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376 Chapter 16
then, judges would need clear reasons for why following such a rule (or
precedent) is important in a particular case and what the very value of
consistency in law is. The point is that if we conceive of the relation between
the concrete and the abstract in adjudication in a linear way, it is difficult to
see how to avoid a continual push to ascend the theory ladder in every
particular case. That would be undesirable, and possibly paralysing for a
legal system that requires speedy decision making.
Secondly, in his articulation of the relation between theory and
practice Dworkin constructs an opposition between two ways of
proceedings. The first is that of Hercules: reasoning from the outside-in,
from abstract theory to the concrete case before a judge. The second is that
of ‘ordinary people, lawyers and judges’ who reason from the inside-out:
‘We begin with discrete problems forced upon us by occupation or
responsibility or chance, and the scope of our inquiry is severely limited,
not only by the time we have available, but by the arguments we happen
actually to encounter or imagine.’ 30 The ways of proceeding are either from
the abstract to the concrete or from the concrete outwards. Yet, it seems to
us a better account of adjudication would be of an inter-relationship between
both methods of proceeding. Adjudication involves a backward and
forward process between different levels of abstract theory and concrete
facts. 31
In his recent book, Justice Albie Sachs gives us a glimpse at the decisionmaking
process of a conscientious Constitutional Court judge. 32 Sachs
provocatively begins his chapter on the ‘working of a judicial mind’ with the
claim that ‘every judgment I write is a lie’. 33 By this, Sachs means that a
judgment appears on its face to be logical, coherent, ‘orderly, clear,
sequential’. 34 It seems to move clearly from legal principle to concrete
application in relation to the particular facts. Yet, this appearance belies the
process that led to its creation which is much more chaotic:
‘the actual journey of a judgment starts with the most tentative exploratory ideas,
and passes through large swathes of doubt and contestation before finally ending
up as a confident exposition purportedly excluding any possibility of
error.’ 35 Sachs proceeds to contend that ‘as we wrestle with a problem, we go toand-fro,
backwards and forward, from logic to discovery, from discovery to
logic’. 36
This account of judicial decision making suggests that the process of arriving
at a decision is not linear in the way Dworkin suggests. The concrete
30
Dworkin (n 20 above) 54.
31 Sunstein (n 23 above) 392 admits that conceptual ascends may happen but also stresses
the fact that ‘[c]onceptual or justificatory descents may well work best’.
32
A Sachs Strange alchemy of life and law (2009).
33 As above.
34 Sachs (n 32 above) 47.
35
Sachs (n 32 above) 48.
36 Sachs (n 32 above) 54.