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The relationship between theory and practice across forms of life 349
Africa’s constitutional order. At a minimum, the legal academy points up
logical or empirical flaws. At its best, this knowledge system provides both the
grounds for understanding the (legal) world and the conditions for offering
new and better ways of being in that world. 16 Finally, law is just one of the
many social practices that govern our life shot through with normativity. 17
3.2 Problems with playing ‘GOTCHA!’: Dworkinian
maximalism v Fishian anti-foundationalism
In one of his many tiffs with Ronald Dworkin on the relationship between
legal theory and legal practice, Stanley Fish found himself caught up in a
side-bar about the relationship between theory and practice in baseball. 18
(And for our purposes baseball will serve quite well as a stand-in for the
relationship between theory and practice in golf (and thus law).)
After conceding Dworkin’s point that ‘explanation and performance
skills’ are closer in some practices than others – and that indeed judging
may be one of those practices – Fish makes an error in playing ‘gotcha’
with Dworkin over the place of ‘theory’ in baseball. It is an error in large part
because Fish had already struck out Dworkin by demonstrating that
theorising in judgments is largely a rhetorical strategy designed to make the
findings and the holdings of a case more compelling. Score it as ‘strikeout +
wild pitch’. But it allowed Dworkin to advance to first base when he should
have gone back to the bench.
Fish catches out – or so he thinks – Dworkin’s limited understanding
of the relationship between baseball theory and baseball practice in the
following set of quotations, a dialogue that Fish largely constructs and that I
redact and comment upon. I set out the ‘conversation’ so that readers
themselves might follow this fight between two heavyweights and the
opposing positions that they set out:
16
I have made this connection clear elsewhere:
‘Our mission [as academics] then is to step back and suggest how a body of law
hangs together – or if it does not cohere, then to explain why it falls apart. In
both instances – the good faith reconstruction, on the one hand, the preferred
reading on the other – we offer judges and lawyers the intellectual scaffolding
upon which to better – a more just – legal system ... Those of us who work in the
guild of academic law-masons – whether academics, jurists, practitioners and
students – cannot for a moment sit idly back and assume that the Constitution
and all our lovely political institutions provide an answer for the depredations
of apartheid or the desolations of the current political order ... Every act in
everyday South African life ... possesses an unavoidable moral salience. Or
rather, we avoid that moral salience – and the sacrifices those acts entail – at the
peril of our souls’.
S Woolman ‘The South African Constitution as the last great modernist project’ in
S Woolman & M Bishop Constitutional conversations (2008) 25 27 32.
17 My friends David and Joha accord law a special place in the norm governed worlds we
inhabit that it simply does not deserve.
18
S Fish ‘The jurisprudence of Richard Posner, Richard Rorty and Ronald Dworkin’ in
There’s no such thing as free speech, and it’s a good thing too! (1994) 200 225 - 230.