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370 Chapter 16
a mutually reinforcing one with each playing a crucial role in achieving a
desirable reflective equilibrium between the demands of theory and the
exigencies of adjudication.
Part 1: The many faces of theory
At the centre of Woolman’s article is an analogy between the role of theory
in golf and in law. The analogy is intriguing and it is worth questioning
whether it is in fact apposite. Our approach to doing so will involve first
engaging with the question as to what in fact is ‘theory’. Through clarifying
this idea, it is hoped that it will be possible to capture more adequately the
role of theory in law.
Theory is a word that can have a number of senses. To clarify its usage
in the context of this paper, it is useful to begin with those senses which may
be less apposite. The first relevant meaning of theory is the notion of a
‘conceptual scheme’ being involved in the performance of a particular
action. This notion does not involve the idea that the individual in question
is necessarily self-aware of that conceptual scheme. In this sense, all human
activity – whether it be golf or law – is in some sense laden with theory. This
notion has been important in the history of philosophy where it has been
recognised that even the seemingly simple act of perceiving the world
through sense experience involves the application of a conceptual scheme
to the world. 11 Some forms of activity engage more complex cognitive
processes and schemes. In his article, Woolman discusses his uncle’s
intuitive ability to play golf. In hitting the ball, the uncle is engaging several
mental processes that are consciously involved in taking a swing. We can
refer to this as ‘thinking in’ a practice. All conscious animals, to a greater or
lesser degree, will be engaged with ‘thinking in’ practices they perform and
applying conceptual schemes to them. Thus, we agree with Woolman that
the practice of golf is in some sense ‘cognitive’. This sense of theory is itself
unhelpful (and possibly trivial) in the current context as it does not assist us to
capture the particular role of theory in adjudication as opposed to its role in
such basic activities as sensory perception of the world.
The second sense of theory that appears more relevant is not simply the
idea of conscious mental activity which involves the application of conceptual
schemes, but the idea of self-conscious conceptual schemes. This idea can be
captured by the notion of ‘thinking about’ and involves centrally the idea of
reflecting about our thought processes or practices and developing
conceptual schemes from that reflection. Woolman seems centrally
concerned with this idea of theory as a ‘conscious critical practice’, and
in his quote referring to Haney’s concern that ‘the average golfer doesn’t
11 This is a key insight of I Kant A critique of pure reason (1781) and has been the subject of
much philosophical reflection in current philosophy. See, eg, J Dancy (ed) Perceptual
knowledge (1988).