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388 Chapter 16
as to how empiricism and an experimental approach helps in the quest to
explicate normative questions.
Woolman also fails to recognise a clear tension between his approval
of experimental constitutionalism and his critique of minimalism. Indeed, in
laying out his version of experimental constitutionalism, he contends that
‘the process of general norm-setting by the courts that initiates a process of
rolling best practices by other parts of the state never gains sufficient traction
when constitutional norms remain radically under-theorised’. 90 However,
the problem is that the more detailed a court’s norm-setting prescriptions are,
the less room is left for experimentation and finding out ‘what works best’. A
defender of the minimalist approach to adjudication would argue that one of
its chief virtues is precisely the use of narrow adjudicative techniques that
leave open the possibility of change in the future. This incremental approach
would allow one to test a particular norm in a narrow way and allow
flexibility for modification in the future. The more detailed and
comprehensive the norm setting of the courts the less flexibility there would
be in future and the less room there would be for shared constitutional
interpretation and participatory bubbles to make a difference. Experimental
constitutionalism thus seems to support a minimalist approach to
adjudication rather than providing an alternative to it.
Our argument is not that experimental constitutionalism as articulated
by Woolman does not have a number of virtues nor that it can never provide
a useful methodology in constitutional matters. However, we contend that it is
an incomplete method in the realm of law and fails to provide us with a
deeper understanding of the relationship between theory and practice in this
domain. Recognition of the distinctive features of legal adjudicative
practices is what is needed. We have argued that judges are inevitably
required to engage in the realm of normative reasoning and that,
consequently, the method that is required is one akin to that adopted in the
realm of political philosophy where a reflective equilibrium is sought between
considered convictions and theoretical understandings. New circumstances
will of course disrupt an easy equilibrium and require the revision of
settled doctrine. Adjudicative practices are also essentially interpretive
which requires a greater degree of abstract reasoning than more applied
practices. An experimental approach to institutional structures and possibly
even rules may be consistent with this method. However, any account of
adjudicative practice cannot be ‘experimentalist’, ‘pragmatist’, or ‘empiricist’
alone and must include an understanding of the role that normative
reasoning plays in the development of law and its distinctive
methodologies.
90 Dworkin (n 1 above) 25.