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Theory, practice and the legal enterprise 385
of law cohere and, thus, ultimately as to how one is to reason in relation to the
Bill of Rights. The consequent adverse impact on the rule of law should be
clear. As Woolman stated in his early criticism of Beinash:
My concern stems mainly from the confusion that will invariably follow from
decisions that are rendered in either a haphazard or a misleading manner.
Lower courts, advocates, government officials and ordinary citizens are
obliged to comply with the edicts that issue from the Constitutional Court. The
easier those edicts are to understand, the greater the likelihood of compliance:
from High Court to lowly commoner. The Constitutional Court itself must be
able to follow its own judgments. This is not a matter of stare decisis. It is,
rather, a point about the building of a coherent body of jurisprudence. 78
Secondly, this lack of coherence can lead to ad hoc, ungrounded decisions.
Thirdly, the Court itself avoids theoretical analysis where such reflection
could counteract the applied decision it wishes to reach: Theory as a corrective
upon unrestrained practical intuitions is thus rendered useless. 79 Without
adequate theoretical engagement, the process of reflective equilibrium cannot
even get started.
We then agree with Woolman that the Court’s liaison with minimalism
is undesirable for the constitutional enterprise. In the last section of this article,
we turn to an assessment of Woolman’s alternative: a form of experimental
constitutionalism.
Part 3: Experimental constitutionalism and minimalism
Woolman’s outline of experimental constitutionalism embraces several
elements. First, it involves co-operation between different branches of
government in a project of shared constitutional interpretation. Woolman
claims that, over time, ‘courts, state actors and non-state actors will have the
opportunity to determine whether various ‘social 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’. 80 Secondly, ‘participatory bubbles’ are
central to experimental constitutionalism. This essentially involves setting up
structures to ensure that meaningful engagement occurs concerning optimal
outcomes. Broadening community participation in such institutions as the
South African Human Rights Commission or even court hearings would
illustrate what is meant in this context. 81 Thirdly, participatory bubbles,
78 Woolman (n 66 above) 178.
79
The Court’s approach gives credence to the charge that has been levelled against judges
by certain (American) Realist legal theorists and by the critical legal studies movement.
For a classic exposition of the latter’s line of thinking, see eg D Kennedy ‘Form and
substance in private law adjudication’ (1976) Harvard LR 1865.
80 Woolman (n 5 above) 360 (our emphasis).