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Theory, practice and the legal enterprise 371
correctly diagnose the problem in his swing’. 12 Reflection about one’s
swing could help a player recognise the problems with it and, through
conscious practice, ultimately help improve the swing. Initially, golfers may
be led to certain ad hoc insights concerning the difficulties with certain bad
swings and the characteristics of good swings. Over time, such reflection
could lead to certain general principles being formed as to what constitutes
a decent swing. The systematic development of general principles from the
experience of golfers could lead to the development of a ‘theory of the good
swing’. 13 This in turn could help those who are learning to play golf to
develop a decent swing.
Having understood the notion of how a theory could be developed in
golf, the question arises whether the role of theory (in the sense indicated) is
the same as its role in adjudicating legal cases. Whilst there may appear to
be a surface similarity that Woolman has highlighted in his article, our
view is that the relationship on deeper analysis is distinct. The key
difference in our view is that, in golf, the role of theory (in the sense of
‘thinking about’) appears to be largely instrumental. Ultimately, the goal is to
play the game in the best way possible: This largely involves ensuring that
the golfer who stands at a set distance from holes in the ground succeeds in
guiding small white balls into those holes in the least number of attempts.
Since the practice is established, there is very little to reflect about in relation
to the rules themselves, although some small revisions may be made from
time to time. ‘A theory of the good swing’, if it exists, would largely be
designed around assisting participants in this practice to improve their skill
at playing the game which is defined in terms of a set of generally pre-existing
rules.
The role of reflective theory in adjudication is different. Its purpose is not
simply to improve a pre-existing practice: In large measure, theory – and in
particular normative reasoning – constitutes the very practice itself and is
intrinsic to its existence. Law is theory-laden in a manner that golf simply is
not. We shall provide four arguments to support this claim. First, of crucial
importance is the recognition that law is thoroughly normative in a manner
that golf is not. 14 Law imposes certain obligations upon individuals and
adjudication would have certain real consequences for parties before a court.
For individuals to recognise the legitimacy of such obligations and
outcomes, there must be a justification for why they are imposed. That
justification would immediately require some theoretical underpinning. If
the law is imposed by a judge and lacks any justification, then this would
amount to coercion with no grounding. Hart has famously described a
12 Woolman (n 5 above) fn 10.
13 R Posner ‘Conceptions of legal “theory”: A response to Ronald Dworkin’ (1997) Arizona
State LJ 377 379 recognises that ‘[s]ome degree of generality or abstraction, and an
insistence on consistency, are the bedrock requirements of “theory”’.
14 Austin’s theory of law would famously contend that law is not normative: Yet, it is
commonly held to fail dismally on this account. For a famous and damaging critique,
see HLA Hart The concept of law (1997) 18 - 26.