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The relationship between theory and practice across forms of life 343
long-standing publicly-recognised institution for carrying on intimate or
familial relationships. Even in times of radical transformation, reiteration
and mimicry of existing social practices is the norm.
A reader might want to stop and say, ‘But wait, isn’t Tiger Woods talking
about how theory is altering his practice in the quote above?’ Yes. That’s
true. But to a point. And a very limited one. When the greatest golfer ever to
play the game talks about theory and change, he is talking about what it
means for someone who has already mastered the finest points of the game
(after over 35 years of practice) to make incremental modifications designed to
improve his ball striking. Everyone knows that you can read the entire oeuvre
of golf literature, and never get the ball in the air. Coaches are for Woods
what Wittgenstein’s philosophers are to other discursive practices – aids
against bewitchment. It might feel to Woods, at any given moment, that he is
doing things correctly. But it takes the trained and patient eye of another (his
coach) to spot the tiny variations that make all the difference between a good
swing and a bad one.
While I do not wish to diminish the contributions of fellow members of
South Africa’s legal academy, it seems to me that we – and I include myself –
often get the relationship between theory and practice back to front. To some
extent, our betters and predecessors, such as Ronald Dworkin, are responsible
for this mistake. From Taking rights seriously, to Law’s empire to Law’s domain,
Dworkin has laid out modernity’s deepest and broadest theory of law,
generally, and of constitutional law, in particular. General bewitchment by
Dworkin’s project hardly comes as a surprise. 3
The first problem, as Dewey pointed out, is that Dworkin (and those
legal philosophers who emulate him) have ‘arrogated to [themselves] the
office of demonstrating the existence of a transcendent, absolute or inner
reality and revealing to man the nature and features of this ultimate and
higher reality’. 4 As Wittgenstein and Heidegger note (as per the quotes
above), no such transcendent, higher reality exists. The practice, and our
ability to master it, comes first. 5
Only subsequent to mastery may we indulge in critique.
3
That a constitutional theory must be a theory of ‘everything’ may still attract a certain
following, but my sense is that most serious contemporary constitutional law scholars
would now reject that proposition. See LH Tribe Constitutional choices (1988) (‘My
reply to the grim metamorphosis of constitutional argument ... into instrumental
calculations of utility or, as pseudo-scientific calibrations ... in which the “costs” ... are
supposedly “balanced” against the “benefits” ... is not to propose an alternative
method ... My reply is to question all formulas as concealing the constitutional choices
that we must make – and that we cannot responsibly pretend to derive from any neutral
method.’)
4
J Dewey Reconstruction in philosophy (1920) 23.
5 Wittgenstein (n 2 above) (para 150) (‘mastery’ of a technique.)