Abstract
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When we think about practice in law, we tend to mean something quite
specific - the methods by which we 'do' law, practically. The day-to-day nuts
and bolts of getting legal work done, following procedural rules, reading and
interpreting cases and legislation, as well as appearing in court and all of its
associated paraphernalia, argumentation, and theatrical presence. The kinds
of practices to be explored in this chapter are also intimately connected to the
practice of law, 1 but not because we are consciously aware of their existence -
we may have no idea how much they influence and help us 'do' or carry out
our work as lawyers. In this chapter, we want to consider these practices in two
ways. The first explores how legal theory is used in law, to establish the ground
rules or frameworks that guide the reasoning of the courts and to crack open
boilerplate precedent, where the law goes against you, and where the law clings
to old and outdated ideas. This chapter is designed to help find when legal theory
has been incorporated into judgments and the texts oflaw. 2 We will tease out the
remnant strands of the DNA of legal theory located deep within the doctrines
and principles of the law. We will find that it is often so deeply hidden that it is
assumed to be part of the law itself- ie, that no trace of the theory can be seen,
and all that remains are rules and principles. We will find out how we can trace
this lost DNA through the cases. We also call this the 'hidden' or 'secret' language
of the law, because unless we know what a legal theory says, we will never know
when the judges are using theoretical concepts to frame their reasoning, or when
counsel uses theory to construct an argument in a novel case .