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368 Chapter 16
of adjudication. 4 The first part of the article discusses the relationship between
theory and practice in golf. The important conclusion of this discussion is
reached when Woolman asserts ‘what is true for golf is true for the law’, 5 as
both are social enterprises that require feedback, ‘coaching’ and improvement
through practice. Woolman then proceeds to engage with the debate
concerning theory in law between Ronald Dworkin and Stanley Fish where
again a sporting analogy surfaces (between law and baseball this time). The
upshot of this discussion appears to be that even in as physical and applied a
sport as baseball, theory and practice are intertwined: ‘Theory and practice fit
hand in glove in sports such as golf and baseball as much as they do in
endeavors such as legal theory and legal adjudication.’ 6 The claim is not
that, whilst actively engaged in ‘playing the game’ one is consciously aware
of theory, but rather that the hours of practice and theorising create
dispositional states that enable a player to improve their performance. The same
is true with law: According to Woolman, theory can help condition the
dispositions that judges have in deciding cases. It is thus indispensable in
helping to improve the judgments that result though it should not be reified
either.
Woolman then moves on to engage with judicial practice in South
African law. He makes several arguments against judicial minimalism,
arguing that even a key proponent of minimalism such as Sunstein appears
in recent work to have had doubts about its usefulness. Judges are ultimately
‘“choice architects”: They frame the environment within which we
citizens operate’. 7 As such, they cannot be neutral in what they do.
‘Understanding one’s environment, testing what works and what doesn’t
work in that environment, putting positive results of one’s experiments into
practice, being a choice architect – now that is a virtue.’ 8
In light of this message, Woolman believes that the appropriate
approach for judges to adopt is an experimentalist one. This involves a
dialogue between different organs of state, participation of affected parties
and a constant openness to changing norms in light of different
circumstances. The key guiding principle for constitutional norms is the
idea of understanding the context and testing what works or does not work
within that context as well as an openness to changing norms ‘when the
exigencies of the moment require such change’. 9
4 The original piece to which this responds has undergone several revisions. We have
sought to adapt our response to the extent possible to the latest draft we have received.
5
S Woolman ‘On the common saying “What’s true in golf is true in law”. The relationship
between theory and practice across forms of life’ in S Woolman & D Bilchitz (eds) Is this
seat taken? Conversations at the Bar, the bench and the academy about the South African
Constitution (2012) 341.
6 Woolman (n 5 above) 354.
7 Woolman (n 5 above) 358.
8
Woolman (n 5 above) 358.
9 Woolman (n 5 above) 362.