Most theories are useless but without a theory your work is useless. Without theoretical grounding what you execute successfully happens more by chance than by choice. This doesn’t mean you need to verbally articulate the theory you work from. Most practitioners proceed intuitively on this front through trial and error; most theoreticians don’t actually practice. If you ask a practitioner to explain why they made particular choices or what they think about parts of their practice you’ll often get the implicit theory they use to background their choices. Even with the anti-intellectual set, like most plaintiffs’ lawyers. Ask a theoretician what they ground their theory in and you’ll usually be told research and not practice.
One of the reasons H.L.A. Hart’s The Concept of Law is the seminal work of 20th Century legal theory is that Hart was a successful trial lawyer for eight years before he became a legal philosopher. When I read Hart I nod my head a lot because it’s written by someone who’s been in the fight, not someone who’s just looking at it without even seeing the entirety. Reading legal theoreticians who haven’t been in a courtroom usually gives me a headache.
Previous legal practice doesn’t validate a legal theory, but it does inform it and increase its utility. That utility comes from gaining a clear perspective on how things actually function in the space you’re operating in. In the case of law, this is a rule-based social construct. Understanding the construct is the key to dealing with the construct.
Cutting it short this morning because it’s time to practice.