Why Common Law Is Sceptical of Philosophy

T 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.

- SAAI SUDHARSAN SATHIYAMOORTHY

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. 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 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.

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".