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354 Chapter 15
naturally (and here we both mean without immediate conscious
deliberation) when one has to bat in a live game.
What unifies this discussion of such different ‘forms of life’ as golf,
baseball and the law is the interest that Dworkin, Fish and I have in the
relationship between theory and practice in most (if not all) social practices,
and what bearing our respective conclusions have for the role of legal theory
in legal adjudication. Needless to say, whereas Dworkin appears to contend
that theory is everywhere and everything in baseball as in law, Fish does his
best to demonstrate that theory – in baseball or law – is of marginal concern
because it has such a marginal effect in these social practices. Neither
reification of theory nor its rejection truly explains what goes on in virtually
all sophisticated social practices. As I have been at pains to point out,
theory and practice fit hand in glove in sports such as golf and baseball, as
much as they do in ostensibly more reflective endeavours such as legal
theory and legal adjudication.
Why should one prefer my view of matters – and reject the conclusions
to be found in Dworkin’s and Fish’s game of GOTCHA? On my account,
conscious theorising is actually a product of a neurological system and
social endowments that have a three-fold purpose: (a) ‘durable and explicit
information maintenance’; (b) ‘novel combinations of operations’; and (c)
‘intentional behaviour’. In more common parlance, (a), (b) and (c) describe
(1) memory; (2) thought experiments based upon prior experience; and (3)
actions designed (subsequent to thought experiments or theoretical
analysis) to realise optimal outcomes (both descriptive and prescriptive.)
That is, as Dennett argues, our conscious beliefs, about law, baseball or golf,
function as ‘idealised fictions’ that enable us to engage – in advance – in a
sophisticated ‘action-predicting, action-explaining calculus’. 31
That does not mean that theory and practice operate in identical manners
in all three social practices. My aim is quite modest: It is to ‘press’ practitioners
and judges to take greater cognisance of ‘theory’ in their work by
demonstrating just how much work constant theorising does in sports. (If you
had watched a pained New York Yankees manager Joe Girardi walk out of
the stadium in October 2010 holding two thick binders full of statistics about past
performances and future probabilities – having just made an errant set of
decisions (based on the books) that may have cost the Yankees the American
League Championship – then you might better understand the degree to which
theory plays a major role in what many wrongly view as non-cognitive practices.)
At the same time, I mean to press the less spectacular proposition on my South
African academic colleagues who work constitutional law that they really operate
at the periphery of practice and that ‘the illusion’ of theory’s power is primarily a
function of the sometimes genuine, and sometimes merely apparent,
underdevelopment of this body of law in South Africa. (Advice: Play for
31 D Dennett Brainstorms (1978) 30. See also D Dennett Freedom evolves (2003).