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The relationship between theory and practice across forms of life 359
Africa’s basic law – or the US Constitution – are up for grabs. (Nor does
Sunstein.) Were the South African Constitution to set no clear, normative
floor, then we would not have binding constitutional law and our
Constitution would be no more than a trifle. 41
For a variety of reasons that have to do with cognitive biases and group
dynamics, Sunstein does not think much of the tendency in the legal academy to
reify deliberation as a problem-solving mechanism. I share his views about
cognitive biases in deliberative group practices. 42 But what is of interest to me
and import to this article is that he has become something of an empirical
constitutionalist when it comes to building better theories about the normative
content of a country’s basic law.
4.3 Experimentalism and experimental constitutionalism
This last section looks at the work of a growing contingent of constitutional
law scholars who have recognised that problems of information deficit, and
limited judicial competence can be resolved by a subtle recasting of existing
constitutional doctrines, judicial remedies, and special court structures that
extract better information and increase the level of acceptable legal norms
through the use of more mindful interventions. 43 Here I set out the theory in
brief:
First, experimental constitutionalism relies heavily on co-operation (and
shared constitutional interpretation) 44 between the co-ordinate branches of
government. The general norm-setting practised by the courts is supplemented
by various attempts by other state actors and non-state actors at crafting laws
41 When reading Bilchitz and Tuovinen’s response, one must keep in mind that both
Sunstein and I agree that deep and widely-shared normative commitments must exist before
social, moral, legal and constitutional experiments secure any traction.
42 See S Woolman et al ‘Evidence of patent thickets in complex biopharmaceutical
technologies’ (2012) 53 IDEA: The International Journal of Intellectual Property –
(forthcoming). (Several reasons exist for the failure of perfectly ‘rational’ actors to fail
to deliver well-designed intellectual property to downstream markets, including the
cognitive biases of licence holders and the attributive biases of the participants. In sum,
human beings generally tend, just like ordinary owners of upstream biomedical
research patents, to overvalue their own contributions and property).
43 See, eg, MC Dorf & CF Sabel ‘A constitution of democratic experimentalism’ (1998)
98 Columbia LR 267; S Woolman The selfless constitution: Experimentalism and flourishing
as foundations of South Africa’s basic law (2012).
44 Shared constitutional interpretation stands for four basic propositions. First, it supplants
the ‘arid’ notion of judicial supremacy with respect to constitutional interpretation. All
branches of government have a relatively equal stake in giving our basic law content. Second, it draws
attention to a shift in the status of court-driven constitutional doctrine. While courts retain
the power to determine the content of any given provision, a commitment to shared
constitutional interpretation means that a court’s reading of the constitutional text is not
meant to exhaust all possible readings. To the extent that a court consciously limits the
reach of its holding regarding the meaning of a given provision, the rest of the judgment
should read as an invitation to the coordinate branches or other organs of state to come up
with their own alternative, but ultimately consistent, gloss on the text. Third, shared
constitutional competence married to a somewhat open-ended or provisional
understanding of the content of the basic law is meant to increase the opportunities to see