Invention – if a way out of a tight corner has to be found, then it will be found.

Adams and Brownsword continue as follows:

Realism is the antithesis of formalism. It follows that each of the formalist

tendencies is matched by a realist tendency which pushes in the opposite

direction.

First, the rule book is not decisive. The most important aspects of a dispute are

the facts and the decision; rules are a secondary consideration. If formalism is

rule-orientated, realism is result-orientated. In many ways, Lord Devlin’s

observation that ‘The true spirit of the common law is to override theoretical

distinctions when they stand in the way of doing practical justice’ (Ingram v

Little (1961)) enshrines the realist articles of faith.

Secondly, the logic of the rule-book concepts is by no means the be-all and endall.

Immediately, one thinks here of Lord Denning’s criticisms of traditional

offer and acceptance analysis, and of his cavalier exploits with regard to

consideration. But Lord Denning is not alone in such a realist disregard for the

logic of the concepts. For example, the logic of the concepts did not prevent the

majority finding the required contractual connection in The Eurymedon, nor did

it stop the House of Lords finding a remedy for Mrs Beswick.

Thirdly, realists do not regard blotting the rule-book as the ultimate sin. If

practical justice demands some running repairs, then the elegance or

conceptual neatness of the solution hardly matters. What matters is that the

repair job works. Formalists may pour scorn on such realist patch-up jobs as

the device of the collateral contract or the doctrine of the fundamental term,

but realists can take such criticisms without flinching. Realists know a

spatchcock solution when they see one, but a solution is at least a solution.

Fourthly, realism tends towards doctrinal and conceptual innovation. Judges

are not to be discouraged from sowing new doctrinal seeds (for example,

13 Adams and Brownsword, 2000, pp 168–70.

6

What is Contract Law All About?

promissory estoppel, unconscionability, economic duress, the doctrine of the

innominate term) simply because it is not clear how the doctrinal plant will

grow. Nor are judges to be discouraged from cultivating newly born ideas. If a

recent innovation supports a particular decision, then there is no reason to

eschew such support in favour of a traditional ground for the same decision.

Fifthly, for realist judges, ‘sympathy and politics’ do matter. It is all very well

complaining that hard cases make bad law; but if judges ignore the obvious

merits of a case, practical justice goes by the board and the law is rightly

accused of being an ass. Likewise, politics, broadly interpreted, do count.

Where a judge considers a particular rule or its application unfair, or

Inconvenient, he should recognise the force of these considerations. On the

realist view, judges must act as custodians of practical justice and convenience,

not simply as the keepers of the code.

Sixthly, for realists, the mechanical and uncritical adoption and application of

the rule book will not do. Rules are laid down for a purpose, to defend some

principle or to support some policy. When rules no longer serve their intended

purpose, when they become detached from their point, slavish adherence to

the rule book undermines the spirit of their enactment. The drive towards

consumer protection is the outstanding example of a realist recognition that

the world changes and that, in a changing social context, the original intent of

the rules may become perverted by their continued uncritical application. (To

avoid misunderstanding, we should emphasise that realists are not tied to the

purposes underpinning the rule book. In the final analysis, the rule-book,

whether read literally or purposively, is marginal to realism.)

Seventhly, realism is not necessarily inconvenienced by a rule-book which is

riddled with discretions. At least, for realists of a consumer-welfarist

persuasion, if the rules enjoin judges to decide according to the canons of

reasonableness, fairness, conscionability, and the like, this is no problem, for it