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Theory, practice and the legal enterprise 389
2 By way of conclusion: Reflection on the role of
academics
We have sought to argue in this piece that the relation between legal theory
and practice is not captured adequately by the analogy with the role that
theory plays in golf. It is of course true that theory has a role to play in both:
Yet, attending to the particularities of each practice is crucial in capturing its
distinctive role in each. Of key moment in relation to law is its normative
dimension as well as the fact that it involves interpretation. In light of this,
we have contended that there are various layers of theory in law.
Adjudication must necessarily engage some theory: We have argued that
Rawls’s notion of reflective equilibrium provides a better methodology for
capturing the relationship between abstract theory and concrete facts than
Dworkin’s idea of justificatory ascent. As Van Hoecke argues, ‘[r]eality
partly determines theory. Theory partly creates reality. This is a continuous
dialectical interaction without real synthesis: It is an open-ended process.’ 91
With this understanding of theory, what then is the role of legal
academics? We do not believe that this relationship is best captured by the
idea that academics in some ways ‘coach’ judges in the way Sean Foley
coaches Tiger Woods. 92 This understanding suggests a particular
dynamic: The academics are those with deeper insights who are in a
position to instruct judges in how to adjudicate better. The understanding is
hierarchical and uni-directional. There are several problems with this
account. The first is that academics are somehow solely concerned with
the the practice of judging and the outcomes involved. Arguably,
academia itself has its own form of praxis, one that is in fact thoroughly
suffused with theory. Of course, judgments play a crucial role in legal
academia though academics would not necessarily see their role again as
the purely instrumental one of improving judicial adjudication. 93 There
is no doubt that academics can be a form of ‘feedback mechanism’ for
judges. 94 Nevertheless, their role is more complex and would also, for
instance, involve articulating general conceptions of law and its distinctive
methodologies, justice and doctrine that advance the understanding of
multiple actors in society. It could also involve an advocacy role for the
reform of certain positions that both the legislature and judiciary are urged
to take on the basis of sound justification.
91 M van Hoecke Law as communication (2002).
92 Woolman (n 5 above) 365 - 366.
93
The following claim by Woolman (n 5 above) 365 is surely overstated: ‘[W]e have only
one goal: to read the Court’s judgment’s carefully, to reflect back to the Court what we
see and hear, and to make the Court’s judgments better.’ This seems contradicted by
Woolman’s claim (349) that ‘at its best, this knowledge system provides both the
grounds for understanding the world and the conditions for offering new and better
ways of being in the world’. We align ourselves more with the latter understanding of
the role of academia.
94 Woolman (n 5 above) 389.