who are prone to deductive reasoning from abstract principles, find common law wanting.
However, this explains the general unwillingness of judges to resort to any kind of top-down, deductive reasoning from abstract principles. It is indeed true that the concept of reason as ‘artificial’ implies an understanding that legal reasoning is always a constructed endeavour—an attempt to gain a degree of coherence in the chaotic elements of social existence. Therefore, the true question is not whether legal reason is artificial, but what form of artifice it embodies and for what purposes.
Legal concepts evolve through the accumulation of court rulings. Each case is impacted by and at the same time can modify an established doctrine. This focus on case-specific, fact-intensive analysis fosters a pragmatic, almost anti-intellectual approach in common law reasoning. Broad generalisations are seen with suspicion as unwarranted intrusions on the liberty to make decisions. The common law judge places more importance on reaching a just and workable conclusion to a conflict than on outlining general philosophical ideas, especially if doing so means distinguishing or limiting relevant precedents.
Of course, the hostility of the common law to abstract thought has not completely isolated it from philosophical influences. From the natural law ideas of Thomas Aquinas and William Blackstone to the utilitarianism of Jeremy Bentham and John Stuart Mill to the legal positivism of H L A Hart and Joseph Raz, many philosophical systems have shaped common law theory.
As Sales so brilliantly illustrated in his speech, ideas from philosophers may help in better highlighting basic aspects of legal language and practice. The strength of the common law is its readiness to give top priority to what works above what looks good on paper. Justice, as they say, cannot always be summed up in one formula.
Saai Sudharsan Sathiyamoorthy
Advocate, Madras High Court
(Views are personal)