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The relationship between theory and practice across forms of life 345
means of communication there must be agreement not only in definitions but
also (queer as this may sound) in judgments (para 250).
What Wittgenstein is saying is (a) that we already have the material as hand
to arrive at verifiable truth propositions about the world; (b) that most of
these propositions are shared; and (c) that most of them are true. Only at the
margins, once we have aggressively learned all there is to be learned from one
another, do our differences have any meaningful bite. 9
The point of this initial exercise is to begin to establish the truth of these
last few propositions across various forms of life, ways of being in the world,
or other domains of human endeavour. But of course what brings us here
is our mutual interest in the ontological status of ‘the law’. The rest of this
article spins these initial observations into a concrete set of conclusions by
making three relatively discrete moves. In part 2, I contend that what many
readers would contend is a non-cognitive, non-normative practice – golf –
is as cognitive and normative a practice as law (or, if you prefer, ‘law’ is as
non-cognitive and non-normative, in the main, as golf.) The purpose here
is to demonstrate the hand-in-glove fit between a practice and any theory
about that practice in most forms of life. In part 3, I comment on a classic,
well-known clash between two legal philosophers, Ronald Dworkin and
Stanley Fish. In their game of GOTCHA!, the former grants theory
primacy across the broad domain of human practices (including baseball),
while the latter decries theory as epiphenomenal in virtually all such
practices. Both are wrong – and wrong in a manner that has clear
consequences for the practice of and theories about law. In part 4, I offer an
account of the relationship between legal theory and legal practice that
better fits the model of theory and practice adumbrated above. In this
chastened account of legal theory, a modest account grounded in our
recognition of the infinite amount about the world we do not know, practice
(and direct engagement with the world) is accorded its proper place. Part 4
draws on the recent empirically-grounded work of Sunstein and Dorf to
suggest how one ought to go about testing the norms that inform our legal
theory, and how such experimentation alters simultaneously both the facts
and norms with which we work – and thus the practice and the theory of law.
2 The natural, the practical and the theoretical
I have a magic Uncle Harry. Just last year, he made a little white ball
disappear. Standing on the 15th tee at the Riverside Golf Course,
approximately 140 metres from the green, Harry hit a solid five iron that
covered the flag. It bounced once, twice, and rolled straight into the cup.
His playing buddies, Irwin and Jake, shouted: ‘It went in!!!! It went in!!!’
9 See S Woolman ‘Law, power and the margin: Eliot’s philosophy of language,
Witgenstein on following on following a rule and statutory construction in Thembekile
Mankayi v Anglogold Ashanti Limited’ (2012) SALJ 341.