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The relationship between theory and practice across forms of life 355
citations while you can (and if you have the aptitude), then settle for a therapist’s
more indirect affect and consolation.)
4 Whatever works: The case for experimentalism in
South African constitutional law
The time has arrived to turn from golf and baseball to the matter at hand.
Another set of challenges to Dworkinian maximalism – and its reification of
theory – comes from two related quarters: choice architecture and
experimental constitutionalism. Both turn on a particular response to and
rejection of the kind of grand theorising that Dworkin offers us in works
like Law’s empire. For reasons set out below, these two realist responses have
far greater traction with respect to South African constitutional law than
Fish’s rabid super-pragmatic rejection of theory. There is, however,
another challenge to theory on the South African playing field –
avoidance, or South African minimalism. It is to an engagement with this
anti-theory theory that I turn before identifying ways of building a better
mousetrap.
4.1 South African minimalism and avoidance
In its least pernicious form, the core principle of minimalism has been
articulated by the Constitutional Court in Mhlungu as follows: ‘[W]here it is
possible to decide any case, civil or criminal, without reaching a constitutional
issue, that is the course that should be followed.’ 32 On its face, this salutary rule
seems unobjectionable. What is, objectionable, even on the Court’s own terms, is
turning this salutary rule into a full-blown jurisprudence in which a court must
never ‘formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied’. 33 That rule sounds very much like what
Deputy Chief Justice Moseneke has in mind when he writes:
First, those who plead cases before court are themselves steeped in a tradition
that seeks to preserve rather than innovate legal reasoning and rules, particularly
within the sphere of the common law. The result is that reliance on
constitutional provisions is often half-hearted and an afterthought. Sometimes
the constitutional points taken are not borne out by the factual matrix. It is
trite that courts cannot fabricate points for parties; they have to do with the
case materials at hand. 34
My critique of such South African minimalism takes the following fivefold
form. The first objection is that this early statement in Mhlungu flatly
contradicts the Court’s later statement in Mhlungu as to the nature of
32 S v Mhlungu 1995 3 SA 867 (CC) para 59.
33 Zantzi v Council of State, Ciskei 1995 4 SA 615 (CC) para 8.
34
D Moseneke ‘Transformative constitutionalism: Its implications for the law of contract’
(2009) Stell LR 1, 11.