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386 Chapter 16
Woolman claims, ‘lose their cohesion – and the pressure to produce better
than zero-sum outcomes – if the courts fail to articulate the norms within which
a preferred solution is meant to occur’. 82 Fourthly, Woolman also elaborates
upon the notion that experimentalism involves a continued openness to
change and an ‘experimental attitude’ as to what would work best: ‘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.’ 83
Finally, this approach links to Woolman’s critique of minimalism when he
argues that minimalism is not a virtue in itself. Woolman claims, following
Sunstein, that legal rules inevitably involve shaping the social environment.
This method of proceeding should involve ‘[u]nderstanding one’s
environment, testing what works and what doesn’t work in that
environment, putting positive results of one’s experiments into practice, being
a choice architect – now that is a virtue’. 84
Whilst we have agreed with Woolman’s critique of minimalism and
sought to develop it, we find some of his passages on experimentalism
puzzling in light of the rest of his argument. First, as Woolman outlines it,
experimentalism appears to involve certain procedural suggestions for
developing what ‘works best’ in a constitutional system. In his enthusiasm
to make Sunstein work for his argument, Woolman ultimately writes
approvingly of a pragmatist method of proceeding. 85
Fundamental to this approach, is the idea that institutions and laws
should be developed ‘from the ground up’ and according to what ‘works
best’. As an account of law this is fatally flawed as it fails to recognise the way
in which law is infused with a normative dimension. In the realm of
engineering, if we wish to construct a bridge, it is crucial that it does not
collapse. What works would thus be reasonably transparent. An
experimental mode of proceeding, however, would even here be dubious
given that we now have a large body of engineering theory that can help us
determine in advance how to build a bridge that will not collapse. The same
would appear to be true of golf. In law, however, the very notion of ‘what
works’ is fundamentally under-specified and can only be filled out by normative
considerations.
Dworkin, for instance, imagines a judge having to decide whether
abortion is constitutionally permissible and approaching the question on the
basis of ‘what works best’. 86 For pro-choice individuals, what works best
would involve enabling individuals (and particularly women) to choose
81 Woolman (n 5 above) 361 - 362.
82
Woolman (n 5 above) 362.
83 As above.
84 Woolman (n 5 above) 358.
85
Woolman (n 5 above) 357 - 359.
86 Dworkin (n 1 above) 63 - 65.