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Theory, practice and the legal enterprise 379
to adjudication. 49 In his article, Currie draws on the work of Cass Sunstein
who has defended a minimalist practice recognising the virtues of
‘incompletely theorised agreements’. 50 The insight is that people may be
able to agree on particular decisions without being able to agree on a
broader or abstract theory. ‘It is important because it is a way of promoting
stability, reducing strains on time and capacities, and demonstrating mutual
respect: it is not very respectful to take on other people’s most fundamental
commitments when it is not necessary to do so’. 51 Sunstein attempts to
sidestep any reference to more abstract principles by stipulating an
interpretive methodology based largely on the use of analogy, which he
claims would not require very abstract thinking.
However, Dworkin has pointed out the error in this method of proceeding:
there can be no comparison without reference to an external point. Thus, for
instance, and in spite of the popular proverb, one can in fact compare apples and
pears provided one chooses an appropriate point of reference such as colour,
taste or nutritional value. 52
What forms an appropriate external point of reference, of course, then
depends on a broader theory of the purposes of the comparison. 53 Woolman
points out that while Sunstein shows significant ambivalence towards theorising
in judgments, he is forced to concede the inevitable importance of abstract
principles in adjudication. 54 In our view, Roederer has correctly argued that,
at the end of day, the difference between Dworkin and Sunstein is one of
attitude. 55 Dworkin ultimately accepts that conceptual ascent may be limited to
those instances where it is necessary. 56 Similarly, Sunstein accepts the necessity
of a degree of theory and has toned down his views on minimalism to become
a ‘presumption, or a mood and not a rule’. 57
We have argued in the last section that there are layers of theory in the
law. Judicial practice involves moving backwards and forwards between
these different layers to arrive at a justifiable decision in the circumstances of
a particular case. By eschewing abstract theory, a minimalist procedure
removes judges from considering some of the necessary elements involved in
49 Currie (n 2 above).
50 See, eg, C Sunstein One case at a time (1996); C Sunstein ‘Incompletely theorised
agreements in constitutional law’ John M Olin Working Paper no 322 available at
http://www.law.uchicago.edu/ lawecon/index.html (accessed 20 September 2010);
C Sunstein ‘From theory to practice’ (n 23 above) 389.
51
Sunstein ‘Incompletely theorised agreements’ (n 48 above) 392.
52 Dworkin elaborates upon in this in Justice in robes (n 1 above) 69.
53 Sunstein apparently accepts this in ‘Incompletely theorised agreements’ (n 48 above)
17 - 18.
54 Woolman (n 5 above) 357 - 358. Sunstein admits in ‘Incompletely theorised
agreements’ (n 48) that ‘any assessment of facts is theory-laden: As Dworkin rightly
stresses, we do not know what and how facts count unless we have a “normative
account”’ (396).
55 Roederer (n 2 above) 510 - 512.
56
Dworkin (n 20 above) 376.
57 Sunstein ‘From theory to practice’ (n 23 above) 402.