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342 Chapter 15
1 Introduction
The way the vast majority of us (legal academics in South Africa) think
about the relationships between legal theory and legal practice is
dramatically out of step with what the majority of (non-legal)
philosophers, neuroscientists, cognitive psychologists, economists, and
other behavioural researchers have to say about the relationship between
theory and practice. One consequence of these erroneous views is that the
manner in which the majority of us understand ‘theory’ – as a metaphysical
term – is sharply at odds with how things actually are. We replicate similar
kinds of errors when we think about how various forms of life, ways of
being in the world or social practices are constructed and how change
actually occurs within such practices. Once again, epistemological fallacies
with regard the role of legal theory have the consequence of leading us to
reify legal theory in a manner that closer inspection shows to be
unwarranted. This second error (‘the reification of theory’) leads many a
legal academic to offer theoretical critiques at odds with what we know
about the human condition and of limited value with regards to the
reconstruction of the form of life we call ‘law’.
Advocates and attorneys in South Africa know something legal
academics often forget: Practice and theory work hand in glove. For the
most part, theory is understood as therapy for practice and they endorse
the Wittgensteinian proposition that [legal] ‘philosophy is a battle against
the bewitchment of our intelligence by means of language’. 1 What they are
aware of – consciously or not – is that we often mistakenly speak of the
social practices, endowments and associations that make up our lives as if
we were largely free to choose them or make them up as we go along. We
are not. As Walzer argues, there is a ‘radical givenness’ to our social world
and the practices that make it up. 2 What he means, in short, is that most of
the practices that make up our social life are involuntary. We do not
choose our family. We generally do not choose our race or religion or
ethnicity or nationality or class or citizenship. More to the point – we
rarely choose or even influence the legal system that controls part of our
social life. Moreover, even when we appear to have the space to exercise
choice, we rarely create the practices within which we participate. The
vast majority of our practices and forms of life are already there, culturally
determined entities that pre-date our existence or, at the very least, our
recognition of the need for them. Finally, even when we overcome inertia
and do create some new practice (and let me not be understood to
underestimate the value of such overcoming and creativity), the very
structure and style of the practice is almost invariably based upon an
existing rubric. So gay marriages may be truly new – but marriage itself is a
1 L Wittgenstein Philosophical investigations (1945) (1953) para 109.
2
M Walzer ‘On involuntary association’ in A Gutmann (ed) Freedom of association (1998)
64 67.