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Theory, practice and the legal enterprise 387
what to do with their bodies. For those who are pro-life, it would involve
protecting the fetus. If we use another metric to measure what works such
as ‘social tension’ surrounding the issue, the responses again would differ. If
social tension is reduced by allowing individuals the choice to have an
abortion, pro-choice supporters would see this as a sign of the success of their
view. Pro-lifers would take the contrary view and see that very success in
reducing social tension as a sign of the moral decay of our society. How
then can what works provide a reliable guide to making decisions for judges?
Ultimately, the pragmatic standard fails to provide any guidance without
some prior theoretical understanding of how we measure ‘what works’.
That in itself requires deep moral reflection. 87
Moreover, the notion of ‘what works’ cannot be replaced by the idea
of experimentalism either. For our experiments with law and ways of life
need to be judged according to certain evaluative criteria. Those criteria,
whilst involving an openness to change, cannot be made sense of through
the notion of change or experimentation itself. Experiments in racial
discrimination or forms of genocide are abhorrent. An experimental
approach can only be judged as valuable if it leads to the normative world
of justice that we believe to be valuable. Thus, experimentalism cannot
provide a viable alternative to minimalism, for it is itself purely
instrumental in nature.
The mistake Woolman makes with experimentalism is akin to the
mistake he makes in his analogy between the law and golf. Theory in law
is not simply a better way to improve a pre-determined outcome: It is
about defining the very outcomes themselves and elaborating upon the very
normative objectives of the legal enterprise. It is about interpreting texts. In
doing so, we cannot be satisfied with purely instrumental methodologies
that fail to grapple with the particularities of end-setting and interpretation
itself.
Woolman could respond that he has explicitly stated that his focus on
experimentalism is not meant to suggest that ‘all of the normative
commitments in South Africa’s basic law – or the US Constitution – are up for
grabs. Were the South African Constitution to set no clear normative floor, then
we would not have binding constitutional law, and our Constitution would be
no more than a trifle.’ 88 Despite this admission, Woolman does not reflect any
further about what this concession means for the role of theory in law.
Moreover, he does not seem to recognise that it fundamentally requires a
different methodology: in the very next paragraph, he refers approvingly to
Sunstein having become an empirical constitutionalist ‘when it comes to
building better theories about the normative content of a country’s basic
law’. 89 This leaves open the question – which we have sought to emphasise –
87 As above.
88
Dworkin (n 1 above) 21.
89 Dworkin (n 1 above) 21.