Theory, practice and the legal enterprise

• Author: David Bilchitz,Juha Tuovinen
• DOI: 10.10520/EJC153230
• Published date: 01 January 2010
• Date: 01 January 2010
• Pages: 544-566

Theory, practice and the legal enterprise

David Bilchitz

*

and Juha Tuovinen

**

Introduction

We face a revolt from theory, in law and across the rest of the intellectual landscape.

1

The role of theory in law is a topic that has generated much heated debate,

particularly in the United States. In South Africa, this debate has largely taken the

form of academic exchanges concerning the virtues of judicial minimalism: this

involves the idea that in adjudicating cases, judges should confine themselves to

providing reasons that are narrowly tailored to the facts before them and are not

to go beyond what is necessary to justify that decision.

2

This debate has taken

place in the context of criticisms that have been lodged against the Constitutional

Court for avoiding giving content to fundamental rights and its failure to provide

more detailed and deeper justifications for its decisions.

3

In the article titled ‘On the common saying “What’s true in golf is true in law”: The

relationship between theory and practice across forms of life’, Stu Woolman attempts

to capture the relationship between theory and the practice of adjudication.

4

The first

part of the article discusses the relationship between theory and practice in golf. The

important conclusion of this discussion is reached when Woolman asserts ‘what is

*

Associate Professor, University of Johannesburg and Director, South African Institute for Advanced

Constitutional, Public, Human Rights and International Law (SAIFAC, a Centre of the University of

Johannesburg).

**

Researcher, SAIFAC, a Centre of the University of Johannesburg.

1

Dworkin Justice in robes (2006) 72.

2

Of course, what is necessary to justify a particular decision is itself contentious and will be the

subject of discussion later in this piece. Currie leaves this point undecided, stating that he ‘[has] not

had an opportunity to explore in any depth the pragmatic and political virtues of minimalism’ Currie

‘Judicious avoidance’ (1999) SAJHR 138, 165; see also Roederer ‘Judicious engagement: Theory,

attitude and community’ (1999) SAJHR 486.

3

See, for instance, Cockrell ‘Rainbow jurisprudence’ (1996) SAJHR 13; Bilchitz Poverty and

fundamental rights (2007); Woolman ‘The amazing, vanishing bill of rights’ (2007) SALJ 762.

4

The original piece to which this responds has undergone several revisions. We have sought to

adapt our response to the extent possible to the latest draft we have received.

Theory, practice and the legal enterprise 545

true for golf is true for the law’,

5

as both are social enterprises that require feedback,

‘coaching’ and improvement through practice. Woolman then proceeds to engage

with the debate concerning theory in law between Ronald Dworkin and Stanley Fish

where again a sporting analogy surfaces (between law and baseball this time). The

upshot of this discussion appears to be that even in as physical and applied a sport

as baseball, theory and practice are intertwined: ‘theory and practice fit hand in glove

in sports such as golf and baseball as much as they do in endeavors such as legal

theory and legal adjudication’.

6

The claim is not that, whilst actively engaged in

‘playing the game’ one is consciously aware of theory, but rather that the hours of

practice and theorising create dispositional states that enable a player to improve their

performance. The same is true with law: according to Woolman, theory can help

condition the dispositions that judges have in deciding cases. It is thus indispensable

in helping to improve the judgments that result though it should not be reified either.

Woolman then moves on to engage with judicial practice in South African

law. He makes several arguments against judicial minimalism, arguing that even

a key proponent of minimalism such as Cass Sunstein appears in recent work to

have had doubts about its usefulness. Judges are ultimately ‘“choice architects”:

they frame the environment within which we citizens operate’.

7

As such, they

cannot be neutral in what they do. ‘Understanding one’s environment, testing what

works and what doesn’t work in that environment, putting positive results of one’s

experiments into practice, being a choice architect – now that is a virtue’.

8

In light of this message, Woolman believes that the appropriate approach for

judges to adopt is an experimentalist one. This involves a dialogue between

different organs of state, participation of affected parties and a constant openness

to changing norms in light of different circumstances. The key guiding principle for

constitutional norms is the idea of understanding the context and testing what

works or does not work within that context as well as an openness to changing

norms ‘when the exigencies of the moment require such change’.

9

In conclusion, Woolman seeks also to capture the role of academics in

constitutional democracy and their relationship to judges and adjudication.

Academics, Woolman contends, provide experience, expertise and reflection in

relation to how the law should work: they are resources for the court to use.

Moreover, they are free from some of the difficulties faced by the Court and only

have one goal: ‘to read the Court’s judgments carefully, to reflect back to the

Court what we see and hear, and to make the Court’s future judgments better’.

10

5

Woolman ‘On the common saying “What’s true in golf is true in law” The relationship between theory

and practice across forms of life’ (2010) 25/2 SAPL 520.

6

Id 532.

7

Id 537.

8

Id 536.

9

Id 540.

10

Id 543.