The rise of legal pragmatism in English contract law

Writing extra-judicially in an article published in 1996 Lord Steyn asked whether legal formalism held sway in English law.1 Although he considered this question from a broad perspective, looking at a number of areas of law, he also considered the question in relation to the law of contract. Drawing on his Lordship’s comments, both judicial and extra-judicial, this article seeks to demonstrate a clear change in judicial approaches to decision-making which signals a move away from formalistic interpretative techniques towards an approach very much akin to the legal pragmatism developed by Judge Richard Posner in the United States. However, the limits to the development of that approach will be demonstrated with reference to a comparison between judicial and academic conceptions of reasonable expectations in contract.