1. Introduction

1.1 What is Theory?

Theory is a practice of thinking.

It is directed toward uncovering how we understand and account for our engagements with the world — our world view. These engagements depend on the ideas, stories and values we use to represent the world to ourselves, both individually and collectively. These representations are shaped by the variables that define human experience and perspective, including culture, language, location and historical context.

Theory is the practice of reflecting on our ideas and stories: ‘Theory is thinking about thinking, [an] enquiry into the categories we use to make sense of things.’^[1] This involves taking our representations of the world — ideas, stories and values — as objects of knowledge. These objects are mental tools, which are used to form a world view. Since ideas are not universal or unchanging, these objects are necessarily contextual and dynamic. A consciousness of these objects of knowledge — concepts — and reflection on them — theorising — is an action, in and of itself.

This action — theorisation — could be said to involve three steps: identifying significant concepts, critiquing these concepts and reimagining these concepts. The many forms of theory emphasise one or other of these steps more than the others; our chapter will draw on them all in different contexts.

1.2 Why does Theory Matter?

Theory can be used to describe the world, but also to change it.

We are constantly engaging in theory — theorising — insofar as we reflect on the concepts we use. Many of the concepts used in daily life are taken for granted; they form our common sense. Paying attention to how we develop ideas and values enables a broader consciousness of how these concepts contribute to the formation of a shared world view.

A first step in theorising something is to identify specific significant concepts. We might consider examples from the dominant western perspective, which form aspects of a shared common sense. Reflecting on these concepts — how and why they represent this particular perspective — helps us to see that these ideas or stories are the building blocks of knowledge in this context, but not in every context. The following examples draw attention to this particularity. Reflection on the concept of democracy — as the authority of the demos or the people — prompts an attention to and questioning of the meaning and significance of democratic values and political community. Alternatively, reflection on the concept of nature — as the world apart from humans — prompts an attention to and questioning of this conventional separation and its consequences.

Concepts, as representations of ideas and values, are not neutral but particular. Which ideas and values are crystallised into concepts, and how they are parsed as facts or narrated as stories, have bearing on the significance and authority attached to them. This is why theory matters: ‘It matters … what thoughts think thoughts.’^[2]

1.3 What is Legal Theory?

Legal theory is thinking about legal thinking.

Theorising about law means reflecting on the concept of law — as a representation and exercise of authority. This prompts an attention to and questioning of the ideas and values that underpin law, the stories that shape law, and how law has developed as an idea. For example, we might reflect on the meaning of rights, which conventionally turns on dominant ideas of freedom and autonomy. What is a right? Who or what has rights? Why are some rights prioritised over others?

We are constantly engaging in theory, including legal theory, insofar as we reflect on the concepts we use. Theory is not descriptive of law; rather, it helps us to understand, make and change the way law is understood.

As an intellectual discipline, ‘legal theory’ (also called jurisprudence or legal philosophy) does this intentionally and systematically. This discipline adopts a variety of methods and forms, and it is shaped by different intellectual traditions. In Australia, legal theory has been predominantly drawn from a tradition of legal ideas and values associated with European and British law, exported via colonisation across the world. A more expansive field is now acknowledged, encompassing different sources and forms of law, including First Nations legal traditions and jurisprudences.

1.4 What Does Legal Theory Do?

Legal theory is a reflective practice, with value and meaning.

To engage in theorisation is to step back from common sense assumptions and to reflect on the meaning and value attributed to the concepts that organise our daily lives. This reflective practice is often counterintuitive, as in the well-cited quip: ‘Don’t just do something, stand there!’ To pause and reflect may be discomforting, disorientating and disarming. Acknowledging the contingency of our world view prompts a perspectival shift, with consequences for ourselves and others.

Once we acknowledge that concepts are not universal but particular, emerging in different contexts and places, we can begin to question and challenge — to critique — these concepts. Critique is reflection on ideas: their foundations, limitations and political consequences. For example, we might critically reflect on the concept of property within the western legal tradition, which turns on the claim to and defence of an exclusive right to a place or resource. This critical reflection enables us to perceive the contingency of this idea — in time and space, and in how it reflects the shared ideas and values of a particular community.

1.5 What is the Relationship Between Theoretical Consciousness and Climate Consciousness?

Theoretical consciousness is critical to climate consciousness.

Theory — as a reflective practice — engenders an awareness of the ideas and values that define our world view and lived experience. We can perceive the limits of our descriptions and representations of the world and begin to imagine other possibilities. Becoming conscious of how and why we think what we do matters.

Becoming a climate conscious lawyer is both a pathway to awareness and a call to action. Legal theory prompts an awareness of the contingency and flexibility of ideas and values, which often appear as solid organising concepts but are revealed to be contestable. This does not mean we can avoid or ignore doctrinal law and the limited available means of changing it; rather, its political power and exercise of authority shape our lives. But developing an awareness of how ideas and values are represented and authorised in law enables us to embark on a third step — reimagining.

Theory is an activity — interpreting, experimenting and imagining — all of which offer the opportunity to take action for change. The famous ‘Thesis Eleven’ of Karl Marx, inscribed on his tomb in London, reads ‘Philosophers have only interpreted the world in various ways — the point however is to change it’.^[3] Marx was instrumental in redirecting philosophy so that it could be used to help change the world; in the 21st century much theory and philosophy aims at promoting change in politics, economics, law, society and other fields of human endeavour. Reimagining law is therefore a mode of reform, not only of law itself but also of the perspectives that inform and shape law. A theoretical consciousness offers strategies with which to question and challenge the nature and authority of law, including its common sense assumptions, sources and values. This reflective practice is critical to becoming a climate conscious lawyer.