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David
CHAPTER
THEORY, PRACTICE AND
THE LEGAL ENTERPRISE:
A REPLY TO
STU WOOLMAN
Bilchitz* and Juha Tuovinen**
1 Introduction
We face a revolt from theory, in law and across the rest of the intellectual landscape. 1
The role of theory in law is a topic that has generated much heated debate,
particularly in the United States. In South Africa, this debate has largely
taken the form of academic exchanges concerning the virtues of judicial
minimalism: This involves the idea that in adjudicating cases, judges should
confine themselves to providing reasons that are narrowly tailored to the
facts before them and are not to go beyond what is necessary to justify that
decision. 2 This debate has taken place in the context of criticisms that have
been lodged against the Constitutional Court for avoiding giving content to
fundamental rights and its failure to provide more detailed and deeper
justifications for its decisions. 3
In the article titled ‘On the common saying “What’s true in golf is true in
law”: The relationship between theory and practice across forms of life’,
Woolman attempts to capture the relationship between theory and the practice
* Associate Professor, University of Johannesburg and Director, South African Institute for
Advanced Constitutional, Public, Human Rights and International Law (SAIFAC, a
Centre of the University of Johannesburg).
** Researcher, SAIFAC, a Centre of the University of Johannesburg.
1 R Dworkin Justice in robes (2006) 72.
2 Of course, what is necessary to justify a particular decision is itself contentious and
will be the subject of discussion later in this piece. Currie leaves this point undecided,
stating that he ‘[has] not had an opportunity to explore in any depth the pragmatic and
political virtues of minimalism’ I Currie ‘Judicious avoidance’ (1999) SAJHR 138 165;
see also C Roederer ‘Judicious engagement: Theory, attitude and community’ (1999)
SAJHR 486.
3 See, eg, A Cockrell ‘Rainbow jurisprudence’ (1996) SAJHR 13; D Bilchitz Poverty and
fundamental rights (2007); S Woolman ‘The amazing, vanishing bill of rights’ (2007)
SALJ 762.
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