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Theory, practice and the legal enterprise 373
golf: Indeed, it cannot be said that the very goal of playing golf is achieving
normative ends such as ‘fairness’. Moreover, practices such as golf may
actually need to draw on concepts of fairness that have been articulated in
disciplines such as law. For, in law, normative concepts such as fairness, justice
and stability are the very ends of the practice itself whose content must be
developed in the process of adjudication. Consequently, law is more thoroughly
suffused with normative theoretical elements than practices such as golf since
these ethical concepts ultimately are a fundamental goal of the practice itself.
Thirdly, law is fundamentally an enterprise that takes place through the
use of language. Practices centrally involving language are different to those
that do not involve language. We may reflect upon such practices as eating,
drinking and golf in language yet whilst we are engaging in the practice,
language is not centrally involved. This means that, to employ the distinction
developed earlier, we need not ‘think about’ the practice whilst we are
‘thinking in’ the practice. We need not necessarily reflect about these
practices at all to perform them (though such reflection may help us).
Indeed, Woolman recognises that ‘thinking about’ golf or baseball whilst
playing the game may in fact hinder one’s performance. 19 It is difficult to see
how this could be the case in relation to a practice such as legal adjudication.
Practices that take place in the realm of language such as interpreting literature
and law necessarily seem to involve a higher level of abstract thinking.
Moreover, it appears difficult to understand how one could engage in the
practice of adjudication without ‘thinking about’ what one is doing. To avoid
doing so, would involve failing to perform the practice adequately and
appear to involve deciding arbitrarily. Adjudication thus necessarily involves
conscious, abstract, and reflective thinking.
Finally, the particular practice of adjudication would usually involve
the application and interpretation of past precedents, statutes and the
Constitution. It also fundamentally involves the application of rules and
principles. All these elements involve questions of interpretation which
would at least require judges to have some idea of the approach they adopt
in this regard. Furthermore, the decision as to which principles or rules
apply and their application to particular facts will inevitably involve
reflection and the development of some form of theory. Theory is thus
irremediably bolted into the very structure of law itself in a way that is not
true for golf. In Dworkin’s words, the law is ‘drenched in theory’. 20
Opponents of ‘theory in law’ would claim that they are concerned with a
distinct notion of theory from what we have articulated above. These critics are
preoccupied with the idea that adjudication does not require the development
of grand philosophical schemes in order properly to justify the decisions that
result. The concern particularly seems to be about judges developing highly
19 Woolman (n 5 above) 353 - 354.
20
R Dworkin ‘In praise of theory’ (1997) Arizona State LJ 353. The article, originally given
as a lecture, is also reproduced as ch 2 of Justice in robes (n 1 above).