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360 Chapter 15
and policies designed to fulfil those constitutional norms. Over time, courts,
state actors and non-state actors will have the opportunity to determine
whether various ‘socio-political experiments’ have achieved the ends set for us
by our basic law (as interpreted by the courts, the legislature, the executive and
non-state actors). We will, in instances of policy failure, also have an
opportunity to decide whether the norms or the ends set by the courts, the
legislature, the executive and non-state actors constitute the best possible gloss
on our basic law. Shared constitutional interpretation relies, less upon a
principled dialogue about norm setting and more on rough and tumble
engagement) between the courts, the co-ordinate branches of government, and
the public that is reflexive, as well as forward and lateral looking.
Second, experimental constitutionalism relies heavily on participatory
bubbles. 45
These bubbles are court-initiated or political structures designed to
ensure that ‘meaningful engagement’ about optimal outcomes takes place. For
example, a court might set out a general normative framework within which
44 how different doctrines operate in practice and maintain the space necessary to make
revision of constitutional doctrines possible in light of new experience and novel demands.
In this regard, the Constitutional Court might be understood to engage in norm-setting
behaviour that provides guidance to other state actors without foreclosing the possibility of
other effective safeguards for rights or other useful methods for their realisation. Fourth,
a commitment to shared interpretations ratchets down the conflict between co-ordinate
branches and levels of government. Instead of an arid commitment to separation of
powers and empty rhetorical flourishes about courts engaging in legal interpretation not
politics (Ex parte Chairperson of the Constitutional Assembly: In re Certification of the
Constitution of the Republic of South Africa, 1996 1996 4 SA 744 (CC) paras 26 - 28), courts
are freed of the burden of having to provide a theory of everything and can set about
articulating a general framework within which different understandings of the basic text can
co-exist. Indeed, the courts and all other actors have more to gain from seeing how
variations on a given constitutional norm work themselves out in practice. Put slightly
differently, shared constitutional interpretation creates the space for different actors in
different places or with different briefs to try doing things differently, but constitutionally.
The different means may show us which ways of doing things that are more (or less)
successful. Or the different means may shed new light on – or change our understanding of
– the very constitutional ends the varying strategies seek to promote. See MC Dorf ‘The
domain of reflexive law’ (2003) 103 Columbia LR 384.
45 Whereas a scheme of shared constitutional interpretation introduces an experimentalist
element into the upper tiers of government institutions, the physical metaphor of bubbles is
meant to convey three qualities of experimentation and engagement in smaller-scale
institutional processes. First, processes of deliberation are a natural part of ongoing social
interactions. They originate when challenges to a given institutional authority accumulate
and finally come to a boil: just as bubbles form after pressure builds up and escape to the
surface of a liquid. Second, bubbles are meant to suggest limits on the scope of
deliberation. Bubbles only enclose a small amount of space – both in terms of the issues
debated and the number of participants. Third, bubbles are ephemeral. After satisfactory
resolutions emerge from processes of participatory deliberation, the raison d’être for such
processes ceases to exist. Participants can return to their more routine lives. Fourth,
experimentalists recognise that deliberation does not, necessarily, lead to better outcomes.
It can, quite often, lead to a greater polarisation of positions. See S Sturm ‘The promise
of participation’ (1993) 78 Iowa LR 981; C Sunstein Infotopia (2007). Both S Sturm and
C Sunstein note how deliberation can lead, over time, to greater discord and less accurate
decisions – for a variety of reasons: from the ‘big dog’ problem to a propensity toward
‘group-think’. Even deliberative democrats recognise such limits without sensing a need to
forsake deliberation. See A Gutmann and D Thompson Democracy and disagreement (1996).