Download this publication - PULP

374 Chapter 16
abstract theories in their judgments. Prominent critics of this view include
Posner who is against the development of such overarching theories: law in
his view is essentially a practical enterprise aimed at making the best decision
in particular circumstances and requires rather an orientation towards
ensuring the best consequences overall for a decision. 21 Here it is quite clear
that Posner assumes a particular theory as to how judges should go about
deciding cases (a point he admits). 22 The claim, however, by such critics is
not that theory can be eliminated from law but rather that it should be
minimised and kept at the ‘lowest’ level of abstraction. 23 The problem with
this view is that it is difficult to see why theory should be confined to the
‘lowest’ level of abstraction and what this prescription actually means.
Indeed, failing to engage abstractly with theory may simply mean that judges
are less aware of the shortcomings of any particular approach they adopt.
Higher levels of abstract thinking may in fact improve the performance of
judges in relation to concrete cases. It is thus unclear how one can defend a
practice that generally seeks to avoid further abstract philosophical reflection,
even where this may improve the the quality of decisions.
This criticism requires us to recognise different types of theories that
exist in relation to the law. 24 First, there are theories about the law, for
example, theories about what the nature of law consists in, such as positivism,
and natural law. These theories aim to explain the nature of law and may
deepen a judge’s understanding of what she is doing. They are not though
necessarily required for reaching a particular result in a concrete case.
Secondly, there are a whole host of moral, political, social, metaphysical and
epistemological theories that underlie and shape the law. These theories are
‘embedded’ in the law 25 and they give the legal system its shape and content.
This group contains both grand over-arching theories of, for example, the
purpose and functioning of a state as well as more specific theories about
more particular issues such as the justification for the existence of a particular
right. Finally, theory also involves the notion of legal doctrine where
academics or judges, for instance, draw out general principles from specific
cases. Doctrine can involve specific theoretical underpinnings of principles
and/or even a collection of those very principles that systematise a particular
area of the law.
The law itself thus is connected to theory in different ways and at different
levels of abstraction. This idea may be captured by recognising different
21
Posner has advanced his judicial philosophy in a number of monographs, most
recently and comprehensively in How judges think (2008).
22 See Posner (n 13 above) 377.
23
A similar point is made in C Sunstein ‘From theory to practice’ (1997) Arizona State LJ 389
24
391 - 395.
We do not deny there may be other forms of theory, yet, we attempt to categorise the
25
forms of theory most in evidence in the law.
Dworkin (n 20 above) 355 - 357.