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Theory, practice and the legal enterprise 369
In conclusion, Woolman seeks also to capture the role of academics
in constitutional democracy and their relationship to judges and
adjudication. Academics, Woolman contends, provide experience,
expertise and reflection in relation to how the law should work: They are
resources for the court to use. Moreover, they are free from some of the
difficulties faced by the Court and only have one goal: ‘to read the Court’s
judgments carefully, to reflect back to the Court what we see and hear, and
to make the Court’s future judgments better’. 10
Woolman ends his article by making the point that academics can,
through theoretical reflection, help judges to improve their adjudication.
As has been clear from this outline, Woolman’s article engages a wide
range of issues, each of which requires extensive analysis. This reply will
focus only upon certain of his core claims. We are in a large measure of
agreement with Woolman about the importance of theory in law and its
relation to practice; yet, we are of the view that there are several respects in
which his conception of the role of theory in law is ‘under-theorised’. This
reply can thus in some sense be seen as an elaboration of certain of the key
claims in Woolman’s article though we will indicate where we disagree.
First, we shall consider the way in which the notion of theory is used in
Woolman’s piece. This will involve distinguishing between different
notions of theory. As we do so, it will become evident that the role of
theory in golf and law is not equivalent. In searching for a more adequate
account, we are led to engage with Dworkin’s notion of ‘justificatory ascent’
which concerns the relationship between theory and the practice of
adjudication. Two problems with his account lead us to prefer a Rawlsian
understanding of this relationship based upon the notion of ‘reflective
equilibirum’.
Secondly, given our preferred account of the relationship between theory in
law and the practice of adjudication, we support Woolman’s critique of
minimalism as an approach to adjudication. We seek to build on this criticism
by providing a concrete example of how the case law of the South African
Constitutional Court in the area relating to the right of access to courts
demonstrates some of the pitfalls of minimalism. Thirdly, we consider the
tension between Woolman’s advocacy of the importance of theory and his
defence of experimentalism. In particular, it is argued that the pragmatist and
empiricist dimensions of experimentalism as articulated by Woolman fail to
capture one of the central elements of law, namely, its being a normative
enterprise. This entails that experimentalism is fundamentally incomplete as a
methodology and an account of the relationship between theory and the practice
of adjudication. Finally, we shall argue that the account of the relationship
between legal academics and the judiciary offered by Woolman can be
improved upon. We shall contend that the relationship should be conceived as
10 Woolman (n 5 above) 365.