Download this publication - PULP

362 Chapter 15
However, let us assume that the courts and other political institutions
adopted an experimentalist approach – replete with participatory bubbles
and a commitment to shared constitutional interpretation. One must
remember that one of the virtues of the experimentalist approach is that it
is not static. New challenges to the general norms set by the courts, the
legislature and the executive may arise. These new challenges will likely
bring a host of new stakeholders – and thus new participatory bubbles.
Experimentalism – especially in law and the social sciences – is a
compelling answer to minimalism and absolutism because it recognises (a)
the ability to extract information to create norms that reflect the lived
existence of people affected by the basic law; and (b) that the circumstances
governed by the basic law may change in ways unanticipated by the
previous constitutional norms set by political institutions (and their
stakeholders). Here is the takeaway: The norms created by the courts or
understood by some other political body are understood to be rolling norms
that will be subject to change where and when the exigencies of the moment
require such change. 53
This kind of language is not new to South African politics and the basic law
that both amplifies and constrains that politics. In one of the first white papers
on primary and secondary education in a post-apartheid South Africa, then
Minister Bengu wrote:
Policies are stated in general terms and cannot provide for all situations. Our
legacy of injustice and mistrust continuously throws up problems which need
the wisdom of Solomon to settle. In this protracted transitional period, in
which new policies are being developed and implemented, the chances are
that we shall collectively make many mistakes, either in conception or
execution. They must be recognised and corrected. The possibility of damage
will be reduced if new policies are based on knowledge of our charter of
53
As everyone knows from American police television shows, Miranda v Arizona established
a clear normative basis for the right to remain silent once a person finds herself in police
custody. Dorf and Friedman show that the Miranda Court openly invited Congress to
address those concerns afresh. Congress did not (genuinely) do so. When the government,
in US v Dickerson, sought to uphold its post-Miranda legislation, the Dickerson Court noted
that too much time had passed (34 years), and that the Court’s normative position in
Miranda had become accepted by law enforcement officials and citizens alike as
normatively legitimate. Dorf and Sabel’s engagement with drug treatment courts does not
deny the normative content of the law those courts enforce. Rather, they demonstrate that a
court designed to engage particular kinds of problems and provided with information
from (and the experience of) multiple stakeholders (counsellors, doctors, treatment facility
personnel, lawyers for all concerned parties, police, and the judge herself) have a greater
likelihood to overcome various cognitive deficits and arrive at a solution better for the
addict (an opportunity for rehabilitation) as well as the commonweal (less recidivism and a
less expensive resolution). Experimental constitutionalism recognises that the norms
themselves may change over time as participants in a form of life – say drug treatment courts
– recognise the kind of interventions that work and the kinds of interventions that do not.
The alteration of norms (more or less incarceration, more or less rehabilitation) will flow
from the experience of various actors who have worked in this domain over time. Finally,
experimental constitutionalism does not eschew a normative framework – nor even a deep,
normative framework. Indeed, the very word ‘constitutionalism’ places experimental
constitutionalists within a very explicit, specific, and constraining, Western value order –
one that South Africa shares (in theory).