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The relationship between theory and practice across forms of life 351
(g) Fish concludes: ‘Now it may be that when Dworkin speaks of the
theoretical component of practice he is referring to nothing more than the
habits of being alert and paying attention ... But somehow I don’t think so, for
in every formulation that seems to bring us closer together there is something
that reopens a gap.’ 24
(h) Dworkin: ‘[A good judge] ... will naturally see that he must be, in Fish’s
terms, a theoretician as well, and in virtue of, occupying his role as a
participant.’ 25
Fish so abhors theory that Dworkin’s last parry is rejected out of hand and to
a great extent leaves us no closer to understanding the relationship between
legal theory (Dworkin) and legal practice (Fish). But that is Fish’s problem
– and a function of his errors regarding the relationship between theory
and practice in baseball. What do I mean?
No sport of which I know draws as heavily on statistics as baseball. And I
am not just referring as a start to those stats to which the reading public has
access. 26
Over 30 games of spring training, 162 games in the season, almost 20
in the playoffs (210 games for a championship team in a single eightmonth
season!), a team gathers an almost indigestible amount of
information about their own team and, as importantly, the other teams that
they play. They learn everything from pitchers’ strong suits, preferences
and abilities to batters’ tendencies and weaknesses. This highly accurate
data is generated by computers that reflect hot spots and cold spots in the
batter’s strike-zone (in the past, players and coaches kept notebooks), where
balls are hit, where the location of a pitcher’s pitches are, as well as where
hitters like their pitchers to be (more hot spots in red, cold spots in blue). The
enormous amount of data is collated and reviewed – film is watched and the
24 Fish (n 20 above) 230.
25 Dworkin (n 19 above) 382.
26
American football relies heavily on stats, but even more heavily on film that is not
accessible to the public. Players spend hours watching film in preparation for the week’s
game. The 2010 National Football League Championship turned on a play that can be
directly traced to the intensive study of film. The Indianapolis Colts, led by Peyton
Manning (this generation’s greatest quarterback), demonstrated a tendency, picked up
by New Orleans Saints safety, Darren Sharper, to run a specific play when they lined
up in a particular formation before the snap of the ball. With Dallas Clark in the slot,
and Reggie Wayne inside him, chances were high that Manning would throw the ball to
Wayne. Sharper recognised the play taking shape before him as the Colts move to the
line of scrimmage late in the final quarter. Manning dropped back to pass. Wayne ran
the expected short crossing route. But instead of a complete pass, Sharper anticipated
the destination and the timing of Manning’s throw perfectly, stepped in front of Wayne,
intercepted the pass and ran the interception back for a touchdown that, effectively,
decided the Super Bowl. That’s sports! For the uninitiated, it might be hard to tell the
extent to which a theory played a critical role in the outcome. But it was Sharper’s
theoretical understanding of how the Indianapolis Colts operated – until that point in
time – that enabled him to make the appropriate move when it came time to put theory
into practice. Pace Bilchitz and Tuovinen, Sharper’s response was neither noncognitive
nor merely habitual. He had enough time to survey the Colt’s alignment and
make a well-informed hypothesis. His hypothesis proved to be true.