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378 Chapter 16
Though Rawls sought to apply this method to the realm of political
philosophy, in our view, it also seems peculiarly apposite to law. Indeed,
we contend that it provides a better account than the notion of ‘justificatory
ascent’ of the relation between abstract theory and the concrete practice of
adjudication. Ultimately, legal theory and doctrine help develop the
approach that should be adopted in concrete judgments, and concrete
judgments help test whether the legal theory or principles we hold are the
correct ones. This idea does not create an interminable regress to greater
levels of abstract theory for it is about obtaining a ‘fit’ between abstract
theory and concrete judgments. Moreover, it recognises the non-linear
nature of legal justification which is about a backward and forward
movement between the abstract and the concrete and a web of interlocking,
supporting considerations. 44
This account also helps explain why theory and practice in law are
inevitably intertwined. And why an attempt to eschew one or the other in
adjudication will be unsound. 45 In the next section, we look at the notion of
minimalism which attempts largely to reduce the role of theory in
adjudication. Our abstract discussion thus far supports Woolman’s critique of
minimalism which we bolster with a consideration of a set of concrete cases as
well.
Part 2: Minimalism
Minimalism has been formulated in a rather extreme way by the South
African Constitutional Court in the case of Zantsi v Council of State, Ciskei. In
this case, the Court stated that judges should never ‘formulate a rule broader
than is required by the precise facts to which it is to be applied’. 46 This
statement is, however, clearly too strong and in fact incoherent in that a rule
must always necessarily be broader than the actual situation out of which it
arises. 47 Nevertheless, what is evident is the Court’s desire to avoid general
theoretical engagement. This approach led to certain early critiques of the
Court as having provided South Africa with a vague and rather superficial
‘rainbow jurisprudence’. 48
Currie wrote a defence of the Constitutional Court’s method of
proceeding which essentially involved defending a minimalist approach
44
In epistemological terminology, this is more of a coherence than a foundationalist
theory. For an impressive defence of a coherence theory of justification in epistemology,
see BonJour The structure of empirical knowledge (1988).
45
It should also be evident that our approach neither reifies theory nor requires a ‘theory
of everything’ and thus is not subject to the critique entered into by Woolman against
theorists who he claims in his introduction make these mistakes.
46
Zantsi v Council of State, Ciskei 1995 4 SA 615 para 8.
47 A rule usually has general application and its application is not confined to particular
persons at particular points of time. The rule of law would be impossible without such a
conception of a legal rule or principle.
48 Cockrell (n 5 above).