Abstract
This article examines the enduring tension between legal elegance and real-world effectiveness within the common law tradition. It contrasts judicial pragmatism with academic abstraction, showing how excessive theory can distance law from social, commercial, and democratic realities. Drawing on English and Indian constitutional experiences, it argues for judicial restraint, incremental reasoning, and intellectual humility as essential to preserving legitimacy. Ultimately, the piece contends that law succeeds not through perfect theory, but through practical wisdom that works in lived conditions.
Law Between Elegance and Effectiveness
Law is often judged by how it reads rather than how it works. Elegant reasoning, soaring abstractions, and philosophically satisfying theories exert a powerful pull on legal minds. Yet the real test of a legal system lies not in its intellectual symmetry but in its capacity to govern life in all its untidy complexity. This tension—between elegance and effectiveness, between theory and practice—runs through the heart of the common law tradition.
At its core lies a fundamental distinction: judges resolve problems; jurists build systems. Both roles are essential. But when the latter overwhelms the former, law risks drifting away from the very society it exists to serve.
The Common Law’s Quiet Virtue: Pragmatism
The genius of the common law has never been grand design. Its strength lies in incremental development, shaped case by case, fact by fact. Principles emerge obliquely, often as by-products of dispute resolution rather than as explicit theoretical commitments. This gradualism is not intellectual timidity; it is constitutional wisdom.¹
Judges are required to decide real disputes, not hypothetical puzzles. They must deliver outcomes that work—not just in theory, but in practice, commerce, governance, and social life. This necessity imposes a discipline unknown to pure theory. Judicial reasoning is constrained by precedent, procedure, and consequence. It must fit within an existing legal ecosystem, not reinvent it.
Pragmatism, therefore, is not a stylistic choice. It is an obligation.
Jurists and the Temptation of System
Legal scholars, by contrast, are naturally drawn to coherence. They seek patterns, underlying principles, and unifying explanations. Innovation, iconoclasm, and paradigm-shifting ideas are rewarded within academia. This is neither surprising nor undesirable. Without jurists, law would stagnate.
Yet scholarship carries a recurring temptation: to mistake elegance for truth.
Abstract theory can become dangerously persuasive when detached from the lived realities of adjudication. Systems that appear flawless on paper may generate confusion, distortion, or injustice when imposed on practice. The history of private law offers cautionary examples where imported theories—however intellectually impressive—produced doctrinal knots that courts have spent decades trying to untangle.²
Contract Law: A Discipline That Must Work
Contract law exposes this tension most clearly. It is not a moral philosophy. It is a facilitative institution designed to support voluntary exchange. Parties choose whether to contract, and they choose the legal system under which they operate. If a legal regime fails to align with commercial expectations, sophisticated actors simply exit.
English contract law has flourished precisely because it resists moral grandstanding. Absolute obligations are tempered by modest remedies. Doctrinal rigidity is quietly softened where it would obstruct commercial sense.³ Consideration, privity, and other technical requirements often survive formally while being pragmatically bypassed when justice or utility demands.
This is not hypocrisy. It is institutional realism.
Attempts to impose sweeping theoretical purity—whether through doctrines of mistake or ambitious restitutionary remedies—have repeatedly proven disruptive.⁴ When theory outpaces practice, courts eventually retreat, leaving behind awkward doctrinal remnants that complicate rather than clarify the law.
The Rise of Theory in Public Law
If contract law illustrates the virtues of pragmatism, public law reveals the dangers of abandoning it.
Over recent decades, constitutional adjudication has undergone a stylistic transformation. Judicial reasoning has become more expansive, more theoretical, and more openly engaged with fundamental questions of sovereignty, democracy, and constitutional identity. Written judgments now resemble academic essays, complete with elaborate structures and philosophical exposition.⁵
This development is often celebrated as transparency and intellectual maturity. Yet it carries serious risks.
Courts are not uniquely equipped to resolve society’s deepest moral and political disagreements. Their decisions are authoritative, but authority is not the same as legitimacy. When judges pronounce definitively on divisive constitutional questions, they may settle a case but inflame a society.⁶
History offers sobering lessons. Judicial triumphs achieved through abstraction can provoke backlash, polarisation, and long-term instability. Political processes, for all their messiness, possess a capacity for compromise that adjudication lacks.
The Indian Constitutional Experience: Activism, Idealism, and Its Limits
India’s constitutional journey offers a particularly vivid illustration of these tensions.
Transformative Constitution and Judicial Activism
The Indian Constitution is explicitly transformative. It entrusts courts with the protection of fundamental rights, social justice, and constitutional morality. Faced with executive inertia, legislative failure, and deep social inequality, Indian courts—especially since the late 1970s—have often stepped beyond traditional adjudication.⁷ Public Interest Litigation, expansive readings of Article 21, and continuing mandamus have reshaped governance.
At critical moments, this judicial assertiveness was not merely justified; it was necessary. Environmental protection, prison reform, bonded labour abolition, and access to justice might not have advanced without it.⁸ In these contexts, pragmatism took the form of creative intervention.
Yet success bred confidence, and confidence sometimes edged into overreach.
Abstraction and Judicial Overreach
Indian constitutional adjudication has increasingly embraced high abstraction—constitutional morality, transformative constitutionalism, dignity, fraternity—concepts rich in normative power but thin in operational clarity.⁹ Judgments now frequently pronounce on ideal constitutional states rather than resolving concrete institutional disputes.
Judicial Supremacy and Democratic Space in India
India’s experience also highlights the difficulty of drawing boundaries between law and politics in a constitutional democracy.
Questions concerning reservations, religious freedom, electoral processes, federal relations, and institutional appointments increasingly reach the judiciary framed as matters of constitutional principle.¹⁰ In resolving them, courts are often tempted to provide definitive moral answers.
Yet Indian democracy, diverse and deeply plural, depends on compromise. Parliamentary debate—however imperfect—remains the primary site for reconciling competing values. When courts foreclose that space by constitutionalising every disagreement, political dialogue shrinks.
Judicial authority may grow, but democratic legitimacy suffers.
Modesty as Judicial Statecraft
Restraint is not weakness. In constitutional adjudication, it is a form of statecraft.
Courts possess numerous tools to avoid unnecessary confrontation:
- Standing rules
- Procedural thresholds
- Remedial discretion
- The style and scope of reasoning itself
Narrow decisions, grounded in facts rather than grand theory, preserve institutional legitimacy and democratic space.¹¹
Analogical reasoning, incremental development, and deliberate silence on ultimate questions are not evasions. They are techniques that allow law to function within a living constitutional order.
A Case for Intellectual Humility
None of this is an argument against theory, scholarship, or ambition. Law would be impoverished without historical insight, comparative analysis, empirical research, and philosophical critique. The point is balance.
- When theory forgets practice, it becomes sterile.
- When courts forget restraint, they become political actors.
- When elegance displaces effectiveness, law ceases to serve.
The common law’s enduring strength—shared in different measure by both English and Indian constitutional traditions—lies not in its perfection, but in its capacity to muddle through: adapting, correcting, and responding to human complexity without pretending to master it.
In law, as in life, wisdom often lies not in saying everything that can be said, but in knowing how much should be left unsaid.
Footnotes (Indian & UK Case Citations)
| Jurisdiction | Case Citation |
|---|---|
| United Kingdom | R v G [2003] UKHL 50; Lord Goff’s emphasis on gradualism echoed across common law reasoning. |
| United Kingdom | Bell v Lever Brothers Ltd [1932] AC 161 (HL). |
| United Kingdom | The Eurymedon [1975] AC 154 (PC). |
| United Kingdom | Attorney General v Blake [2001] 1 AC 268 (HL). |
| United Kingdom | R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. |
| United States | Roe v Wade 410 U.S. 113 (1973); Dobbs v Jackson Women’s Health Organization 597 U.S. (2022). |
| India | Maneka Gandhi v Union of India (1978) 1 SCC 248. |
| India | Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; Hussainara Khatoon v State of Bihar (1979) 3 SCC 463. |
| India | Navtej Singh Johar v Union of India (2018) 10 SCC 1; Joseph Shine v Union of India (2019) 3 SCC 39. |
| India | Kesavananda Bharati v State of Kerala (1973) 4 SCC 225; S.R. Bommai v Union of India (1994) 3 SCC 1. |
| United Kingdom | Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; Privacy International v Investigatory Powers Tribunal [2019] UKSC 22. |
